STATE OF NEW JERSEY v. LEOPAUL MERONVILLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1728-07T41728-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEOPAUL MERONVILLE,

Defendant-Appellant.

__________________________________________

 

Submitted September 21, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-0993.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Leopaul Meronville appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

In 2002, following a jury trial, defendant was convicted of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first degree robbery, N.J.S.A. 2C:15-1; first degree murder, N.J.S.A. 2C:11-3a(1)(2); first degree felony murder, N.J.S.A. 2C:11-3a(3); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Judge Joseph V. Isabella, denied defendant's motion for a new trial, appropriately merged of offenses, and imposed concurrent terms aggregating thirty years with a NERA parole disqualifier. We affirmed on direct appeal. No. A-4092-02T4 (App. Div. Oct. 20, 2004), certif. denied, 182 N.J. 430 (2005).

The proofs are fully set forth in our opinion on direct appeal. Briefly, on September 29, 2000, around closing time, two men committed a robbery at gunpoint at a bar in Newark. Defendant was one of the men. The two gunmen entered the club. One man possessed a shotgun and remained near the entrance. The second man showed a silver handgun.

Newark Police Officer John Jewell noticed a double-parked vehicle with the engine running while he was on his way to meet friends shortly after his shift had ended. He pulled over to ask the vehicle to move, when he came upon panicked patrons and subsequently encountered the gunmen. During trial, Jewell identified defendant in open court as being one of the gunmen he saw leave the club where the robbery/murder occurred.

Defense counsel asked Jewell why he was armed when he stumbled upon the gunmen, since his shift had ended and he was off duty when he saw the car. Jewell responded, "A police officer in the State of New Jersey is never technically off duty. We're required to carry our weapon anytime we're outside of the house in the entire State. If we're without our weapon in the State of New Jersey, we can be brought up on charges." Defense counsel asked no further questions about this particular response.

Defendant filed pro se a first petition for PCR. The court assigned counsel to represent defendant. PCR counsel filed a supplemental brief. Judge Isabella heard oral arguments and issued a written opinion denying defendant's request for an evidentiary hearing and the petition itself.

On appeal, defendant contends:

THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO FIND THAT DEFENDANT HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10. WHEN TRIAL COUNSEL FAILED TO OBJECT TO A JUROR WHO HAD ACCESS TO INFORMATION FROM OUTSIDE SOURCES AND FAILED TO REQUEST THAT THE COURT CONDUCT FURTHER INQUIRY INTO THE MATTER.

We are not persuaded.

At the outset, we note that this issue is procedurally barred by Rule 3:22-4 (Bar of Grounds Not Raised in Prior Proceedings). This issue is not raised before us. Moreover, on direct appeal defendant alleged ineffective assistance of trial counsel for a different reason. Nonetheless, for the sake of a complete appellate review, we will discuss the merits.

The contention is based on the following incident. During trial, Juror Number 10's wife sat in the courtroom with the rest of the public. On day two of trial, Judge Isabella noticed the juror's wife and called her to sidebar while the jury was out of the courtroom on a break. The transcript reflects the following exchange:

THE COURT: Miss, please come up here, in the blue, please come up.

(Sidebar discussion out of the jury's presence.)

THE COURT: Counsel, you can come up. Counsel, you can come up, too. Okay, how are you?

JUROR #10'S WIFE: Fine.

. . .

THE COURT: Your husband is on the jury?

A: Yes.

Q. Let me explain something to you. There's going to be proceedings taking place when the jury is out of the room that they're not supposed to know about.

A: Okay.

Q. We have legal discussions that aren't relevant to this case; okay? As a member of the [p]ublic, you're more than welcome to sit here, I can't ask you to leave, but I have to make certain you don't discuss anything we discuss of a legal nature with your husband at home during the course of the trial. Understood?

A: I understand.

Q. I have your assurance, correct?

A: Positively.

Q. Thank you very much. You may go.

After dismissing the jurors at the end of day two of trial, Judge Isabella again called Juror Number 10's wife to the bench to address the fact that she was observed taking notes. Judge Isabella then questioned the wife specifically about the note-taking:

THE COURT: I had one other question for you. I don't mean to bother you.

JUROR #10'S WIFE: That's okay.

Q. I saw you taking notes. Were you taking any notes about this case?

A: No.

Q. Well, if you did, please throw them away, and make sure your husband doesn't see them. Okay?

A: No, I understand what you said before. When the jury goes out, I could go out.

Q. I can't make you do that. It's a public place.

A: If that makes you comfortable. But that's what you meant, and not the whole other case.

Q. No, what I meant to say was this. It's a public place, so you're free to be here throughout the whole trial. That's what America is all about, freedom and openness of the courts. I was concerned, perhaps, in the event we had discussion when the jury went in the jury room about legal matters.

A: That's what I mean. I could leave then.

Q. You're free to do that if you want to, but you're free to stay as well; all right?

A: I'm just here to observe. I just want to be here to keep him company.

Q. Sure. Very good idea. But if you do hear anything in the courtroom while they're not here, don't discuss it with your husband. In fact, don't discuss the case with him at all.

A: No. I won't. I know that's a priority.

Neither counsel made a request of the court with respect to Juror Number 10's wife.

Defendant argues trial counsel was ineffective for failing to move for a mistrial or to push for further questioning. Defendant suggests that "[i]t seems clear, there can be no other reason [that the wife took notes] other than to help her husband or to have a conversation with him after he came home." At the PCR hearing, Judge Isabella found that defendant "presented no evidence whatsoever that [Juror Number 10's] wife shared any information about the trial with her husband" and such an "anything is possible" argument falls "far short" of establishing a prima facie showing of ineffective assistance of counsel on this ground.

In all criminal prosecutions, a defendant is entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 51 (1987). The standard for determining ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed 2d. at 692-93.

To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-part test set out in Strickland, which was adopted by the New Jersey Supreme Court in Fritz, supra, 105 N.J. at 42. First, defendant must show that counsel actually "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This is a difficult burden to meet, as there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Castagna, 187 N.J. 293 (2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Second, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." State v. Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Thus, the error committed "must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

If a defendant satisfies the prima facie case, then the trial court will grant evidentiary hearings to determine whether counsel's assistance actually was ineffective. State v. Preciose, 129 N.J. 451, 462 (1992). In determining whether a defendant has established a prima facie case, facts must be viewed in the light most favorable to the defendant. Id. at 462-63.

Here, defendant's argument fails. We note that Judge Isabella reminded the jury "at least 30 to 40 times" throughout the trial not to discuss the case with family members or friends. Juror Number 10 was present for each of those cautionary instructions. Judge Isabella also questioned Juror Number 10's wife twice in a single day. Both times the wife indicated she understood the importance of not discussing the trial with her husband. When asked if she were taking notes about the case, she indicated she was not. In fact, she indicated she was there merely to keep her husband company. Given these instructions, counsel's failure to press for further questioning or a mistrial is well within the presumption of "reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. 2065, 80 L. Ed. 2d at 694-95.

Moreover, even if such failure to ask further questions or pursue a mistrial were found to be ineffective assistance, defendant cannot establish that "but for" counsel's error the result of the proceeding would have been different. Castagna, supra, 187 N.J. at 314. It is unlikely that a motion for mistrial would have been granted, given Judge Isabella's satisfaction with the wife's reassurances. See State v. Manley, 54 N.J. 259, 270 (1969) ("[I]n administering the criminal law the courts must rely upon the jurors' ability and willingness to follow . . . instruction without cavil or question.")

Therefore, defendant has failed to make a prima facie showing of ineffective assistance of trial counsel.

Defendant also contends:

THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN ALLOWING THE STATE TO PROVIDE TESTIMONY ABOUT THE NEWARK POLICE DEPARTMENT WEAPON POLICY AND REGULATIONS THAT PENALIZE OFFICERS FOR DEPARTING FROM THIS POLICY.

We are not persuaded.

Once again, this issue is procedurally barred by operation of Rule 3:22-4 because it was not raised on direct appeal.

 
Defendant argues that Judge Isabella's written opinion "cites the prosecutor's brief as the basis for [his] decision" and thus he "abused [his] discretion in allowing the prosecutor to cross the line from legal argument into testimony." Such a claim is without merit.

Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

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A-1728-07T4

November 2, 2009