STATE OF NEW JERSEY v. ALTERICK KELLY a/k/a CLARENCE KELLY a/k/a ARNOLD STITH a/k/a ARNALD STITH a/k/a KHALIF STITH a/k/a TYREE STITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4331-07T44331-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALTERICK KELLY a/k/a CLARENCE

KELLY a/k/a ARNOLD STITH a/k/a

ARNALD STITH a/k/a KHALIF STITH

a/k/a TYREE STITH,

Defendant-Appellant.

 

Submitted October 19, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-08-3556.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

This is an appeal from the denial of defendant Alterick Kelly's petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant raises the following point through counsel:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL/APPELLATE COUNSEL, IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

In his pro se brief, defendant adds:

POINT ONE

THE PCR COURT'S RULING DENYING AN EVIDENTIARY HEARING AND PCR RELIEF WAS NOT SUPPORTED BY SUFFICIENT AND CREDIBLE EVIDENCE IN THE RECORD THEREFORE THE ORDER DENYING THE PCR SHOULD BE REVERSED AND THE APPROPRIATE RELIEF SHOULD BE GRANTED.

We reject defendant's contentions and affirm.

On June 13, 2000, a jury convicted defendant of the first-degree aggravated manslaughter of Derrick Powell, N.J.S.A. 2C:11-4a, as a lesser-included offense of murder (count one); the aggravated manslaughter of Jhidoniane Anderson, also as a lesser-included offense of the original charge of murder (count two); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count seven); and second-degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4a (count eight). Defendant was sentenced on July 28, 2000, to thirty years imprisonment on count one, subject to eighty-five percent parole ineligibility in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; twenty years subject to NERA on count two, consecutive to count one; five years imprisonment on count seven, concurrent to count two and consecutive to count one; and ten years with five years of parole ineligibility on count eight, concurrent to count two and consecutive to count one. Defendant's direct appeal was denied, and his petition for certification was also denied on October 21, 2002. State v. Kelly, No. A-1744-00 (App. Div.), certif. denied, 174 N.J. 548 (2002).

On August 24, 2004, defendant filed this pro se petition for PCR and was thereafter assigned representation through the Office of the Public Defender. Oral argument was conducted and the petition denied on January 11, 2008.

The shooting incident which resulted in the convictions occurred in Newark on April 29, 1998. Defendant's co-defendants, DeShawn Stith and Stephan Whitley, claimed that it was defendant's idea to murder Powell and Anderson. Stith and Whitley both testified at defendant's trial that because of an ongoing drug turf dispute, defendant decided that they had to kill the victims in order to avoid being killed by them. Accordingly, during the early morning hours of April 29, while each man was armed with a handgun, they walked the victims into a backyard. All three opened fire and then fled.

Police were immediately called to the crime scene. A trail of blood led them to a nearby apartment, where upon being admitted they saw defendant holding a handgun, standing behind the person who opened the door. When the police entered, defendant quickly left the room. When defendant testified, he denied holding a gun, insisting that the officer had mistaken a black cordless phone for a weapon. The blood trail came from a bullet wound to defendant's hand. He claimed the injury was inflicted when he attempted to intercede between Stith and Whitley and the victims, whom he said Stith and Whitley were planning to rob. Stith and Whitley were also present in the apartment.

Stith and Whitley entered guilty pleas to two aggravated manslaughter charges. In exchange for their guilty pleas and their agreement to testify truthfully in defendant's trial, Whitley received an aggregate sentence of twenty-four years subject to NERA, and Stith received an aggregate twenty-five years subject to NERA.

Under the familiar test on a claim of ineffective assistance of counsel, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "there is 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. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

At the close of the trial, the judge gave the Model Jury Charges on murder, aggravated manslaughter, reckless manslaughter, possession, and accomplice liability, among other things. During the first day of deliberations, the jury sent a note asking to be recharged on murder, aggravated manslaughter, reckless manslaughter and possession. The trial court asked the foreperson, after conferring with counsel, if the panel wanted the complete instructions reread or merely the essential elements of each offense. The foreperson responded that they wanted to hear the entire instructions. The court therefore recharged the jury as they requested, and also recharged as to intoxication, as the judge opined that the intoxication instruction was inextricably intertwined with the homicide instructions and the varying mental states necessary for each offense.

To reiterate, before he administered the instructions again, the judge asked the foreperson to confirm his interpretation of the note. After he reinstructed the panel, the judge asked for confirmation that the instructions he had just given were what they had asked to hear. The foreperson answered "yes."

Defense counsel did not request the court to repeat the accomplice liability instruction. Defendant now claims this failure of trial counsel to do so, and the failure of appellate counsel to raise this omission on appeal, constitutes ineffective assistance of counsel.

"When a jury requests clarification," a judge must "clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). The court is obliged to determine the meaning of any ambiguous request. State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995). In this case, the judge did precisely that he clarified his understanding of the jury's note orally prior to the recharge and confirmed that they were satisfied to continue deliberations without further instructions after the recharge.

Erroneous jury instructions "are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). Therefore, defendant contends, the court committed harmful error by failing to remind the jury that even if a principal is guilty of purposeful murder an accomplice can be found guilty of a lesser crime. In other words, that the accomplice liability instruction should have been given anew.

In our view, defendant's reliance on State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998), in support of this contention, is misplaced. Harrington requires a jury to be instructed that it can find a principal and an accomplice guilty of different degrees of the same crime or of different crimes altogether. Ibid. It is undisputed that the judge gave that instruction as part of his comprehensive closing charge. It is also undisputed that the jury did not ask to hear the instruction again.

There is no requirement, nor should there be, that a judge reread all instructions previously administered to a jury when the jury requests specific charges be read to them. State v. McClain, 248 N.J. Super. 409, 421 (App. Div.), certif. denied, 126 N.J. 341 (1991). The fact that the jury did not ask implies that they understood; to assume otherwise is unfounded speculation. As we said in McClain, "[t]he failure of the jury to ask for further clarification or indicate confusion demonstrates that the response was satisfactory." Ibid. Indeed, it would not have been appropriate for the judge to have recharged accomplice liability sua sponte. See State v. Perry, 124 N.J. 128, 162-64 (1991). There was no basis for trial counsel to make the request or for appellate counsel to raise this argument on appeal. In addition, defendant does not even suggest the impact this would have had on the outcome, particularly where he was found guilty of the lesser offense and not of murder.

Defendant also contends that counsel was ineffective because he did not request an instruction as to the proper use of the co-defendants' testimony. To the contrary, as the State points out in its brief, the judge told the jury:

Also on the subject of credibility of the witnesses, in this case evidence has been introduced to show that certain witnesses currently have testified pursuant to plea agreements that are now in effect under which they pled guilty to lesser charges, await sentences and dismissal of certain other charges. In criminal trials when a witness takes the witness stand to testify the fact that he has such an agreement or charges pending against him or a sentence being awaited or charges to be dismissed is permitted to be placed before the jury for your consideration, not for the general credibility to be given to the testimony of that witness, but only to evaluate whether or not the witness has testified the way he did in hopes or consideration of getting favorable treatment from the State in connection with the pending charges or pending plea agreement.

Now, each of the other two defendants named in all of the counts of the indictment 1 through 9 . . . that are on trial here, that is Stephan Whitley and [DeShawn] Stith, each has admitted his guilt and has testified on behalf of the State. I remind you that each has admitted guilt to the offense of aggravated manslaughter rather than the offense of murder. The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, as to each of them you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or any feelings of revenge or reprisal. If you believe that the particular witness is credible and worth[y] of belief then you have a right to find the defendant guilty on the testimony of the witness alone provided, of course, that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of the defendant's guilt.

. . . .

You are not to be affected by the fact that another defendant has pled guilty to a particular count or a particular charge. That does not bear upon the issue of whether this defendant is guilty or not guilty. So you're not to be affected by that in making your determination as to whether or not this defendant is not guilty or guilty of any offense in this case.

The court's recitation of the model charge did inform the jury that the fact that Stith and Whitley had entered guilty pleas had no bearing on the issue of the guilt of defendant. Since the record does not bear out defendant's assertion, we will not consider this issue further. R. 2:11-3(e)(2).

 
Affirmed.

While the victim has been referred to as Jhidoniane Anderson in this case, he is referred to as John Denine Anderson in a companion case, State v. DeShawn Stith, No. A-4941-07T4.

The matter was actually remanded for merger of the possession of a weapon for an unlawful purpose into count one. No amended judgment appears in the appendices. The only judgment of conviction included in this record is dated July 28, 2000.

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A-4331-07T4

December 10, 2009