STATE OF NEW JERSEY v. LIONELL G. MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5890-05T45890-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LIONELL G. MILLER,

Defendant-Appellant.

___________________________

 

Argued October 15, 2007 - Decided

Before Judges Weissbard and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, 95-01-0128-I.

Paul Casteleiro argued the cause for appellant.

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).

PER CURIAM

Defendant Lionell Miller appeals from the denial of his petition for post-conviction relief (PCR), R. 3:22-1 to -12, alleging ineffective assistance of counsel at his 1996 trial. We affirm.

I

A proper analysis of defendant's claim requires an extended statement of the facts upon which his convictions were predicated.

On October 29, 1994, sometime between the hours of 2:00 a.m. and 4:30 a.m., Jeffrey and Gregory Jackson were robbed on the corner of Ellison Street and Graham Avenue in Paterson. A yellowish four-door car pulled up to the corner and a man jumped out of the back seat, putting a shotgun to Jeffrey's neck. A second man came from the car wielding a handgun that he held to Gregory's side. Jeffrey described the man with the shotgun as dark skinned, with braided hair, wearing Army fatigues and a ski mask covering his face. The man with the handgun was light skinned, wearing dark clothes and a bandanna across his face. The man with the shotgun took a goose-down coat and approximately $300 from Jeffrey. After completing the robbery, the two men left in the same car.

Meanwhile, in a nearby part of town, Heriberto Huertas and Roberto Esquilin experienced car trouble, causing them to pull over on Park Avenue. As the two men waited, a beige Infinity driven by Enrique Garcia pulled behind Esquilin's car. Huertas and Esquilin proceeded to speak with Garcia and his passenger, Eduardo Valladares, the owner of the car and Huertas's friend. At that time, a black male "with dreadlocks," wearing a goose down coat, approached the group and asked if anyone had drugs. The group ignored the man and he walked away.

Approximately twenty minutes elapsed when another car containing four people pulled up. A man with dreadlocks, trying to pull a ski mask over his face, exited the rear passenger's side door and commanded the group to "put their hands up." Almost immediately, the man with dreadlocks fired his handgun. Huertas ran. When Huertas looked back he saw another man trailing him and Esquilin "falling to his face." A second man wearing a bandanna over his face exited the car from the passenger seat with a shotgun. Despite being shot in his left leg and right heel, Huertas continued to run as he heard the handgun and shotgun firing repeatedly. After the shooting subsided, Huertas returned to the scene to find Esquilin lying on the ground. Esquilin had been shot three times. A bullet entered his left leg, shotgun pellets entered his lower back and buttocks and another bullet entered his shoulder and struck his heart, proving to be fatal. According to Garcia, the man with the shotgun exited the Dodge from the backseat and the man with the handgun exited from the front passenger seat.

At the scene of the crime, police recovered .9mm casings and a magazine clip. Police found the assailants' beige Dodge abandoned at the Christopher Columbus Housing Project in Paterson. In the front passenger area of the Dodge police found three .9mm rounds.

The Dodge belonged to Louise Goss of Hillside, who lent the car to Yolanda Mikell, the aunt of co-defendant Lamont Towns. Mikell stated that on the night of the incident, she and Towns picked up defendant before stopping to talk to Jerry Clyburn. After Towns spoke with Clyburn, Towns told Mikell that she should take Clyburn's truck and they would take her car. Mikell agreed, and drove the truck to her sister's home. Mikell testified that Towns then drove the Dodge with Clyburn in the front and defendant in the back. Additionally, Mikell saw defendant with a .9mm handgun prior to the incident.

Jerry Clyburn testified that on the night of the incident he entered the Dodge and sat behind the driver, Towns, while defendant sat in the passenger seat. Clyburn maintained that they drove down Park Avenue to 19th Street and exchanged words with a group of males, at which point defendant started firing a handgun at the men. After the shooting, defendant and Towns got in the Dodge and, with Towns driving, pulled away. Clyburn testified that he remained in the Dodge during the shootings. He further testified that defendant wore a bandanna and had a short haircut, and that Towns wore a black goose-down coat.

Towns, called as a defense witness, admitted to wearing dreadlocks that night but asserted that he fired a handgun and Clyburn, not defendant, fired a shotgun. He claimed that Mikell was present and drove the Dodge after the shooting. Contrary to Mikell, Towns denied that Mikell took Clyburn's truck. Towns denied that defendant was present at the time of the shooting, claiming he had not seen defendant at all that day. Towns' trial testimony, however, differed from prior statements made at his own earlier, separate trial, where he said that he drove the group to the scene, where defendant fired the .9mm handgun and Clyburn fired the shotgun. At defendant's trial, Towns stated that he previously falsely implicated defendant because his mother told him that the police said they would let him go home if he implicated defendant.

Towns also testified that after the shootings Mikell drove the four of them to the apartment of Otis Clyburn, Jerry Clyburn's brother. There, the assailants hid the weapons that they used in the shooting. Towns claimed that Otis put the shotgun in the closet while Jerry Clyburn held on to the handgun. Jerry Clyburn testified that Towns and defendant let him out on Carroll Street before arriving at Otis's apartment. Otis testified that Towns and defendant, not Towns and Jerry Clyburn, came to his apartment. Otis further testified that while in his apartment, Towns asked defendant "why he shoot the guy?" On October 31, 1994, police searched Otis Clyburn's vehicle and found a handgun and shotgun matching the bullets and casings found at the crime scene.

Sabrina Simmons, who lived with Jerry Clyburn's other brother, Eugene Clyburn, testified that defendant confessed to her, and that Jerry was not responsible for the shootings.

Defendant denied spending time with Jerry and Otis Clyburn and denied that he had been to Otis's apartment. He also denied knowing Yolanda Mikell and testified that he had never been in her car. It was defendant's contention that on October 29, 1994, he arrived drunk at his home at approximately 2:30 a.m., became sick and went to bed. Defendant's family members corroborated his alibi.

On January 27, 1995, an indictment was filed against defendant, Lamont Towns and Jerry Clyburn, charging them with the following: purposeful or knowing murder of Roberto Esquilin, N.J.S.A. 2C:11-3a(1) and (2) (Count One); felony murder of Esquilin, N.J.S.A. 2C:11-3a(3) (Count Two); first-degree robbery of Esquilin, N.J.S.A. 2C:15-1(a)(1) and (2) (Count Three); second-degree unlawful possession of a weapon, a .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Esquilin, N.J.S.A. 2C:39-4a (Counts Four and Five, respectively); first-degree robbery of Jeffrey Jackson, N.J.S.A. 2C:15-1a(1) and (2) (Count Six); second-degree unlawful possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Jeffrey Jackson, 2C:39-4a (Counts Seven and Eight, respectively); first-degree robbery of Gregory Jackson, N.J.S.A. 2C:15-1a(1) and (2); second-degree possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Gregory Jackson, N.J.S.A. 2C:39-4 (Counts Ten and Eleven, respectively); second and third-degree aggravated assault of Heriberto Huertas, N.J.S.A. 2C:12-1b(1) and (2) (Counts Twelve and Thirteen, respectively); third-degree possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Huertas, N.J.S.A. 2C:39-4a (Counts Fourteen and Fifteen, respectively); possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Count Sixteen); possession of a firearm without a purchaser identification card, N.J.S.A. 2C:39-5c(1) (Count Seventeen); possession of a handgun with the serial number defaced, N.J.S.A. 2C:39-3d (Count Eighteen). In addition, Miller alone was charged with second-degree witness tampering, contrary to N.J.S.A. 2C:28-5a(2) (Count Nineteen).

Clyburn and Towns had separate trials. At his trial, Towns was found guilty of murder and other offenses. The State dismissed the charges against Jerry Clyburn and he testified on behalf of the State in defendant's trial. Defendant's jury trial began on September 11, 1996. On October 3, 1996, the jury returned a guilty verdict on the following charges: Count Two, causing the death of Roberto Esquilin during the commission of a robbery; Count Three, aggravated assault of Huertas; Count Four, possession of a shotgun with a purpose to use it unlawfully against Esquilin; Count Twelve, aggravated assault of Huertas; Count Fifteen, possession of a shotgun with a purpose to use it unlawfully against Huertas; and Count Seventeen, unlawful possession of a shotgun without a permit.

At sentencing on January 24, 2007, the court denied defendant's motion for a new trial, and sentenced defendant to a life term with thirty years of parole ineligibility on the felony murder charge. Additionally, he was sentenced to a concurrent ten year term with five years of ineligibility for aggravated assault (Count Twelve) and a concurrent five year term for possession of a shotgun without a firearms identification card (Count Seventeen). The court merged the remaining counts.

We affirmed defendant's conviction in an unpublished decision dated April 7, 1999. On July 6, 1999, the Supreme Court denied his petition for certification. State v. Miller, 161 N.J. 331 (1999). On June 25, 2001, the trial judge denied defendant's PCR petition. On February 20, 2003, we reversed and remanded, holding that defendant's PCR counsel was inadequate because "the attorney did not consult with defendant except immediately prior to the PCR hearing, did not investigate defendant's claims, and did not file an amended petition." On remand, we directed that the matter be heard by a different judge. On remand, defendant's new counsel filed an amended petition. After a hearing at which testimony was taken, the PCR judge rendered a lengthy oral ruling, followed by a written opinion, denying relief.

II

On this appeal, defendant presents two issues for our consideration:

POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND ORDER SHOULD ISSUE GRANTING HIS PETITION FOR POST CONVICTION RELIEF.

A. The Anonymous Calls Implicating the Defendant.

B. The Failure to Call Eyewitnesses Valladares and Vega.

C. The Cumulative Impact of Trial Counsel's Failure.

POINT II: AN ORDER SHOULD ISSUE REMANDING THE CASE FOR RECONSIDERATION OF THE ISSUE OF TRIAL COUNSEL'S FAILURE TO PRODUCE EDUARDO VALLADARES AND MIGUEL VEGA AS WITNESSES

III

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated the now well-known two-prong test for determining ineffective assistance of counsel. Under the first prong, defendant must "show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2054, 80 L. Ed. 2d at 693. Counsel's representation must meet an objective standard of reasonableness considering all the circumstances. Id. at 688, 104 S. Ct. 2064-65, 80 L. Ed. 2d 693-94. "Scrutiny of counsel's performance must be highly deferential" and should not be subjected to the "distorting effects of hindsight." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A court reviewing an ineffective assistance of counsel claim must consider the facts of the particular case and apply a "heavy measure of deference to counsel's judgments." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Under the second prong, defendant must demonstrate that "the deficient performance prejudiced the defendant." Ibid. Effectively, "counsel's errors [must be] so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Generally, prejudice is not presumed. Id. at 692-93, 104 S. Ct. at 2066-68, 80 L. Ed. 2d at 696-97. Stated differently, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In State v. Fritz, 105 N.J. 42 (1987), our Court adopted the Strickland test, which was summarized as follows: "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contribute to defendant's conviction, the constitutional right has been violated." Id. at 58. There is a strong presumption that counsel employed "reasonable professional judgment" and "sound trial strategy." State v. Loftin, 191 N.J. 172, 198 (2007) (citations omitted). Furthermore, the Court has noted that "[i]neffective-assistance-of-counsel claims are particularly suitable for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

IV

We consider defendant's issues in reverse order. Defendant argues that counsel should have called Eduardo Valladares and Miguel Vega as witnesses because their testimony would have contradicted Clyburn's testimony. Defendant claims that in their statements to the police both Valladares and Vega related that the man with the dreadlocks, subsequently identified as Towns, was armed with a handgun. Such testimony would have contradicted Clyburn's testimony as to the identity of the shooter. Defendant contends that the failure to call the witnesses was not mere trial strategy, but reflected inadequate preparation.

The State responds that counsel's failure to call the witnesses was a strategic decision and is entitled to deference. The State further claims that the witnesses' testimony could not exculpate defendant and, if anything, corroborated Clyburn's testimony. Neither witness could identify the second gunman; therefore, their testimony would not exculpate defendant. According to the State, even if an error occurred, correcting the error would not have resulted in a different outcome.

"Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). Defense counsel's decision as to which witnesses he or she will call is "an art," id. at 321 (citing Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697), and review of such a decision should be "highly deferential." Ibid. (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). However, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696.

In Arthur, supra, 184 N.J. at 321-22, the Court held that counsel's decision not to call a witness was proper after counsel interviewed the witness and determined his testimony might hurt the defendant. Conversely, in State v. Chew, 179 N.J. 186, 220 (2004), the Court held that counsel's failure to call an expert constituted ineffective assistance of counsel. In Chew, counsel became aware of certain facts and did not investigate whether the expert witness was also aware of the facts. Id. at 217. Counsel never discussed whether the new facts would have changed the expert's opinion. Id. at 218. Indeed, the new information would have changed the expert's opinion. Ibid. Thus, counsel failed to engage in an appropriate investigation. Ibid. Addressing the "prejudice" prong, the Court found that there was a reasonable probability that the expert's changed testimony would have substantially affected the jury's deliberations. Id. at 219-20. Thus, the Chew defendant satisfied both Strickland requirements and the case was remanded. Id. at 220.

Applying these standards to the present case leads to a conclusion that counsel's performance was sub-standard. First, there is no doubt that counsel was aware of these two witnesses, having received their statements in discovery. Second, the PCR judge found credible defendant's testimony that he told his trial counsel that "he wanted everybody at the scene to testify." Third, the testimony of Vega and Valladares, assuming they testified according to their statements, would in fact have tended to undermine Clyburn's testimony. Valladares stated, in part, as follows:

Me and my cousin Enrique are sitting in my car which is parked on Park Ave. facing Madison Ave. by E. 19th St. It is after 4:00 a.m. I saw a black guy with braids and he asked the crowd out on the block if anyone had any base. When he didn't get any he left and a short time later he returned. I saw him get out of the front passenger side of beige Dodge Aries and he said to the crowd "Run your Shit" which means give me your stuff. The crowd started to run and he started shooting. I heard two shots. I saw another black guy with a shotgun. I ducked down in the car and Enrigue drove off down Park Ave. (emphasis added).

He described the man with braids as wearing a "black goose down jacket black hood." He could not describe the other man. Subsequently, Valladares picked a photo from an array as being "the guy that came the first time to ask for drugs and then returned and had a handgun and was shooting."

Miguel Vega's statement was, in pertinent part, as follows:

Around 4:00 a.m. me and Carlos Reyes were sitting in his car parked on E. 19th St. near the corner. Then my friends Enrique Garcia and Eduardo Valladares pulled up in their car and I got in. We began talking and then Robert the person that got shot walked over to the car along with Brace who also got shot and we were talking. I am sitting in the car and we are parked on Park Ave., near E. 19th St. facing Madison Ave. Then a small beige Dodge Aries pulled up from E. 19th St. to the corner and a black male got out of the car, from the back and asked the people that were standing around if anyone had any crack. To me he didn't look like somebody that smokes crack. He got back into the car and drove off with the other two black guys in the car. About, 10 to 15 minutes later the same car pulls up with the same three guys in it. The same guy got out of the car and I saw him with a gun in his hand and another guy was getting out of the car. (emphasis added).

Vega was able to describe the one man as a "a black male, he had braids in his hair, mustache and was wearing three quarter length coat, black and green hooded sweatshirt, sweats green and rolled up to his knees."

Thus, the statements of both Valladares and Vega indicated that the man with the dreadlocks exited the car first and fired shots. Additionally, Valladares's statement indicated that the second man he saw carried a shotgun, implying that the man with dreadlocks carried the handgun.

This evidence directly contradicted Clyburn who said that defendant exited from the front seat of the car and fired the handgun that caused the fatal injury. Clyburn claimed that Towns was the driver and fired the shotgun. The Valladares version was consistent with the testimony of Garcia. However, it should be noted that Valladares's testimony was contrary to that of Towns, who claimed that Mikell was the driver. Vega also testified that three black males were in the Dodge. Thus, both witnesses excluded Mikell as the driver, thereby contradicting Towns.

The fourth factor concerns the efforts made to produce those witnesses at trial. As to Vega, the record reflects no effort to produce him. However, an effort was made to subpoena Valladares "some two weeks" before defendant's trial, as well as during the trial, but he could not be found. Counsel apparently sought to introduce Valladares's testimony through a police officer on the basis that he was "unavailable." The trial judge found that no showing of unavailability had been made, stating:

THE COURT: Yeah, but you haven't made any showing, [defense counsel]. You tell me they're unavailable. You've been looking for them for two weeks. This case has been pending for months and months. I don't know what efforts were made before then. I know there were people who were here in February, so, and that was sometime after the incident. They were available then.

[Defense counsel]: Judge - -

THE COURT: All I have is what you tell me.

[Defense counsel]: Judge, the only thing I'm suggesting to you that they were available on behalf of the State. They're not available on behalf of the defendant. That's a fact of life, an unfortunate fact of life and I think all of us who have been involved in the criminal justice system understand the reluctance of people to testify under any circumstances and there's a greater reluctance on behalf of people such as gather on a street corner at approximately 4:45 a.m. in the morning for no ostensible reason to testify, to come and testify on behalf of a defendant in this case.

And I represent to the Court that efforts have in fact been made, I mean, for Mr. Valladares especially and for Mr. Garcia especially.

THE COURT: All right. But you're just telling me things that really, [defense counsel], are just general statements. You haven't presented to me.

You want me to have a hearing and find out what you've done to locate Mr. Valladares or something, I'll hear you, but I just can't take, Judge, he's not available. I've got to know something more.

Counsel's investigator testified as follows:

Q. With respect to Eduardo Valladares, do you know his address?

A. 53 17th Avenue, Paterson, New Jersey.

Q. All right. Did you make efforts to contact him?

A. Yes, I did.

Q. When was that started?

THE COURT: I'm sorry. Just let me go back.

What was the address you have for him?

THE WITNESS: 53 17th Avenue, Paterson, New Jersey.

THE COURT: All right.

Yes. Go ahead, [defense counsel].

Q. Did you - - when did you make efforts to contact Mr. Valladares?

A. The last time I made efforts was today, approximately a half an hour before Enrique Garcia.

Q. All right. And before that?

A. The last two weeks I have tried a few times to go there.

Q. And what, if any, response did you receive?

A. No answer at the door.

[Defense counsel]: No further question, Judge.

THE COURT: Can I ask what hours do you go there?

THE WITNESS: I've been there a.m. in the morning around eight o'clock, in the early afternoon and approximately at 7:30 at night.

THE COURT: How many times have you been to seven - - 53 17th Avenue?

THE WITNESS: To 53 17th, I'd say at least five times.

THE COURT: In the last two weeks?

THE WITNESS: Yes.

THE COURT: Do you know if he lives there?

THE WITNESS: I do not know, no. That's the only address that I have the location for him.

THE COURT: Did you check with the post office whether he gets mail there?

THE WITNESS: That I did not do, sir.

THE COURT: All right. Do you have any questions, prosecutor?

[Prosecutor]: No, Judge - - oh, wait. I do have a question.

Was a subpoena mailed to either one of these individuals?

THE WITNESS: No. I tried to hand deliver it and I left one at the location of each one.

THE COURT: When did you do that?

THE WITNESS: Today I left one at both locations.

THE COURT: Have you done that before today?

THE WITNESS: Not leaving it there, no, but I have left my card there.

The judge then ruled that Valladares was not unavailable. For the purpose of making a record, however, the judge took testimony from the investigating police officer as to the descriptions provided by several witnesses at the scene. As to Valladares, he testified to the following description:

First suspect is a black male and suspect had long dreadlocks, a long black goose down jacket and a bandanna on his face.

The second - - he described the second suspect as a heavy-set black male with no hair.

The judge then, sua sponte, raised the possibility that Valladares's statement might be considered an excited utterance, N.J.R.E. 803(c)(2). After hearing extended argument and considering the applicable case law, the judge ruled that Valladares's statement could be admitted through Officer Huntington. As a result, defense counsel elicited the following testimony:

Q. I'm going to ask you, Officer, to refer to your notes and specifically to page 3 and this had to do with Eduardo Valladares, if you would look.

A. Correct.

Q. And he was at the hospital at the time?

A. Of?

Q. In other words, when you asked him some question, did you ask him questions at the hospital?

A. Yes.

Q. All right. And did he in fact tell you at that time a physical description of the people at the homicide? Just answer yes or no.

A. Possible suspects?

Q. Yes.

A. Yes.

Q. All right. And this was how long after you had gone to the scene?

A. Approximately forty-five minutes to an hour.

Q. All right. And what description did Mr. Valladares give to you as to suspect number one?

A. He gave me a description of a black male, had long dreadlock, long black goose down jacket on and a bandanna on his face.

Q. A bandanna on his face?

A. Yes.

Q. What description did Mr. Valladares give you as to suspect number two?

A. A heavy-set black male with no hair.

Valladares's statement to the officer, made at the hospital about forty-five minutes after the shooting, did not encompass his more complete description of the event contained in his statement given at police headquarters, quoted in full above. It should be noted that Valladares apparently testified at the earlier trial of co-defendant Towns, which took place about six months earlier, in February 1996. Not having been provided with a copy of that testimony, we are unable to determine if it tracked his statement. However, since the judge ruled that Valladares was not unavailable, N.J.R.E. 804(a), his earlier testimony could not be read to the jury at defendant's trial. N.J.R.E. 804(b)(1).

In dealing with this aspect of defendant's petition, the PCR judge, in his oral ruling of May 17, 2006, stated the following:

And according to [defendant] he may have made some other requests of [defense counsel], for example, he asked [defense counsel] to make sure every witness at the scene testified. For the most part I think [defense counsel] made the bulk of the decisions that went on throughout this matter. But [defendant] testified that he told [defense counsel] he wanted everybody at the scene to testify. And I don't doubt that that's true. The question, of course, becomes are they [defendant's] decision to make or are those decisions entrusted in trial counsel? And the other question that exists is would it have been wise to bring these people in? And that's, I guess, a question of your view point. One could argue that it would have been wise and one could, certainly, argue that it would have been very foolish to bring in these people. I'll explain it now, I might as well.

[Defendant's] position was that these people could determine, for example, who got out of what car at what time. What was done? There might have been some inconsistencies in their testimony. Certainly, one might assume that in the courtroom [defense counsel] could have said to the witness is that one of the guys, and pointed to [defendant], that you saw get out of the car? The answer probably would have been I can't say it was and I can't say it wasn't. I didn't get a chance with all the chaos and confusion to see the second shooter well enough to make an ID. It would have been neutralized in that sense. It would have been neutral testimony. I don't think it would have helped the defense. It could have hurt the defense in a sense that, and I'm only, just like a lot of what's been presented to me today has been done through the benefit of hindsight, looking at it in hindsight I could see a situation where [defense counsel] could have called these people that weren't called and deeply regretted having done so. Maybe they would have said I can't say it was him and I can't say it wasn't him. And, yes, I didn't say that the perpetrator who shot was tall. This was happening in seconds. Guns were being fired. I wasn't looking to see how tall he was. I wasn't looking to see his face. I was looking to run. I was operating on instinct. I was trying to survive. The risk the defense runs when you bring witnesses like that is in many respects they corroborated Mr. Clyburn, not on fine points, but on basic broad related points. They were corroborating a lot of the things that Mr. Clyburn says. But what do you do when you're a defense attorney and the victim or the friend of the victim who you bring in breaks down and cries in front of the jury. Yes, the jurors are repeatedly told you're not to decide this case based on sympathy or bias or emotions. But people are people. And I can tell you that if [defense counsel] brought these people in and they broke down and cried and did something to inflame the jury [defense counsel] and then, obviously, [defendant] might have been in a position where they would have wished that they never brought them in. We're not going to know because the case has been tried. But this is not an open and shut clear cut situation where it absolutely would have benefited the defendant to bring these witnesses in. It might have, or it might have been neutral. But it also certainly might have been very, very harmful to the defendant to bring these people in. Because as an attorney, as a trial attorney you know and we know everything that you do in the courtroom is a double edge sword. There's an upside potential, and there's a downside potential. And a good lawyer has to weigh not only the upside potential to everything he or she does in the courtroom, but also the downside. How can my adversary take this evidence that I'm presenting where I'm trying to get some upside and turn it on me and produce the down side? Again, it's all based on hindsight. But [defendant] is complaining and bringing as part of his post conviction relief application the fact that it was a mistake or against his wishes not to call these witnesses. I don't agree with that for the reasons I just said.

In his subsequently filed written decision, the judge noted:

Petitioner argues that his trial counsel should have called Miguel Vega and Eduardo Valladares as defense witnesses during trial. The Petitioner claims that their testimony would have assisted in his defense by showing that two eyewitnesses to the incident in question did not identify him as one of the perpetrators. Eduardo Valladares identified the co-defendant Towns as the main shooter at the scene of the homicide, and did not mention the Petitioner. Also, Miguel Vega did not mention or identify the Petitioner as one of the shooters. The two eyewitnesses were in the best possible location to identify both shooters, and could have added important information to the Petitioner's defense.

The State argues that trial defense counsel did try to subpoena Mr. Valladares, but could not find him. The statements of these witnesses would not exculpate the Petitioner. The witnesses' statements corroborate the testimony of Jerry Clyburn in many respects. Neither witness was able to identify the second gunman, because of the chaotic scene and rapid nature of the shooting.

This court, after reviewing the transcripts and arguments by both parties finds that the Petitioner has shown no evidence to support his claims. An attorney's decision as to trial strategy is entrusted [to] the sound discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.) certif. denied, 94 N.J. 531 (183). A court must give great deference to counsel's performance and must strongly presume that counsel's conduct constituted reasonable professional assistance. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). An appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. State v. Cusamano, 369 N.J. Super. 305, 310 (App. Div. 2004). Trial defense counsel's failure to call two witnesses could have been part of his trial strategy, and was not capable of prejudicing the Petitioner's opportunity to have a fair trial. These witnesses may have come into court and hurt the defendant's position, or they may have generated unnecessary emotional testimony.

We conclude, however, that the judge's reasoning was flawed in two respects. First, the issue was not whether Vega or Valladares could identify either of the men who exited the vehicle. Rather, the testimony that could have been provided by the witnesses related to: the description of the men, or at least one of them; which man got out of which seat in the car; and which man was holding which weapon. It was these details that contradicted Clyburn's version.

Second, we fail to discern any strategic reason why defense counsel did not call these witnesses. Unfortunately, defense counsel was deceased by the time of the PCR hearing and could not explain his decision. We do not subscribe to the PCR judge's suggestion, amounting to little more than speculation, that the witnesses would have been potentially harmful to the defense because of the emotional content of their testimony. There is no reason to believe that any emotion exhibited by the witnesses would have caused a jury to discount their version of the event provided to the police at the time.

Thus, we conclude that notwithstanding what otherwise appears to have been an aggressive defense, counsel could be deemed ineffective in failing to call Vega and Valladares. As a result, we address the second Strickland prong, the question of prejudice. Is there a reasonable probability that the testimony of the two non-produced witnesses would have produced a different outcome? We think not.

One or both of the witnesses would have supported a finding that defendant was not the man who exited the car with the handgun and fired the shot that killed Roberto Esquilin. Rather, defendant was the man with the shotgun. However, the jury did reach this very conclusion as reflected in its verdict that defendant possessed the shotgun, not the handgun, and was not guilty of murder but guilty of felony murder. This verdict indicated that the jury was not persuaded by Clyburn's testimony in critical respects. If defendant did participate in the attempted robbery, albeit with the shotgun not the handgun, he would still be guilty of felony murder.

The only way the testimony of the two witnesses could have led to a different outcome is if that testimony so contradicted the testimony of Clyburn and the other State's witnesses that the jury would entertain a reasonable doubt that defendant was a participant at all, i.e. that he was not present, as he testified. But we are unpersuaded that the Vega/Valladares testimony would have caused such a result. In one significant respect the absent testimony supported the State's case and contradicted the testimony of Towns. Since Towns' position was that he and Clyburn were the men with the guns who exited from the rear seat and front passenger seat, it was necessary for Towns to name a third person as the driver. According to Towns, that third person was Mikell. However, both Vega and Valladares said that three men were in the Dodge - no woman was mentioned. Thus, in that critical respect they undermined Towns' testimony and supported the State's theory. Of course, as we have already noted, Towns' testimony itself was solidly impeached by his prior statements.

Based on our analysis we conclude that it was not probable that the testimony of Vega and Valladares would have changed the outcome of this case. Thus, the second Strickland prong has not been established.

V

Defendant argues that counsel's references to anonymous calls implicating defendant prejudiced his case and was devastating to his defense. Defendant maintains that counsel brought the calls to the jury's attention without providing a theory explaining what the existence of the calls meant or proved. Not only did the calls fail to assist defendant, they in fact hurt defendant's case. Defendant asserts that the calls established: 1) that there were other witnesses that believed defendant to be guilty and may be afraid to come forward; 2) that defendant's alibi was false; and 3) that the State properly named defendant, rather than Jerry Clyburn, as one of the perpetrators.

During cross-examination of Detective Sergeant Alex Nieves, defense counsel attempted to elicit the contents of an anonymous phone call. The judge found that the contents of the phone call were hearsay and did not allow defense counsel to continue. Instead, outside the presence of the jury, the judge read the police report describing the phone call into the record. The phone call inculpated defendant. Defense counsel continued to ask whether the witness was aware of anonymous phone calls relating to defendant but did not expressly articulate a theory for using the phone calls.

Defense counsel raised the subject of anonymous phone calls with other witnesses as well. Furthermore, in his summation counsel stated the following:

I want to talk to you . . . about the Paterson Police Department. . . . I think that at some point I started to feel like a dentist pulling teeth . . . to get out the fact that anonymous telephone calls were made to the Paterson Police Department . . . at a point in time to implicate [defendant].

Did you hear any of the police over there volunteer that information? No. It's like pulling teeth.

Counsel did not connect this evidence to any theory in an attempt to exculpate defendant.

The State asserts that defense counsel's apparent strategy was to demonstrate that the police

had engaged in a slipshod investigation where it had acted merely after the receipt of anonymous telephone calls. That is, the truth of these statements was irrelevant to the defense strategy; it merely wanted to show that the police had relied on two unreliable sources, and as a result, arrested defendant for crimes he did not commit.

The State's argument may generally have some merit with respect to eliciting testimony at trial about the anonymous calls. That could have constituted a legitimate, if misguided, strategy. See State v. Bey, 161 N.J. 233, 251 (1999) ("Merely because a trial strategy fails does not mean that counsel was ineffective.") However, the quoted reasoning does not adequately address counsel's statement in summation that the anonymous calls did in fact "implicate Lionell Miller," a statement not supported by the record and clearly harmful.

Defendant analogizes his case to the facts of State v. Harrington, 310 N.J. Super. 272 (App. Div. 1998). In Harrington, the court held that counsel did not provide effective assistance by conceding in summation that his client participated in a robbery. Id. at 281. Counsel's concession was highly damaging and required a reversal of defendant's conviction. Id. at 281-84.

Unlike Harrington's counsel, defendant's counsel did not concede that defendant was involved in the criminal activity. Defendant's counsel did not inform the jury that "there was no reasonable doubt but that his client committed the . . . crime . . . ." Harrington, supra, 310 N.J. Super. at 284.

Nevertheless, while Harrington may not be applicable here, counsel's summation comment is hard to justify. As defendant argues, the statement could have conveyed to the jury that there were additional witnesses not called at trial, who implicated defendant in the crime. The PCR judge did not address this specific aspect of counsel's summation in his opinion. Nevertheless, we conclude that this error is not of such magnitude as to have led to a different outcome of the trial. Rather, the single remark, though unwarranted, lacks significance in light of the evidence produced by the State. Given everything the jury heard, we consider it highly unlikely that the jurors would have been affected by this comment. State v. Pillar, 359 N.J. Super. 249, 279-80 (App. Div. 2003).

 
Affirmed.

The testimony concerned whether the State had concealed from the defense that Jerry Clyburn testified pursuant to an agreement whereby the indictment against him would be dismissed in exchange for his testimony. That issue is not implicated in this appeal.

The record does not reflect the identity of the person whose photo Valladares selected. However, he did state that the man in the photo was "the guy that came the first time to ask for drugs and then returned and had a handgun and was shooting." Thus, it appears he was talking about Towns.

We note that even if we were to conclude otherwise, a remand would be necessary. As we have noted, defense counsel has died. Thus, there would be no reason to remand for the purpose of exploring his trial strategy, if any, on the witness non-production issue. However, on the present record we have no way of knowing whether Vega or Valladares were in fact available at or around the time of defendant's trial. We know Valladares was produced at Towns' trial some six months earlier. If Vega and Valladares were to be called as witnesses at defendant's trial they should have been subpoenaed a reasonable time before the trial. Theoretically, the two men could have been dead or out of the country. We do not know.

Thus, a remand would in any event, be necessary for a hearing at which the availability of the witnesses would be explored.

(continued)

(continued)

32

A-5890-05T4

December 28, 2007