STATE OF NEW JERSEY v. JERMAINE VAUGHN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2877-06T42877-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE VAUGHN,

Defendant-Appellant.

________________________________________________________________

 

Submitted: September 16, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-12-1402.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jermaine Vaughn appeals from the denial of his petition for post-conviction relief (PCR). He is serving a life term of imprisonment with a thirty-year period of parole ineligibility following his 1999 conviction of felony murder, robbery, and possession of a weapon for an unlawful purpose. We affirm.

This court affirmed defendant's conviction and sentence, but remanded for a Miranda hearing. We instructed the trial judge to determine whether defendant had invoked his right to remain silent. State v. Vaughn, No. A-6299-98 (App. Div. June 26, 2001). The Supreme Court denied certification. 170 N.J. 87 (2001). Following the Miranda hearing, the trial judge held that defendant had not invoked his right to remain silent. Defendant appealed, and this court affirmed. No. A-3921-01 (App. Div. June 7, 2004). The Supreme Court denied certification. 182 N.J. 143 (2004).

The conviction arises from a chance encounter between Adrian Davis, defendant and co-defendant Jeremiah Bass during the evening of June 5, 1995. After driving around Trenton, stopping at his home to obtain a black hooded jacket and a green hooded sweatshirt, and consuming a forty-ounce bottle of malt liquor, defendant and co-defendant decided they needed money to get into parties. Both men were armed. As they walked down a street, defendant had his revolver in his hand and noticed the victim walking towards him. The man walked right up to defendant and co-defendant. After a momentary struggle, defendant's gun discharged, the man fell to the ground, and defendant and co-defendant walked away. The victim was pronounced dead at the hospital. A woman observed the entire encounter from the front window of her home. When she called police, she informed the dispatcher that the men had entered Marion Street on foot.

Soon, police observed two men on Marion Street fleeing the area on foot. After a foot pursuit, during which police observed co-defendant discard his gun and ammunition, the co-defendant was detained and arrested. Although police located a small chrome revolver and a spent .32 caliber shell casing in the pocket of a black jacket in an empty lot, defendant was not arrested until June 9, when police located him in the hospital recovering from a wound received in another incident on June 6.

When released from the hospital, police arrested defendant on a warrant issued in connection with the June 6 incident. At the police station, police advised defendant why he was in custody, and a detective administered his Miranda rights. Defendant waived his rights, and approximately two hours later provided a formal statement in which he admitted shooting the victim. He explained the incident as follows: "as we got closer to the [victim] he saw my gun, and then he got up on me real quick, grabbed my jacket and pulled me towards him, and then is when the gun went off." This statement was introduced at trial.

In his PCR petition, defendant argued that the arrest warrant for the June 5 shooting was not properly issued; therefore, his post-arrest statement should have been suppressed. Moreover, trial counsel failed to communicate with defendant prior to trial, failed to conduct an investigation and failed to interview witnesses, failed to file the necessary motions, and failed to object to jury instructions. Defendant highlighted trial counsel's failure to explore an intoxication defense. In addition, defendant asserted that "direct appeal counsel was ineffective in that he failed to raise necessary and important issues."

Judge Delehey conducted an evidentiary hearing. At that time, defendant presented the testimony of trial counsel and the detective who administered Miranda rights to defendant, conducted the interrogation and took defendant's statement. The record remained open to allow submission of a report from an expert concerning the effect of phencyclidine and whether the ingestion of this substance would support an intoxication defense. Subsequently, PCR counsel advised the court that an expert report would not be submitted.

In a lengthy written opinion, Judge Delehey denied the petition. The judge found that defendant was arrested after his co-defendant provided a statement inculpating defendant. In short, police had probable cause to arrest defendant. A formal complaint issued following defendant's inculpatory statement and an indictment issued in due course. The judge also noted the warrantless arrest issue had not been raised on direct appeal and was barred pursuant to Rule 3:22-4.

The judge also found that defendant failed to submit any credible evidence to support his contention that he had a viable alibi or intoxication defense. He also found that defendant proffered no information that would have supported retention of an expert and submission of a report concerning the voluntariness of his confession or factors to mitigate the sentence. Furthermore, we rejected defendant's argument on direct appeal that his sentence was excessive.

The judge found that defendant's contention that trial counsel failed to adequately challenge inconsistencies leading to his arrest was too vague and unsupported to allow meaningful consideration. The judge also found that defendant was not entitled to a passion/provocation charge as a lesser included offense because he was charged with felony murder not purposeful or knowing murder. In conclusion, Judge Delehey determined that defendant failed to establish that trial counsel provided a defense that fell below an objective standard of reasonableness or that any error or deficiency contributed to an unwarranted conviction.

On appeal, defendant raises the following arguments:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED VAUGHN OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

A. Vaughn Was Deprived of His Constitutional Right To Effective Assistance of Counsel Under the United States Constitution and the New Jersey Constitution.

B. Trial Counsel Failed to Raise the Intoxication Defense and to Retain an Expert to Support the Intoxication Defense.

C. Trial Counsel Failed to Represent Vaughn Effectively During the Trial.

D. Trial Counsel Failed to Investigate Adequately Vaughn's Possible Defenses Prior to Trial.

E. Vaughn Was Deprived of His Constitutional Right to Effective Assistance of Counsel at Trial Because Counsel Failed To Challenge Whether the Police Scrupulously Honored Vaughn's Assertion of His Right to Remain Silent.

F. Vaughn Was Deprived of His Constitutional Right to Effective Assistance of Counsel in Connection With Challenging Vaughn's Being Arrested in Violation of His Constitutional Rights.

II. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY VAUGHN.

In a pro se supplemental brief, defendant raises the following arguments:

POINT I

THE COURT SUB JUDICE ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

a. THE PCR COURT ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENT AS IT WAS THE PRODUCT OF AN ILLEGAL ARREST, AND FOR FAILING TO GIVE ANY WEIGHT TO THE EVIDENCE OFFERED BY THE TRENTON MUNICIPAL COURT CLERK, BOTH OF WHICH FORMED THE BASIS OF DEFENDANT'S ISSUE FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

b. PCR COURT ERRED IN NOT GRANTING RELIEF ON DEFENDANT'S INTOXICATION ISSUE.

c. PCR COURT ERRED IN ENFORCING THE PROCEDURAL BAR OF R. 3:22-4, ALTHOUGH IT COULD BE ARGUED THAT THE ISSUES RAISED IN DEFENDANT'S PETITION COULD HAVE BEEN RAISED ON APPEAL, IT IS ASSERTED THAT THE PROCEDURAL BAR CONTAINED IN R. 3:22-4 SHOULD NOT BE APPLICABLE IN THIS CASE.

POINT II

CONTRARY TO THE 6TH AND 14TH AMENDMENTS, DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE PRE-TRIAL DISCOVERY AND ADEQUATELY CHALLENGE DEFENDANT'S CONFESSION AS IT WAS A PRODUCT OF AN ILLEGAL ARREST ON ACCOUNT OF DEFECTS IN WARRANT AND ARREST PROCEDURE AND FAILED TO CONDUCT EFFECTIVE PRE-TRIAL INVESTIGATION OF CERTAIN WITNESSES, DIRECTLY EFFECTED THE OUTCOME OF THE TRIAL, CONTRARY TO THOSE RIGHTS AND PROTECTIONS GUARANTEED UNDER THE 6TH AND 14TH AMENDMENTS OF U.S. CONSTITUTION AND UNDER NEW JERSEY CONSTITUTION ARTICLE 1, PAR. 8, 9, AND 10, REQUIRING REVERSAL OF THE CONVICTION, CONFESSION SUPPRESSED, COMPLAINTS AGAINST DEFENDANT DISMISSED, WARRANT QUASHED AND SENTENCE VACATED.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN INTOXICATION CHARGE WHERE EVIDENCE AND DEFENDANT'S ADMISSION SUPPORTED CLAIM AND FAILED TO PRESENT EXPERT TESTIMONY THERETO, THUS VIOLATING DEFENDANT'S 6TH AND 14TH AMENDMENTS.

POINT IV

PCR COUNSEL WAS INEFFECTIVE, THUS VIOLATING DEFENDANT'S RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS.

a. PCR COUNSEL FAILED TO CALL TRENTON MUNICIPAL COURT CLERK-MARIA COSME AT THE PCR HEARING AS A WITNESS TO DEFENDANT'S ARREST WARRANT VIOLATIONS AFTER RELYING ON HER IN DEFENDANT'S INITIAL PETITION FOR PCR RAISING NEWLY DISCOVERED EVIDENCE, AND OR RELY ON MS. COSME'S TESTIMONY IN ANOTHER CASE.

b. PCR COUNSEL FAILED TO RETAIN EXPERT TESTIMONY WITH REGARD TO THE DEFENDANT'S INTOXICATION ISSUE, WHICH WAS SUPPORTED BY MEDICAL RECORDS, THUS WARRANTING INEFFECTIVE ASSISTANCE OF COUNSEL.

c. PCR COUNSEL FAILED TO CALL CO-DEFENDANT - JEREMIAH BASS TO TESTIFY TO THE AFFIDAVIT HE MADE ON THE DEFENDANT'S BEHALF AND ILL-ADVISING HIM TO SAY HE DID THE SHOOTING AND NOT THE DEFENDANT, THUS WARRANTING INEFFECTIVE ASSISTANCE OF COUNSEL.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, the defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, the defendant must demonstrate "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. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

As stated by Judge Delehey in his comprehensive opinion, defendant's petition suffers from the absence of specific allegations of ineffective assistance of counsel and defendant had ample opportunity to produce such evidence. An evidentiary hearing was conducted over two days, but defendant did not identify the witnesses who would have supported an alibi defense or produce the specific facts and expert testimony to support a finding that defendant had a viable intoxication defense. Without such evidence, defendant cannot establish that trial counsel failed to follow objectively reasonable standards in the conduct of defendant's defense.

Similarly, defendant must do more than simply claim that the cross-examination of the detective who interrogated defendant was inadequate and that trial counsel did not prepare to conduct an adequate examination. Defendant failed to suggest what questions should have been posed. Defendant's co-defendant was not called as a State's witness. It is irrelevant whether trial counsel interviewed him or was prepared to effectively cross-examine him.

This court has also addressed on direct appeal the voluntariness of defendant's confession and whether he invoked his right to remain silent. Having addressed the issues on direct appeal, defendant may not pursue the same issue in this petition. R. 3:22-5.

We concur with Judge Delehey that the absence of an arrest warrant for the June 5, 1995 offense is without merit. Defendant fails to recognize that a criminal complaint issued on June 7, 1995, for events that occurred on June 6. At the time of his release from the hospital and his arrest, police had probable cause to believe that he was involved in the shooting of Adrian Davis on June 5, but he was arrested on a complaint issued for separate acts committed by him on June 6.

We, therefore, affirm the January 10, 2007 order denying defendant's petition for PCR.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2877-06T4

October 14, 2009