STATE OF NEW JERSEY v. OMAR PILGRIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3343-05T33343-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR PILGRIM,

Defendant-Appellant.

________________________________

 

Argued: November 13, 2007 - Decided:

Before Judges Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, 04-05-00434-I.

Alan Dexter Bowman argued the cause for appellant.

Gregory Fleming, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged in a four-count indictment with first-degree armed robbery in violation of N.J.S.A. 2C:15-1, second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a), third-degree possession of a firearm without a permit in violation of N.J.S.A. 2C:39-5(b), and fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4). Defendant was convicted of first-degree armed robbery and was acquitted of the three other charges. At the time of sentencing the judge treated defendant as a second-degree offender and imposed a sentence of eight years in state prison. The term of imprisonment was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring defendant to serve eighty-five percent of the sentence before becoming eligible for parole. In addition, the judge imposed five years of parole after release, as required by NERA for first-degree offenses.

The evidence at trial established that defendant pulled into a gas station and requested $15 worth of gasoline. The victim pumped the gas, but payment was not forthcoming. Defendant tendered partial payment of $3.75. Defendant purported to make two telephone calls. He refused to provide security, such as a credit card or driver's license, to ensure payment of the balance due. The victim tried to prevent defendant from leaving the gas station, but defendant demanded the money in the cash register and pointed an object at the victim. The victim moved out of the way and defendant exited the gas station. The victim recorded the license plate number of the vehicle. Defendant was quickly apprehended and the victim was brought to the scene of the arrest and identified defendant as the perpetrator.

At the police station the police apprised defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and defendant signed a Miranda waiver form at 1:00 p.m. The police matched defendant's fingerprints with ones on the public telephone at the gas station. Defendant admitted that he had been at the gas station, but denied that he possessed a weapon, telling the police that he had only a hat rolled up to look like a gun. The police found no gun in defendant's vehicle although they did find a hat. Defendant explained that he had no money and was under a lot of stress from financial problems. He claimed that he used the pay phone to call someone to bring money to the gas station. He was on his way to his girlfriend's home when he was apprehended. Defendant's testimony at trial was similar to his statement to the police.

Defendant presents the following issues for our consideration:

POINT I - DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).

POINT II - THE TRIAL COURT ERRED IN LIMITING LATISHA PILGRIM'S RECITATION OF THE CONTENTS OF THE TELEPHONE CONVERSATION WITH [DEFENDANT].

The basis for defendant's claim of ineffective assistance of counsel is an alleged failure to present a diminished-capacity defense based on defendant's attention-deficit, hyperactivity disorder and potentially diminished intelligence quotient. Defendant's counsel presented some information about his mental capacity at sentencing, but defendant contends that his attorney should have mounted a full-blown diminished-capacity defense to criminal responsibility.

In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the Sixth Amendment's guarantee of effective assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant by causing an unfair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

A defendant satisfies the first prong if he demonstrates that counsel's performance "fell 'outside the wide range of professionally competent assistance.'" [State v.] Castagna, . . . 187 N.J. [293,] 314 [(2006)] (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). To do so, the defendant must overcome a "strong presumption" that counsel exercised "reasonable professional" judgment and "sound trial strategy" in fulfilling his responsibilities. Ibid. (citation omitted). We recognize that "'[j]udicial scrutiny . . . must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

[State v. Loftin, 191 N.J. 172, 198 (2007).]

Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). The strong presumption that counsel exercised sound trial strategy is grounded on the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial. State v. Arthur, 184 N.J. 307, 319 (2005).

In addressing the issue of sound trial strategy, we note that defendant's testimony at trial was coherent, as was his statement to the court at sentencing. It may be that defense counsel had good reason to believe that a diminished-capacity defense was fruitless. However, on the record before us, we cannot determine whether trial counsel was ineffective in failing to mount this defense. Defendant may present his claim as an application for post-conviction relief, and, if appropriate, develop the record by including the testimony of defendant's trial attorney and possibly his examining psychologist. Any such application shall be heard expeditiously.

The only other issue raised on appeal is defendant's claim that the trial court erred in restricting the testimony of his sister, Latisha Pilgrim. After the State rested, defendant's counsel advised the court that "[t]he sister would testify that she received a phone call from the defendant on the day in question from the gas station and I would like to deal with it now if there's hearsay problems." The prosecutor objected that testimony respecting the conversation would be hearsay. The judge made the following ruling:

It seems to me that you have a right to put her on the stand to say she did receive a phone call whatever time she says, her phone number whatever it is and that she grew up with her brother for 20 years, she knew his voice and it was her brother talking to her at 7:00 in the morning.

Defense counsel then asked, "May I ask the witness what she said during that point?" The judge responded, "No, that's an out-of-court statement too." Defense counsel responded, "It is."

Where the trial judge fails to apply the proper test in analyzing the admissibility of proffered evidence, the scope of review is de novo. State v. Darby, 174 N.J. 509, 518 (2002). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Defense counsel conceded that the proffered testimony from the sister would "be offered for the truth" of the assertions. No specific proffer of the actual testimony was placed on the record.

We do not need to address the correctness of the ruling because we are required to disregard error in evidentiary and other rulings "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. An error in the exclusion of evidence in a criminal trial is not harmful where no fundamental right of the defendant has been impaired and the weight of the evidence against the defendant is great. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (noting that proof of defendant's guilt was overwhelming and that he made two confessions), certif. denied, 170 N.J. 209 (2001).

Here, defendant took the stand and testified that, after the victim had pumped the gasoline and defendant did not have enough money to pay for it, he called his sister so she could bring money down to the station. The sister had earlier corroborated that she did receive a phone call from her brother during the early morning of the robbery. We cannot find the exclusion of the specific words spoken, especially when they were not placed on the record, to be so harmful that any fundamental right of the defendant was impaired. Furthermore, the weight of the evidence against the defendant was great. He was positively identified by his fingerprints on the gas station telephone and by the victim, who testified at trial, and he gave an oral and a written statement after being advised of his constitutional rights.

Affirmed.

 

(continued)

(continued)

8

A-3343-05T3

November 21, 2007