STATE OF NEW JERSEY v. JOSEPH COOKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4265-04T44265-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH COOKE,

Defendant-Appellant.

_________________________________________________

 

Submitted March 21, 2006 - Decided June 27, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 98-01-0108.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel and on the brief).

John L. Molinelli, Bergen County

Prosecutor, attorney for respondent

(Jessica A. Gomperts, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Following the unauthorized entry of defendant Joseph Cooke into an apartment and his discovery while performing acts of homosexual fellatio, defendant was charged with two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts I and IV), two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (counts II and V) and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(2) (counts III and VI). He was convicted by a jury on one count of second-degree aggravated sexual assault, N.J.S.A. 2C:14-2c(2). At trial, defendant claimed consent as a defense to the charges. He has asserted that the police were called because the victim, who was observed by his roommates to be engaged in homosexual conduct, did not wish the roommates to know that he was bisexual.

Defendant was sentenced to a three-year term of probation and psychological counseling as needed. We affirmed defendant's conviction on appeal, but as the result of the State's cross-appeal from the sentence as an abuse of discretion, we reversed and remanded the case for resentencing. State v. Cooke, 345 N.J. Super. 480 (App. Div. 2001). Certification was denied. State v. Cooke, 171 N.J. 340 (2002). Defendant was resentenced to four years in custody as a third-degree offender, with three years of parole supervision, and ordered to comply with the requirements of Megan's Law, N.J.S.A. 2C:43-6.4. In a later appeal, the period of parole supervision was vacated, and defendant's Violent Crimes Compensation Board assessment was reduced to fifty dollars.

On March 30, 2001, defendant filed a petition for post-conviction relief (PCR), which was denied on August 11, 2004 without a hearing. Defendant has appealed from the order embodying that ruling.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

A. THE TRANSCRIPT OF THE GRAND JURY PROCEEDING CONTAINS SO MANY ERRORS THAT IT CANNOT BE RELIED UPON AS AN ACCURATE REFLECTION OF THE RECORD.

B. THE INDICTMENT SHOULD HAVE BEEN DISMISSED AS A RESULT OF THE STATE'S FAILURE TO PRESENT ALL EXCULPATORY EVIDENCE TO THE GRAND JURY.

C. THE INDICTMENT SHOULD HAVE BEEN DISMISSED SINCE THE STATE ELICITED IRRELEVANT AND UNDULY PREJUDICIAL TESTIMONY AT THE GRAND JURY PROCEEDINGS.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

A. THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

B. THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT VI WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.

POINT III

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO ADVISE THE COURT THAT JURORS HAD OVERHEARD CONVERSATIONS REGARDING THE CASE.

B. TRIAL COUNSEL FAILED TO CALL CRUCIAL WITNESSES.

C. TRIAL COUNSEL FAILED TO PROPERLY PRESENT THE MOTION TO DISMISS.

D. TRIAL COUNSEL FAILED TO EXAMINE A STATE WITNESS AS TO WHETHER DEFENDANT COMPELTED THE MARANDA WAIVER FORM.

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT V

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

POINT VI

THE LOWER COURT ERRED IN FAILING TO CONDUCT

AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VIII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT IX

THE COURT'S DENIAL OF DEFENDANT'S POST-CONVICTION RELIEF APPLICATION MUST BE REVERSED AS THE COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY R. 3:22-11.

(Not Raised Below.)

With one exception, we find defendant's claims to be procedurally barred by R. 3:22-4 or R. 3:22-5, or lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We focus on the PCR court's determination not to hold an evidentiary hearing with respect to certain of defendant's allegations of ineffective assistance of trial counsel. In that regard, defendant certified in his PCR petition:

2. During the trial, and after the jury had already been impaneled, I was outside the Court house with my sister Theresa Bellina and my friend Anita Harris as the three of us wanted to smoke cigarettes. At the time, Anita stared talking about the case and joked with me by saying "you gave bad head and that's why you are here." Kidding around, she said that I have to stop sneaking into people's houses. My sister said that "you didn't have any complaints until now, see what faggots get." This was essentially the tone of the conversations. They know that I was innocent, so they were making fun of the trial and what had happened to me.

3. Unfortunately, I noticed that there were two ladies from the jury that were also outside and were approximately four feet away from us. We did not notice the jurors at first because our backs were turned to them. Nonetheless, these two ladies were looking right at us. After we returned to Court, I immediately advised my trial attorney of what had taken place, but she told me not to worry about it, saying that it was "nothing." My lawyer assured me that the jurors would be instructed by the Judge that they should consider only what they hear in the Courtroom.

4. Another incident occurred in the elevator inside the Court House. There were approximately six people in the elevator, including myself and my trial lawyer. Me and my lawyer were taking abut the case. Specifically, we were discussing the alleged victim's trial testimony and how my lawyer thought the case was going. When we went into the Courtroom, and everybody was asked to rise, I noticed that one of the female jurors was an individual that had been in the elevator, and undoubtedly, heard my conversation with my lawyer. Incidentally, this female juror was not one of the jurors that had overheard my conversation from outside. I immediately informed my attorney and asked her to advise the Judge about what had happened outside and in the elevator. Notwithstanding my request, trial counsel again informed me that it was not important and that the jury would be instructed that they are only to consider the facts offered during the trial while in the courtroom.

5. Finally, there were four individuals present at my trial, all of whom wanted to testify on my behalf regarding my good character. My friend Anita Harris and my sister Theresa Bellina, the individuals aforementioned, as well as my friend Kathy Kyes and my Godmother Carletiss Smalls could all have testified regarding their knowledge of my good character and reputation in the community. Additionally, Ms. Harris had probative and factual testimony regarding my prior relationship and background with L.B. [the victim] prior to the alleged incident. Incredibly, although my trial attorney asked me to have these individuals appear in Court so that they could testify, my trial attorney did not call a single witness at trial on my behalf.

To establish a prima facie claim of ineffective assistance of counsel, defendant was required to demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). That test requires not only a demonstration that counsel's performance was deficient, in that she made errors so serious that she was not functioning as the "counsel" guaranteed by the Sixth Amendment, but also that counsel's deficient performance was so serious as to have deprived defendant of a fair trial whose result is reliable. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Fritz, supra, 105 N.J. at 58.

When a cognizable claim of ineffective assistance is presented that relies upon evidence outside the record, the truth of which cannot be determined on the papers before the court, an evidentiary hearing is required to permit an evaluation of the matters alleged in light of trial counsel's testimony with respect to the strategic decisions made during trial. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10.

In this case, we find that defendant's allegations, if true, are such as to suggest the reasonable likelihood of success of his claim under the two-prong test established by Strickland and Fritz. Defendant has detailed two instances of alleged jury taint, consisting of the outdoor conversation allegedly overheard by two jurors and the elevator conversation allegedly overheard by another. In the first, the repartee between defendant, his sister, and his friend could well have been understood as an acknowledgment by the sister of defendant's guilt with respect to the charges for which he was on trial, or at least, as a concession that defendant had in the past engaged on a continuing basis in conduct similar to that alleged in the indictment. Defendant's allegations regarding the second conversation are less precise. However, if true, it appears that matters of trial strategy were disclosed therein. Knowledge by a juror of either could have affected the outcome of trial.

Further, if in fact these conversations occurred and were likely overheard, they should have been brought to the court's attention, so that an individual voir dire of the jurors could have occurred to determine the existence and extent of any taint, State v. R.D., 169 N.J. 551, 558 (2001), and an evaluation could have been made by the court of the need to excuse the tainted jurors, declare a mistrial, or deliver a strongly-worded instruction regarding the events that had taken place. Id. at 558-59. Because no mention of these alleged events was made, none of these steps occurred.

In the circumstances, we find it to have been an abuse of the court's discretion to have determined not to hold an evidentiary hearing to determine the veracity of defendant's allegations, the extent of trial counsel's knowledge of them, and the basis for her strategic decision in light of what she knew. We thus reverse the court's order denying post-conviction relief and remand the matter for a hearing in accordance with State v. Preciose.

We do not find that defendant's allegation that he was deprived of the opportunity to call character witnesses to have been sufficient to form an independent basis for a claim of ineffective assistance of counsel, particularly since a proffer of the testimony of each was not set forth in accompanying certifications by the proposed witnesses. Nonetheless, as the result of defendant's defense of consent, we are concerned by defendant's claim that he was precluded from calling Anita Harris as a witness to testify to her alleged knowledge as to defendant's prior relationship with the victim. We thus do not foreclose exploration of this topic at the evidentiary hearing that we require in this matter.

Reversed and remanded for further proceedings in accordance with this opinion. Jurisdiction is not retained.

 

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A-4265-04T4

RECORD IMPOUNDED

June 27, 2006