STATE OF NEW JERSEY v. PAUL MACKEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4614-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL MACKEY,

Defendant-Appellant.

_________________________________________________

 

Submitted March 13, 2007 - Decided June 27, 2007

Before Judges Payne, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

94-01-0472.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard W. Berg,

Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Paul Mackey, appeals from the denial by Judge Roma, following remand and reassignment to a different judge, of his petition for post-conviction relief (PCR) from convictions of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2) and felony murder, N.J.S.A. 2C:11-3(c)(3).

On appeal defendant raises the following arguments through counsel:

POINT I

THE PCR COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR DISCOVERY OF THE FINGERPRINT EVIDENCE NECESSARY FOR APPELLANT TO DEMONSTRATE INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. I, 10.

POINT II

COUNSEL'S INCOMPETENCE, INCLUDING FAILURE TO ENGAGE A FINGERPRINT EXPERT, DENIED APPELLANT THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT III

FAILURE TO EXPLORE WITH DEFENDANT HIS OPTION WHETHER OR NOT TO TESTIFY ON HIS OWN BEHALF PRIOR TO THE CONCLUSION OF THE STATE'S CASE CONSTITUTED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT IV

TRIAL COUNSEL'S SUMMATION ARGUMENT ADMITTING DEFENDANT'S GUILT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. APPELLATE COUNSEL WAS ALSO INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.

POINT V

THE PROSECUTOR'S MISCONDUCT BEFORE THE GRAND JURY REQUIRED DISMISSAL OF THE INDICTMENT. FAILURE OF TRIAL AND APPELLATE COUNSEL TO RAISE THIS ISSUE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT VI

THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT OF MURDER AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. THE CONVICTIONS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AND MUST BE REVERSED.

POINT VII

THE FAILURE OF TRIAL, APPELLATE AND PCR COUNSEL TO OBJECT TO THE OMISSION OF APPROPRIATE JURY INSTRUCTIONS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT VIII

ADMISSION OF APPELLANT'S STATEMENT TO JOHN LACO VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 5th, 6th AND 14th AMENDMENTS OF THE UNITED STATES CONSTITUTION, N.J. CONST., ART 1, 1, 7 AND 10, AND THE COMMON LAW AND STATE STATUTES ON THE PRIVILEGE AGAINST SELF-INCRIMINATION. THE FAILURE TO OBJECT OR PRESENT ISSUES CONSTITUTED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

POINT IX

ADMISSION OF APPELLANT'S MUG SHOT BEFORE THE GRAND JURY AND AT TRIAL INFRINGED APPELLANT'S CONSTITUTIONAL RIGHTS IN VIOLATION OF THE 5th AND 14th AMENDMENTS OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. 1, 1.

Defendant has raised the following additional arguments in a pro se brief, which we reproduce as presented:

Legal Point (1)

Appellant-Petitioner argues that his Attorney has committed Ineffective assistance of Counsel by failing to file motion to the Court to compel the Government Attorney to disclose document request for "the examination of all evidence that was seized or discovered and submitted as evidence" including all latent fingerprints lifted from the crime scene and which State or federal Investigation an forensic, Unit and Criminal Investigators that Submitted the Evidence to the Prosecutor's Office as a chain of Process constituted a violation of his state and federal constitutional right to Adequate representation by competent counsel Due to his counsel unprofessional errors contributed to his conviction warrants reversal.

Legal Argument (2)

Petitioner-Appellant contends that his attorneys from trial Appellate Court Provided Ineffective Assistance of counsel in not filing an order with the Court to compel the Bergen County Prosecutor office to disclose Document of Examination of the "Evidence that was prepared by the Federal Bureau Investigation, and the Bergen County Prosecutor office or Sheriff Crime scene search team as a chain of process of evidence being submitted to the Case failure of the prosecutor to learn or investigate such report" or the whereabouts of this report constitute Brady violation, Suppression Favorable evidence to the Accused, an Material to Petitioner defense to His charges warrant Direct reversal Denial of Due Process.

We affirm on the basis of the opinion of Judge Roma, adding only the following background and comments.

I.

The record discloses that, in 1980, Carl Ferrini was shot in the back during a robbery of his music store. Although the perpetrator had been observed by two adjacent store owners and a student of Ferrini's, none could provide more than a general description of him, and none was able to identify him from photographs or, subsequently, at trial. Fingerprints, left on glass on and around the cash register, were photographed and analyzed, but at the time, failed to provide a basis for the identification of the culprit. At some point, the glass fragments bearing the fingerprints were lost; however, the photographs were preserved.

Defendant was not apprehended until July 7, 1993, after the fingerprints found at the scene were identified as his through the use of a computerized method of fingerprint identification known as AFIS (Automated Fingerprint Identification System). Defendant was indicted in 1994 and was tried, but the jury was unable to reach a verdict, and a mistrial was ordered. Upon retrial in September 1995, defendant was convicted of murder and felony murder on the basis of the fingerprint evidence and the testimony of John Laco, a cellmate to whom defendant had made incriminating statements. A new trial motion was denied, and defendant was sentenced to thirty years in prison with a fifteen-year parole disqualifier.

On appeal, we affirmed defendant's conviction, but remanded the matter for resentencing. State v. Mackey, Docket No. A-2959-95T4 (App. Div. December 21, 1998). On February 19, 1999, the same sentence was imposed upon remand. A petition for certification was denied by the Supreme Court. State v. Mackey, 160 N.J. 89 (1999). Thereafter, we denied, on appeal, defendant's claim that his sentence, following remand, was excessive. State v. Mackey, No. A-4855-98T4 (App. Div. October 12, 1999). A further petition for certification was denied by the Supreme Court. State v. Mackey, 163 N.J. 80 (2000).

A pro se PCR petition was filed by defendant on June 15, 1999, and his supporting brief was filed shortly thereafter. Counsel was assigned to represent him and, on September 25, 2000, counsel filed a further brief on defendant's behalf. Because, during the course of oral argument on defendant's PCR petition, counsel denigrated one of defendant's pro se arguments and appeared to have abandoned the remainder without presenting evidence that defendant had waived them, we found counsel had violated the duties of representation set forth in State v. Rue, 175 N.J. 1, 18-19 (2002). Accordingly, we reversed the motion judge's decision to deny post-conviction relief and remanded the matter for reassignment of counsel and full consideration of defendant's PCR petition by a different judge.

Upon remand and after new counsel had been assigned to defendant, a request by defendant for discovery and defendant's PCR petition were considered by Judge Roma, who denied the relief that defendant sought, without an evidentiary hearing, in a written opinion dated November 5, 2004. On appeal, defendant raises before us the issues presented to Judge Roma. We add only the following to Judge Roma's comprehensive analysis.

In his PCR petition, defendant claimed ineffective assistance of the various attorneys who had represented him at trial, on appeal, and at the first PCR hearing. Ineffectiveness is judged by the familiar two-prong standard established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2042, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), which requires evidence that counsel's performance was so deficient as not to constitute the representation guaranteed under the Sixth Amendment, and that, but for counsel's ineffectiveness, the result of the trial would have been different.

Among his arguments, defendant claims ineffectiveness of trial counsel as the result of a closing argument in which he stated: "[a]nd I ask you to acquit [defendant], not because he's innocent, but because they haven't met their burden. They haven't even come close to meeting their burden required in a criminal case, which is, beyond a reasonable doubt." (Emphasis added.) Defendant also claims ineffectiveness of appellate counsel, who failed to raise the issue of trial counsel's ineffectiveness in this regard on direct appeal, despite the fact that record evidence allegedly proved the point, thereby permitting the State to invoke R. 3:22-4, barring consideration of grounds for relief not raised in prior proceedings, in response to defendant's PCR petition.

Addressing the merits of the argument, after reviewing defense counsel's summation in its entirety, we do not find the ineffectiveness that defendant claims, but merely an infelicitous statement of no particular consequence to the trial's outcome. Viewed in its entirety, counsel's summation more than adequately conveyed the argument that defendant was an innocent man who had been in Virginia with his family at the time of the crime, and that he had been unfairly charged with that crime on the basis of an incompetent police investigation that involved fingerprints on glass shards that had been lost by the State and which could have been placed at the scene at another time. Counsel further buttressed his argument that the State had failed to meet its burden of proof by noting the lack of physical evidence connecting defendant with the crime, by stressing the criminal background of Laco, and by highlighting the inherent incredibility of testimony by Laco that, counsel argued, had been given solely in order to obtain favorable treatment by law enforcement officials. Given counsel's emphasis upon defendant's innocence as the primary theme of a lengthy closing argument, we cannot conclude that one slip of the tongue either rendered counsel's performance deficient or that it affected the jury's verdict.

We likewise find no ground for relief to have arisen as the result of the failure by trial counsel to request a charge pursuant to State v. Hampton, 61 N.J. 250 (1972) and State v. Kociolek, 23 N.J. 400 (1957), or as the result of the failure by appellate or other counsel to have raised that issue on appeal. In Kociolek, the Supreme Court held that a criminal defendant is entitled to an instruction that jurors "receive, weigh and consider . . . with caution" testimony concerning out-of-court incriminating statements made by a defendant. Id. at 421; see also State v. Harris, 156 N.J. 122, 182 (1998). The need for the instruction is derived from a "generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer," that renders such evidence potentially untrustworthy. Kociolek, supra, 23 N.J. at 421.

A Kociolek charge is required when testimony of oral inculpatory statements made by a defendant is admitted, even if the charge has not been requested. However, the failure to give a Kociolek charge is not per se error. State v. Jordan, 147 N.J. 409, 425-26, 428 (1997); Harris, supra, 156 N.J. at 183. When such a charge has not been sought by the defendant, reversal is required "only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" Jordan, supra, 147 N.J. at 425, 428 (quoting R. 2:10-2). Further, if the statement being offered is "clear and unequivocal," there is no error in failing to give a Kociolek charge, State v. Baldwin, 296 N.J. Super. 391, 401 (App. Div.), certif. denied, 149 N.J. 143 (1997), because "[t]he meaning of such statements does not turn on any nuances of language, and the circumstances under which the statements are made do not present any 'risk of inaccuracy.'" Ibid. (quoting Kociolek, supra, 23 N.J. at 421).

Because "[t]he principal value of the Kociolek charge is to cast a skeptical eye on the sources of inculpatory statements attributed to a defendant," Harris, supra, 156 N.J. at 183, jury instructions, taken as a whole, can compensate for the lack of the charge, particularly when there is other substantial evidence, as here, of defendant's guilt. State v. Candelaria, 311 N.J. Super. 437, 449-50 (App. Div.), certif. denied, 155 N.J. 587 (1998); State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). As long as the issue of the reliability of the defendant's incriminating statement has been adequately placed before the jury, no plain error can be demonstrated. State v. Feaster, 156 N.J. 1, 73 (1998), cert. denied, sub nom. Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In Hampton, supra, 61 N.J. at 272, the Court held that if a court determines that an inculpatory statement made by a defendant is admissible,

the jury shall be instructed that they should decide whether in view of all the circumstances the defendant's confession is true. If they find it is not true, then they must treat it as inadmissible and disregard it for purposes of discharging their function as fact-finders on the ultimate issue of guilt or innocence.

See also N.J.R.E. 104(c). As with the Kociolek charge, the failure to give a Hampton charge without request constitutes reversible error only when the omission is clearly capable of producing an unjust result. Harris, supra, 156 N.J. at 182-83; Jordan, supra, 147 N.J. at 425-26.

Our review of the trial court's instruction to the jury in the present matter satisfies us that no reversible error occurred as the result of the failure to request or provide a Hampton/Kociolek charge. The court instructed the jurors that they must determine the credibility of the witnesses, thereafter listed the witnesses, including Laco, and reiterated that the jurors were "the sole judges of the credibility of the witnesses, and the weight their testimony deserves." The court further explained that even though a witness takes an oath before testifying, the jury should consider the "manner in which the witness has testified, the character of the testimony of the witness, or the existence of contradictory evidence [that] may indicate to [the jury] that the witness did not" tell the truth. Thus, the jury was instructed that it

should carefully examine the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate the witness is worthy of belief. You should consider each witness's intelligence, motive, state of mind and demeanor while on the witness stand. Consider also each relation that each witness may bear to either side of the case; the manner in which each witness may be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence.

Additionally, the court provided a "false in one, false in all" charge, discussed how the jury should weigh discrepancies in the evidence, and instructed: "if there is evidence bearing upon the guilt or innocence of the accused, which is reasonably susceptible of two constructions, one of guilt and one of innocence, the latter should be adopted." The testimony of Laco was directly addressed in an instruction that evidence of his past convictions and pending charges could be used only to impeach his credibility.

We regard the effect of the thorough instructions given by the trial court concerning witness testimony, the strong attack mounted by defense counsel on Laco's credibility in his summation, and the existence of evidence other than Laco's testimony that strongly linked defendant to the crime, consisting of the latent fingerprints and descriptions of eye witnesses of a person who was similar in appearance to defendant, to have precluded reversible error occurring as the result of the absence of a Hampton/Kociolek charge. Accordingly, we find no grounds to exist for a claim that counsel was ineffective. The failure to raise an unsuccessful issue cannot render counsel's representation deficient. State v. Worlock, 117 N.J. 596, 625 (1990).

We determine that the remaining issues raised by defendant have either been adequately addressed in prior opinions rendered in connection with this matter or lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-4614-04T4

June 27, 2007