STATE OF NEW JERSEY v. DARIUS MURPHY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0708-04T40708-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIUS MURPHY,

Defendant-Appellant.

__________________________________________

 

Submitted: November 29, 2006 - Decided May 22, 2007

Before Judges A. A. Rodr guez, Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 96-04-1271.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jane M. Personette, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Darius T. Murphy, appeals from the August 30, 2004 order denying his petition for post conviction relief (PCR). We affirm in part and reverse in part.

In 1997, defendant was tried jointly with co-defendants Keith Henderson, Michael Ricks, and Keith Koonce. Another co-defendant, Victor Parker, had pleaded guilty pursuant to an agreement and testified for the State. At the joint trial, defendant was convicted of felony murder, N.J.S.A. 2C:11-3a(3); first degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense to murder; second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and -15-1; two counts of first degree robbery, N.J.S.A. 2C:15-1; third degree terroristic threats, N.J.S.A. 2C:12-3; fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4); third degree endangering the welfare of a minor, N.J.S.A. 2C:24-4a; third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The judge denied motions for a new trial and for a judgment of acquittal. After appropriate merger of convictions, the judge imposed concurrent terms aggregating thirty years with a thirty-year parole disqualifier. We affirmed. State v. Darius Murphy, No. A-2262-97T4 (App. Div. June 15, 1999), certif. denied, 162 N.J. 485 (1999).

A summary of the evidence is fully set forth in an earlier opinion. For the sake of providing a context for the present discussion, suffice it to say that the State's proofs showed that three masked men accosted Janice Gordon on the street in Irvington. Their target was her boyfriend, Corey Davis. The men forced Gordon to admit them into her apartment. Davis was sleeping there. The men demanded money. Davis was shot and killed in the course of a struggle. According to Parker, he, along with defendant, Henderson, Ricks, and Koonce, participated in the robbery. Parker further testified that defendant was the one who approached Gordon and was holding the gun that fired and killed Davis. No motion for severance was made prior to trial.

After the joint trial, at Henderson's sentencing hearing, he implied that he would have accepted a plea agreement similar to the one accepted by Parker. However, he did not want to accept the agreement because it required him to implicate defendant and the others. Henderson implied that defendant, Ricks and Koonce, were not involved in the robbery. Subsequently, Henderson died without making any further comments on this matter to the court.

Defendant filed pro se, a first petition for PCR raising the following contentions: (a) trial counsel was ineffective for not investigating defendant's alibi; (b) trial counsel was ineffective for not moving for severance in order to present to the jury detail of Parker's other crimes, or in the alternative counsel should have requested a jury instruction that "defendant was not involved in [Parker's] other crimes"; (c) defendant was denied a fair trial because the judge did not instruct the jury that "defendant was not involved in the other crimes committed by [Parker]"; (d) the prosecutor violated defendant's right to due process by failing to disclose the exculpatory statements made by Henderson, that Henderson and Parker "were involved in the charged crimes and that defendant and the other defendants on trial were not involved."; (e) trial counsel was ineffective for not seeking a severance in order to present to a jury evidence of Henderson's statement; (f) the cumulative errors of trial counsel deprived defendant of a fair trial; (g) the accumulation of trial errors deprived defendant of a fair trial; and (h) defendant was denied the effective assistance of appellate counsel, who did not raise the above issues.

The PCR matter was referred to the Office of the Public Defender. A supplementary brief was submitted by counsel. Counsel raised as an additional issue that a juror (B.D.) may have failed to disclose during voir dire that her sister was a jail guard at the Essex County jail.

The judge that presided at trial denied the PCR petition in a written opinion. The judge concluded that an evidentiary hearing was not warranted.

On appeal, defendant contends:

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND WAS PREJUDICED AS THE RESULT OF IRREGULAR INFLUENCES DURING JURY SELECTION.

The Court Below Erred In Declining To Conduct An Evidentiary Hearing Regarding The Failure Of One Of The Deliberating Jurors, [B.D.], To Disclose That Her Sister Was A Guard At The Essex County Jail Where Defendant Was Being Held Pending Trial.

Defendant Has Been Prejudiced By The Incomplete Verbatim Record Of Jury Voir Dire.

And The Court Below Erred In Failing To Try To Reconstruct The Lost Record.

Defendant filed a pro se supplemental brief making a similar contention. He argues:

JUROR [B.D.'S] FAILURE TO DISCLOSE DURING JURY SELECTION VOIR DIRE THAT HER SISTER WAS A GUARD AT THE ESSEX COUNTY JAIL, WHERE DEFENDANT WAS HELD PENDING TRIAL, IF DELIBERATE, IS EVIDENCE FROM WHICH HER BIAS CAN BE PRESUMED; AND AS A RESULT, DEFENDANT WAS DENIED HIS FEDERAL CONSTITUTIONAL RIGHT TO A TRIAL BY A FAIR AND IMPARTIAL JURY.

Five years after his conviction, defendant learned that Juror B.D.'s sister was a guard at the Essex County Jail. Defendant ordered the transcript of this particular jury voir dire. However, he was advised that the transcript was not available. Thus, it is unknown if Juror B.D. disclosed during jury selection that her sister was in law enforcement. Defendant requested that the court order an inquiry of all female staff members at the Essex County Jail to see if anyone was related to Juror B.D.. We disagree that such a wide ranging inquiry is needed.

First, a more intensive and thorough search must be made to locate the transcript of the second day of jury selection. Trial courts and attorneys make a concerted effort to "create a record." This is not an empty exercise. The transcripts of such record should be carefully indexed and stored by court personnel. Second, if the transcript cannot be located, the trial judge and counsel should try to reconstruct the record in accordance with R. 2:5-3(f). The focus of the inquiry is to determine whether Juror B.D. disclosed her connection to the sister who worked as a jail guard at the time of trial and whether she indicated that this would or would not affect her judgment. Failing this, the court should voir dire Juror B.D.

In conducting this inquiry, the judge should be mindful that a defendant's right to a fair and impartial jury is fundamental. State v. Tyler, 176 N.J. 171 (2003); State v. Williams, 190 N.J. Super. 111, 114 (App. Div. 1983). New Jersey courts have repeatedly "invalidated judgments where a juror's inaccurate answer to a question propounded in the jury voir dire precluded a litigant from exercising a peremptory challenge. State v. Scher, 278 N.J. Super. 249, 263 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995) (citing Wright v. Bernstein, 23 N.J. 284 (1957); State v. Williams, 190 N.J. Super. 111 (App. Div. 1983); State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976)). More importantly, defendant must demonstrate that, "had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror." State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000) (citing Wright, supra, 23 N.J. at 294); see also State v. Farmer, 366 N.J. Super. 307, 321 (App. Div.), certif. denied, 180 N.J. 456 (2004) (Payne, J.A.D., concurring) (citing a line of cases that hold that omission or falsification of information by a juror during voir dire will constitute grounds for reversal of a conviction without a showing of prejudice if it can be shown that a peremptory challenge would have been utilized to excuse a juror. Id. at 321 (citations omitted)). Absent this showing, "the voir dire omission is harmless[,] . . . because if a litigant would not have challenged the juror, the litigant could not have been prejudiced." Cooper, supra, 151 N.J. at 350.

Defendant also contends that:

THE EXCLUSION OF DEFENDANT FROM SIDEBAR CONFERENCES DENIED HIM THE OPPORTUNITY TO BE PRESENT AT ALL STATES OF HIS TRIAL.

We disagree.

Criminal defendants have the right to be present at their own trial, and that right extends to presence during jury selection. State v. W.A., 184 N.J. 45, 53-4 (2005); State v. Whaley, 168 N.J. 94, 99-100 (2001). This is because "it is the defendant himself who plays the critical role in exercising the peremptory challenge." Id. at 54. Nonetheless, the right to be present at sidebar conferences is not automatic. Id. at 63. It must be requested by defendant, otherwise it can be considered waived. Ibid. As the Supreme Court held in State v. W.A., "a defendant who does not affirmatively request the right to participate in voir dire sidebars should be considered to have waived the right[.]" Ibid.

Here, there is no indication that defendant asked to come to sidebar. Moreover, W.A. was decided eight years after defendant's trial. In State v. Colbert, 190 N.J. 14, 24 (2007), the Supreme Court held that the holding in W.A. will be given prospective application only.

Defendant also contends:

THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING AS DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

a. Trial Counsel's Failure To Investigate Defendant's Alibi Defense Constituted Ineffective Assistance Of Counsel.

b. Trial Counsel Was Ineffective For Failure To Move For A Severance So That Defendant Could Be Tried Separately From His Co-defendants.

c. Trial Counsel Was Ineffective For Failing To Exercise One Of His Remaining Peremptory Challenges To Excuse Juror B.D..

d. Defendant Was Prejudiced By The Ineffective Assistance Rendered By Appellate Counsel.

e. For All Of The Foregoing Reasons, The Court Below Erred In Denying Defendant's Request For An Evidentiary Hearing To Address Defendant's Ineffective Assistance Of Counsel Claims.

We agree that an evidentiary hearing was necessary to dispose of some of these arguments.

Defendant alleged in a certification dated July 17, 2000, that he realized in October 1996 that he was with friends at "Skate 22" in Union on the evening of the crime for which he was convicted. He also alleges that he told his trial counsel about this alibi. However, the lawyer did not inquire about who the alibi witnesses were and instructed defendant that "he and the attorneys for the other defendants[] had decided to go with a general denial defense." In support of his claim of ineffective assistance, defendant filed the certifications of Hassan Faison, James Westry, and Terrell White, which stated that defendant was with them during the evening of September 7, 1995.

A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court has adopted the Strickland standard in evaluating ineffective assistance of counsel cases. State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to Strickland, a defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel has the heavy burden of proving that counsel's performance was deficient and that such deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. However, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Therefore, when arguing that counsel failed to conduct a pre-trial investigation or interview witnesses, a defendant "must assert facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).

Here, defendant has made a threshold showing to trigger an evidentiary hearing. The PCR judge should have held an evidentiary hearing in order to resolve the allegations of ineffective assistance by trial counsel that relief on facts outside the record. The testimony of trial counsel is necessary to determine whether his tactical decisions were based on a reasonable professional judgment.

Defendant also contends that he was prejudiced by the ineffective assistance rendered by appellate counsel. This contention is based on his argument that the deficiencies of trial counsel should have been heard on direct appeal. It is premature to consider this contention at this time. The issue must abide the PCR judge's decision following the evidentiary hearing. The PCR judge should consider whether the assistance rendered by trial and appellate counsel was ineffective.

Defendant also contends that:

THE COURT BELOW ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

In his supplemental brief defendant makes a similar argument. Defendant argues that:

the exculpatory statements made at sentencing by co-defendant Henderson qualify as admissible, newly discovered evidence warranting a new trial.

This issue was not directly addressed by the PCR judge. However, the PCR judge did address Henderson's testimony in his discussion of severance. The judge stated that, "Henderson never expressed, either directly or through counsel, any indication to the court that he would testify on [defendant's] behalf."

We also note that, the statements that defendant now argues qualify as newly discovered evidence, were made by a co-defendant, Henderson, while addressing the judge immediately prior to sentencing. These statements at sentencing are the only evidence that defendant can offer as to what Henderson's testimony would have been. The statements are equivocal and vague. Moreover, they were made after the joint trial was over. Therefore, Henderson's statement could not have been the basis of a pre-trial motion for severance.

Defendant has submitted the certifications of: Henderson's brother, Matthew Henderson; mother, Doris Henderson; and cousin, Jerome Gary, to the effect that Henderson told them that defendant was not involved in the robbery/murder. These hearsay statements attributed to Henderson are not admissible because Henderson is now deceased and no recognized hearsay exception applies. Therefore, they cannot be the basis for a new trial motion.

For newly discovered evidence to require a new trial in a matter, "defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was not 'discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). Furthermore, in reviewing new evidence claims, "[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." Id. at 187-88. For that reason, "[n]ewly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material is of sufficient weight that it would probably alter the outcome of the verdict in the new trial." Ibid.

Defendant also contends that:

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL OF THE TRIAL COURT'S DENIAL OF AN EVIDENTIARY HEARING.

THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF FOR THE GROUNDS HE RAISED IN HIS NOVEMBER 24, 2 003 AND JUNE 23, 2004 PRO SE PLEADINGS.

Defendant filed pro se a supplemental brief contending:

[PCR] JUDGE [] SHOULD HAVE RECUSED HIMSELF FROM SITTING ON DEFENDANT'S PCR PETITION BECAUSE PRIOR STATEMENTS MADE BY THE JUDGE REGARDING THE CREDIBILITY OF VICTOR PARKER PRECLUDED CONFIDENCE THAT THE JUDGE COULD REACH AN UNBIASED DECISION (Not Raised Below).

THE LOWER COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INFORMING DEFENDANT OF A FAVORABLE PLEA OFFER.

We conclude that these contentions are without merit and do not warrant detailed discussion in a written opinion. R. 2:11-3(e)(2).

That portion of the August 30, 2004 order denying PCR on the claims of ineffective assistance of trial and appellate counsel and the selection of Juror B.D. are reversed and remanded to the Law Division, Essex County for an evidentiary hearing, the remainder of the PCR order is affirmed.

Affirmed in part and reversed in part. We do not retain jurisdiction.

 

We are mindful that trial counsel is now a Superior Court judge. We trust the PCR judge will accommodate the schedule of this witness. For example, taking trial counsel's testimony via a telephone conference is a possible means of minimizing inconvenience.

(continued)

(continued)

15

A-0708-04T4

May 22, 2007