STATE OF NEW JERSEY v. RICHARD BAILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6203-05T46203-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD BAILEY,

Defendant-Appellant.

______________________________________

 

Submitted January 28, 2008 - Decided:

Before Judges A. A. Rodr guez and Kestin.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-08-1175.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Richard Bailey appeals from the denial, without an evidentiary hearing, of his first petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.

Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1. Defendant moved unsuccessfully for a new trial. The trial judge sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a and imposed a thirty-year term with a ten-year parole disqualifier and payment of $1,400 in restitution. We affirmed the conviction, but vacated and remanded for re-sentencing. State v. Bailey, A-5116-00T4 (App. Div. Nov. 21, 2002), certif. denied, 176 N.J. 279 (2003). Upon remand, a different judge imposed an extended term of thirty years with a ten-year period of parole ineligibility. We affirmed. State v. Bailey A-6385-02T4 (App. Div. Mar. 31, 2004), certif. denied, 180 N.J. 458 (2004).

The State's proofs can be summarized as follows. On June 16, 1998, at approximately 4:00 p.m., a grocery store in New Brunswick was robbed. One of the two employees on duty at the time had been distracted by pursuing a shoplifter who fled the store. Defendant's friend, Maria Riley, then entered the store and ordered some cold cuts. When the second employee, Emiliano Rodriguez, began filling the order, two men wearing ski masks entered the store. One of them, whom Rodriguez recognized as a previous store patron, pointed a gun at Rodriguez and threatened to kill him if he moved. The other man went behind the counter and took approximately $1,200 from the register. The two men and Riley then fled the scene together.

The owner of the store testified that "one of [his] customers brought [him] a picture of [defendant] and told [him] his name." The customer was Bernard Williams, who testified at the hearing on a motion for a new trial. He had called New Brunswick Detective Sam Hillyer and gave him the photograph. Hillyer showed Rodriguez the photograph and he recognized defendant.

At trial, Rodriguez testified and identified defendant as the former patron who had pointed a gun at him. Hillyer also testified, referring to defendant by his street name, "Mookie." He also testified that a confidential informant identified defendant as one of the robbers.

Defendant did not testify, but presented the testimony of three witnesses. Riley testified that she was at the store at the time of the robbery by two armed, masked men, whom she did not know. Defendant, her friend, came in shortly after she did. They were talking casually when the robbery occurred. During the testimony, Riley told the jury that defendant was on parole for a different crime at the time of the robbery and that defendant was in custody at the time of trial.

Arthur Lee Satterwhite testified that he was about to walk into the grocery store when defendant met him at the door and said "I don't think that you want to go in there, Pop." He had no further knowledge of the incident.

Juan Tenreiro, an investigator for defense counsel's firm, testified that he interviewed Rodriguez, who described the man who pointed the gun at him. Rodriguez could not describe the second suspect to Tenreiro. According to Tenreiro, Rodriguez said defendant had "come into the store several times" in the past.

Defendant filed pro se a first PCR petition, alleging ineffective assistance of trial counsel for "failure to present and pursue expert witnesses in relation to identification, as related to transference and gun-focus." Specifically, defendant alleged that trial counsel had failed to call Arnie Glover, his parole officer, as a defense witness. He alleged that Glover had questioned a person working at the grocery store and showed that person defendant's photograph. The person did not identify the person depicted in the photograph as the robber.

Designated counsel submitted a brief incorporating defendant's arguments. The PCR judge denied the petition and found that an evidentiary hearing was not warranted.

On appeal, defendant contends:

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL KEY DEFENSE WITNESSES.

B. TRIAL COUNSEL FAILED TO CONSULT AND RETAIN AN APPROPRIATE EXPERT.

C. TRIAL COUNSEL FAILED TO OBJECT TO TESTIMONY CONCERNING DEFENDANT'S STREET NAME.

D. TRIAL COUNSEL FAILED TO FILE A CRUCIAL MOTION.

E. TRIAL COUNSEL FAILED TO CROSS-EXAMINE DETECTIVE HILLYER IN AN EFFECTIVE MANNER.

F. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S BADGERING OF DEFENSE WITNESSES ON CROSS-EXAMINATION.

G. TRIAL COUNSEL FAILED TO PROPERLY PREPARE DEFENSE WITNESSES AND FAILED TO REQUEST AN INSTRUCTION THAT JURORS DISREGARD CERTAIN PREJUDICIAL COMMENTS MADE BY WITNESS MARIA RILEY.

H. TRIAL COUNSEL FAILED TO MENTION AT ANY POINT DURING THE TRIAL THAT NO WEAPON WAS RECOVERED.

I. TRIAL COUNSEL FAILED TO REQUEST LESSER INCLUDED OFFENSES IN THE CHARGE AND ON THE VERDICT SHEET.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

Defendant filed, pro se, a supplemental brief, contending:

THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE ON DIRECT APPEAL BECAUSE HIS ATTORNEY HAD FAILED TO RAISE ARGUMENTS THAT THE FACTS AT TRIAL CONVEYED AN IMPRESSION TO THE JURY THAT IT WAS MORE THAN ONE PERSON WHO HAD PARTICIPATED IN THE ARMED ROBBERY, THEREFORE DEFENDANT'S STORY REGARDING HIS NON-COMPLICITY IN THE CRIME REQUIRED THE JUDGE TO APPLY CORRECT LEGAL PRINCIPLES TO ASSESS HIS VERSION BY ALLOWING JURORS TO CONSIDER WHETHER SOMEONE ELSE HAD COMMITTED THE OFFENSE.

B. THE DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BECAUSE OF HER MISUNDERSTANDING OF THE LAW ON THE "OPENING THE DOOR DOCTRINE," THEREBY GENERATING AN IMPROPER USE OF PREJUDICIAL TESTIMONY THAT WAS UTTERED FROM MS. RILEY REGARDING DEFENDANT'S IMPRISONED STATUS SINCE THE JURY WAS EXPOSED TO THE COMMENTS.

It is well settled that in order to demonstrate remediable ineffectiveness, a defendant must meet a two-prong test. Defendant must show first that counsel's performance was substandard, and second that the defective performance complained of was prejudicial to his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). 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. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[S]trategic 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 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 trial counsel 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 failure to present a witness).

It is also well settled that when issues of defective performance of trial counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal, but rather a petition for post-conviction relief attended by a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992).

Our review of this record persuades us that there was a prima facie showing that triggered the need for an evidentiary hearing with respect to some of defendant's claims of ineffective assistance, specifically counsel's failure to: (1) call Glover as a witness at trial; (2) explore and, if appropriate, retain an identification expert; and (3) move for disclosure of the confidential informant mentioned by Hillyer. Each contention involved factual issues, outside the record, that warranted further development.

We conclude that the remaining allegations of ineffective assistance were properly rejected by the PCR judge, based on the trial record. The judge correctly found in the latter respect, that trial counsel's performance did not fall below the Strickland/Fritz standard.

Defendant also contends:

THE IMPOSITION OF THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

In his supplemental pro se brief, defendant contends:

THE SENTENCE IS ILLEGAL

[SIC] A. THE DEFENDANT ALLEGED DISCIPLINARY PROBLEMS DURING HIS INCARCERATED PERIOD PRIOR TO RESENTENCING HEARING DOES NOT CONSTITUTE ACCEPTABLE AGGRAVATING FACTORS TO ELEVATE SENTENCE BEYOND REGULAR STATUTORY MAXIMUM FOR ARMED ROBBERY BECAUSE THERE WAS NO PROOF IN THE RECORD TO SUPPORT A CRIMINAL CONVICTION UNDER THE LAW. THEREFORE, HIS SIXTH AMENDMENT JURY TRIAL RIGHTS AS ARTICULATED IN BLAKELY WAS VIOLATED WITH RESPECT TO THE UNITED STATES AND NEW JERSEY CONSTITUTION.

B. BECAUSE THE RESENTENCING COURT MADE CLEAR THAT IT WOULD CONSIDER REDUCING THE DEFENDANT'S 30-YEAR SENTENCE UNDER THE EXTENDED TERM ABSENT A THREAT INFRACTION WHILE INCARCERATED AND THE STATE NEVER OBJECT TO THE COMMENT NOR WERE THERE ANY RECORD TO SHOW SUCH A CIVIL ADJUDICATION EXISTED, THIS COURT SHOULD REMAND THE MATTER TO ENCOURAGE THE LOWER COURT TO HONOR ITS PROMISE.

C. THE SENTENCING COURT ABUSED ITS DISCRETION TO IMPOSE THE EXTENDED TERM WHEN THE JUDGE ADDED THE "REMOVAL OF A PAROLE BRACELET" AND A "CIVIL INSTITUTIONAL ADJUDICATION INFRACTION" AS REASONS FOR APPLYING THE DEFENDANT'S SENTENCE THEREFORE IT SHOULD BE VACATED.

We reject the arguments that the imposition of an extended term was illegal. Defendant argues that his extended term was imposed illegally in violation of the holding in State v. Pierce, 188 N.J. 155 (2006). This argument cannot be raised by defendant on PCR. In State v. Natale, 184 N.J. 458, 494 (2005), the Supreme Court limited retroactivity of its holding to "defendants with cases on direct appeal as of the date of [the Natale] decision and to those defendants who raised Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)] claims at trial or on direct appeal[.]" Defendant's sentence on remand was affirmed by us in March 2004. On June 29, 2004, the Supreme Court denied certification. Bailey, supra, 180 N.J. at 458. Therefore, his appeal was not pending when either Natale or Pierce was decided.

Lastly defendant contends in his supplemental brief:

[SIC] THE GENERIC CAUTIONARY INSTRUCTION THAT SUPPOSE TO GUARD AGAINST PREJUDICE THAT WAS GIVEN TO THE JURY BY THE JUDGE AS IT RELATES TO THE STATE DELIBERATELY ELICITED HIGHLY PREJUDICIAL TESTIMONY FROM MS. RILEY IS NOT AMENABLE TO HARMLESS ERROR, BECAUSE JURORS WERE IMPROPERLY EXPOSED TO DEFENDANT'S IN-CUSTODY STATUS, THUS, HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION WAS VIOLATED.

This contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, it is procedurally barred because it was not raised on direct appeal. R. 3:22-4.

In summary, we affirm the denial of the PCR petition in all respects, except for the claims of ineffective assistance by trial counsel for failure to: (1) call Glover as a witness at trial; (2) explore and, if appropriate, retain an identification expert; and (3) move for disclosure of the confidential informant mentioned by Hillyer. We express no opinion on the merits to these contentions, but only that they present sufficient basis to warrant an evidentiary hearing.

Reversed and remanded for an evidentiary hearing.

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A-6203-05T4

July 16, 2008

July 16, 2008