STATE OF NEW JERSEY v. DAMIEN MITCHELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4832-05T44832-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMIEN MITCHELL,

Defendant-Appellant.

____________________________________

 

Submitted October 1, 2007 - Decided:

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-04-0851.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief; Lawrence J. Bullard, Legal Assistant, on the brief).

PER CURIAM

Defendant Damien Mitchell appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In 2001, defendant was convicted, following a jury trial, of: third degree possession of crack cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 1); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count 2); third degree possession of CDS on or within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (count 3); third degree distribution of CDS, N.J.S.A. 2C:35-5b(3) (count 4); and third degree distribution of CDS on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count 5). Defendant moved for a new trial. The judge denied the motion, merged the first four counts into count 5, and imposed a five-year term of imprisonment with a three-year parole disqualifier. We affirmed on direct appeal. State v. Mitchell, No. A-2029-01T4 (App. Div. June 16, 2003), certif. denied, 178 N.J. 34 (2003). The charges stem from a controlled sale by defendant to two undercover police officers on December 7, 1998. At trial, defendant presented an alibi defense to establish that defendant was at work that day until 4:30 p.m. and, therefore, he could not have participated in the alleged sale, which occurred at 4:30 p.m.

Defendant filed pro se a first PCR petition. Counsel was appointed to represent him. Designated PCR counsel filed a brief on defendant's behalf. After hearing oral argument, the same judge who presided at trial ruled that an evidentiary hearing was not necessary and denied the petition.

On appeal, defendant contends that he "should not be procedurally barred from raising these claims as a manifest injustice has been committed against him and he can only vindicate these claims through a post[-]conviction relief proceeding." We note that the judge did not deny the petition based on a procedural bar. Therefore, we will address the merits of his claims.

Defendant also contends:

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT.

A. Defendant Was Denied Effective Assistance of Counsel When His Trial Counsel Failed to Subpoena The Defendant's Supervisor As A Witness To Testify On The Time Card Issue.

B. Defendant Was Denied Effective Assistance Of Counsel When His Trial Counsel Did Not Advise The Defendant On Matters Paramount To A Successful Defense.

C. Trial Counsel Was Ineffective By Not Highlighting The Inconsistencies In The Testimony Of The Police Officers.

D. Defendant Was Denied Effective Assistance Of Counsel When His Trial Counsel Did Not Adequately Investigate Matters Central To The Defense Or Follow Up On Tactics She Set In Motion.

It is well-settled that in order to demonstrate remediable ineffectiveness, a defendant must meet a two-prong test. First, defendant must show that counsel's performance was substandard. Second, defendant must show that the defective performance complained of was prejudicial to his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984).

Therefore, 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. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Deficient performance is a failure to exercise the skill and diligence of a reasonably competent attorney under similar circumstances. Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Counsel's conduct must be viewed, without hindsight, from the perspective at the time of trial. Id. at 687-89, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694. Representation is constitutionally deficient only when it falls "outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Prejudice is shown by proof creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Judicial scrutiny of counsel's performance must be highly deferential. 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. The New Jersey Supreme Court has adopted the Strickland standard in evaluating ineffective assistance of counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

It is against that standard that we review defendant's claims. Defendant argued that trial counsel was ineffective by failing to call defendant's supervisor, Kenny Lappy, as a witness for the purpose of proving that defendant was at work at the time the crime was committed. The issue was one of major significance at the trial. As we said in our opinion on direct appeal:

Kenneth Reeves, defendant's co-worker at Freehold Cartage, testified that defendant usually took the bus home, unless he was working late in which case Reeves would drive him home. Sandra Shea, who was payroll coordinator at Freehold Cartage, testified that defendant's time sheet indicated that he worked from 6:00 a.m. to 3:00 p.m. on December 7, 1998. However, on cross-examination, Shea further testified at some time thereafter that she honored a request to mail a copy of defendant's time sheet for December 7th to the 28th, 1998, to defendant's address on file. On April 19, 2000, an amended time sheet was returned which indicated that defendant worked from 6:00 a.m. to 4:30 p.m. on December 7, 1998.

Shea testified that the timesheet returned by defendant differed from the original one kept on file with the payroll office. Thus, Shea's cross-examination testimony did not buttress, but impeached the alibi defense.

Defendant did not produce any support for his PCR claim of ineffective assistance. The judge gave defendant time to secure an affidavit from Lappy. Defendant failed to provide such affidavit. The judge took this as an indication that Lappy's testimony would have been unfavorable to defendant and found that defendant suffered no prejudice by his counsel's failure to call him.

We agree with the judge. Moreover, when arguing that counsel failed to conduct a pre-trial investigation or interview witnesses, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, when a defendant alleges that his or her attorney inadequately investigated the case, 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." Ibid. 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 failing to present a witness).

Here, defendant has failed to support his allegations with competent proof.

Defendant contends that trial counsel did not render effective assistance by: (1) not informing defendant that the State planned to introduce a prior photographic identification by Detective Ahart; (2) not informing defendant of his trial date within a reasonable time; and (3) not presenting an adequate cross-examination of the detectives called by the State. We are not persuaded.

First, we note that at trial, Detective Ahart identified defendant as the person she bought drugs from on December 7, 1998. She stated that when the transaction occurred, she was no more than three feet away from defendant and she never lost sight of defendant during their encounter. Her focus was solely on defendant during the approximately ten minutes of their encounter.

Detective Ahart also testified that at the time of the exchange, she did not know defendant's name, but defendant referred to himself as "Nut-nut." Three weeks after the sale, Ahart selected defendant's photograph from a four-photograph array as "Nut-nut," the person from whom she bought cocaine on December 7, 1998. Ahart testified that she was "100% positive" of this identification.

Defense counsel thoroughly questioned Ahart, as well as Detective Coyle, who conducted the photographic identification procedure on this issue on identification. Defense counsel pointed out inconsistencies in Ahart's and Coyle's police reports to the jury during summation, arguing such inconsistencies impeached the credibility of these State's witnesses.

Defendant also argues that trial counsel failed to investigate possible additional discovery, specifically, a bus schedule that would have proven defendant could not have been at the scene of the crime on December 7, 1998. The trial record shows that defense counsel called Sandra Wilson as a defense witness. Wilson testified that she lived with defendant for the past ten years as his girlfriend. Wilson answered questions regarding defendant's wardrobe and his taking the bus to and from work each day. In her summation, defense counsel forcefully argued the alibi defense, explaining details regarding how the defendant habitually took the bus to and from work and how it would have "not [been] physically possible" for defendant to have been at the crime scene at 4:30 p.m. to sell Ahart cocaine.

We note, as did the PCR judge, that defendant did not produce the bus schedule at the PCR hearing. Therefore, the schedule's support of the alibi defense is purely speculative. The judge found that the schedule would not have made any difference to the outcome of the case because the issue at trial was not whether defendant went to the crime scene by bus, but whether he was there at the time the drugs were sold.

Accordingly, our review of the PCR record persuades us that it does not support the ineffective assistance claim. We are also convinced that an evidentiary hearing on the petition was unnecessary.

Affirmed.

(continued)

(continued)

9

A-4832-05T4

November 23, 2007