STATE OF NEW JERSEY v. KHALIF JAMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3407-06T43407-06T4

A-0324-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALIF JAMES,

Defendant-Appellant.

_____________________________________

 

Submitted March 11, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-00733.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief; Peter L. Benza, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

These two appeals by defendant, Khalif James, were heard back-to-back. We decide both appeals in one opinion. In A-3407-06T4, defendant appeals from the denial of his petition for post-conviction relief (PCR). In A-0324-07T4, defendant appeals from the denial of his motion for a new trial based on newly discovered evidence. We affirm on both appeals.

Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Judge Miriam N. Span merged the felony murder conviction into the murder conviction, and the possession of a weapon for an unlawful purpose conviction into the robbery conviction. Concurrent terms aggregating life imprisonment were imposed, with a thirty-year parole disqualifier. On direct appeal, we affirmed. State v. James, 346 N.J. Super. 441 (App. Div.), certif. denied, 174 N.J. 193 (2002).

The proofs are set forth at length in our earlier opinion. To summarize, defendant and co-defendants, Lawrence McGriff and Jason Means, held up a gas station. During the robbery, the gas station attendant, Ramon Medina, was shot four times by two different guns. He died. According to the State, defendant, McGriff and Means agreed to do the robbery. Defendant and McGriff were armed. Means dropped McGriff and defendant off near the gas station. He then drove to the gas station with a fourth person, Thomas, and obtained $3.00 worth of gas. The other two walked up to the attendant and shot him. Means then picked them up and fled the area.

Later, McGriff gave his gun to Means. Means hid it in a ceiling tile of his home. Eventually, the police were led to Means, who had initially pretended to be an innocent bystander. However, McGriff implicated Means and later implicated defendant.

Defendant's trial was severed from the co-defendants. Prior to trial, defendant moved to suppress a statement made by witness Travelle Jackson. According to Jackson, defendant gave him his gun to hide following the shooting. The police were ultimately able to retrieve the gun.

The problem with Jackson's statement to the officer was that the police were led to Jackson by defendant's confession, which was suppressed. However, after Jackson testified at trial, Judge Span reconsidered and admitted Jackson's statement, as well as the gun, pursuant to the inevitable discovery rule. This was triggered by Jackson's testimony that he would have turned over the gun anyway because he was worried about children in the park getting hurt.

On direct appeal, we affirmed. State v. James, 346 N.J. Super. 441 (App. Div.), certif. denied, 174 N.J. 193 (2002).

PCR PETITION

Defendant filed pro se a PCR petition and brief. Counsel was assigned. Counsel filed a brief alleging that trial counsel had rendered ineffective assistance by failing to: obtain a plea agreement; object to autopsy photographs; object to an improper charge regarding a prior inconsistent statement; effectively argue at sentencing; argue against double counting an element of the crime at sentencing; argue against admission of the .38 caliber Smith & Wesson; and object to the jury charge on the law of robbery and attempt. The petition also faulted appellate counsel for failing to raise on appeal the double counting of an element of the crime and the jury charge on robbery and attempt.

Judge James C. Heimlich, who was not the trial judge, denied the petition on the grounds that a prima facie ineffective assistance of counsel claim was not established. Moreover, many of the issues were procedurally barred pursuant to Rule 3:22-4 because they could have been raised on direct appeal.

On appeal, defendant contends:

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF [PCR] COUNSEL, WHO FAILED TO PURSUE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND BECAUSE OTHER ISSUES RAISED BY THE PETITION HAVE NOT YET BEEN DETERMINED ON THE MERITS, THE MATTER SHOULD BE REMANDED.

Defendant filed pro se a supplemental brief contending:

I. DEFENDANT-PETITIONER'S POST CONVICTION PROCEEDINGS RESULTED IN A FUNDAMENTAL INJUSTICE, CONTRARY TO THE CONSTITUTION OF THE UNITED STATES AND THE STATE OF NEW JERSEY.

II. PCR COURT ERRED WHEN DENYING PETITIONER'S ASSISTANCE OF TRIAL COUNSEL CLAIMS RENDERING THE POST CONVICTION PROCEEDINGS INTO A FUNDAMENTAL INJUSTICE CONTRARY TO THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.

III. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILURE TO RAISE MERITORIOUS CLAIMS ON DIRECT APPEAL.

Defendant further filed pro se a reply brief contending:

I. THE STATE'S CONTENTIONS OF DEFENDANT BEING PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL DURING [PCR] PETITION IS ABSOLUTELY BASELESS.

II. STATE'S CONTENTIONS OF THE DEFENDANT'S OBJECTION TO THE JURY CHARGE LACK MERIT AND IS PROCEDURALLY BARRED IS MERITLESS.

III. THE STATE'S CLAIM OF DEFENDANT'S

FAILURE TO MAKE A PRIMA FACIE CASE FOR PROSECUTORIAL MISCONDUCT IS MERITLESS.

We disagree with these contentions.

To succeed on an ineffective assistance of counsel claim, defendant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland two-prong standard has been strictly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42 (1987).

The first prong of the Strickland-Fritz standard requires defendant to demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether counsel's conduct fell below an objective standard of reasonableness. Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Therefore, "[a]s a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

A defendant challenging counsel's performance must overcome a strong presumption that counsel "exercise[d] reasonable professional judgment." 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." Ibid. This deference requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid.

The second prong of the Strickland-Fritz test requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair trial. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing 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. In such cases where there is a complete denial of the right to counsel altogether, prejudice may be presumed. United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).

Unless a defendant makes both showings under Strickland, ineffective assistance of counsel cannot be found. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

We find that a prima facie ineffective assistance of counsel claim has not been established here. Defendant has not satisfied the second prong of Strickland, that "but for counsel's [alleged] 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.

NEW TRIAL MOTION

Defendant filed a motion for a new trial based on newly discovered evidence. The newly discovered evidence defendant relied on was that in 2005, Jackson recanted the statements made at trial that the gun would have been inevitably discovered. Jackson claimed that the testimony was a result of being threatened by the police. Judge Heimlich denied the motion.

Defendant contends on appeal:

THE HEARING JUDGE WAS INCORRECT IN CONCLUDING THAT DEFENDANT'S MOTION IS PRECLUDED FROM BEING SUCCESSFUL BY THE INEVITABLE DISCOVERY AND INDEPENDENT SOURCE RULES.

Defendant filed pro se a supplemental brief contending:

I. THE JUDGE ERRED WHEN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE, THEREFORE DEFENDANT'S CONVICTION MUST BE REVERSED AND REMANDED FOR A NEW TRIAL.

II. THE LOWER COURT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS WHEN DENYING DEFENDANT'S OPPORTUNITY TO PRESENT MATERIAL EVIDENCE IN SUPPORT OF CONSTITUTIONAL ALLEGATIONS OF MATERIAL FACT.

We disagree.

A motion for a new trial can be made at any time when new evidence is discovered. R. 3:20-2. It is, however, within the sound discretion of the trial court to grant such a motion and the exercise of that discretion will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Artis, 36 N.J. 538, 541 (1962).

To meet the standard for a new trial based on newly discovered evidence, defendant must establish that the evidence is:

(1) material, and not "merely" cumulative, impeaching, or contradictory; (2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and (3) that the evidence "would probably change the jury's verdict if a new trial were granted."

[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

All three prongs of that test must be satisfied before a defendant will gain the relief of a new trial. Ways, supra, 180 N.J. at 187.

At the conclusion of the hearing on the motion for a new trial, Judge Heimlich denied defendant's motion. He stated the following reason:

The evidence in this case from all of [the] testimony, independent of Mr. Jackson, is overwhelming showing the defendant's involvement in the robbery before it started, his active participation, and his active participation after the robbery to, in fact, affect the investigation or testimony. And the Court finds that even if we were to take the testimony of Jackson as the defendant argues, Judge Span has already ruled that independent of that testimony, she would have admitted the gun under the Independent Source Doctrine and Inevitable Discovery Doctrine.

We agree with Judge Heimlich's analysis and find that defendant has failed to meet the standard for a new trial based on newly discovered evidence.

 
Affirmed.

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A-3407-06T4

September 4, 2009