STATE OF NEW JERSEY v. JAYSON VREELAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1697-07T41697-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAYSON VREELAND,

Defendant-Appellant.

________________________________

 

Submitted: March 24, 2010 - Decided:

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Sussex County, Indictment No. 97-07-00153.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Francis A. Koch and Laura L. Nazzaro, Assistant Prosecutors, of counsel and on the briefs).

Appellant Jayson Vreeland filed a pro se supplemental brief.

PER CURIAM

Defendant seeks reversal of the denial of his petition for post conviction relief (PCR) and an evidentiary hearing on his claim that he received ineffective assistance of counsel. He asserts the claim against trial, appellate and PCR counsel. We affirm the order of August 29, 2007, denying PCR substantially for the reasons stated by Judge Thomas J. Critchley in his comprehensive oral opinion of August 7, 2007. By way of emphasis with respect to the issues raised on this appeal, we add the following.

As defendant stated on his direct appeal:

This case concerns the death of two pizza deliverymen, Jeremy Giordano and Georgio Gallara, which occurred on the evening of April 19, 1997. The [S]tate alleged they were killed by defendant Jayson Vreeland and codefendant Thomas Koscovich. The State alleged Koscovich and Vreeland telephoned for pizza to be delivered to a remote location in Sussex County and then shot and robbed the deliverymen upon their arrival.

Defendant was found guilty of purposeful or knowing murder of Gallara, felony murder of Gallara, aggravated manslaughter of Giordano, first degree robbery, second degree burglary, conspiracy, possession of a firearm for an unlawful purpose, and possession of the firearm without a permit. Defendant was sentenced to life imprisonment with thirty years to be served before parole eligibility for the purposeful or knowing murder of Gallara, a consecutive sentence of twenty years, with ten years to be served before eligibility, for the aggravated manslaughter, and consecutive sentences for the armed robbery, burglary and permit convictions aggregating life imprisonment plus forty-six years with fifty-one years to be served before parole eligibility. On defendant's direct appeal, we affirmed the convictions, and the consecutive sentences for the two homicides and armed robbery, but ordered the remaining terms to be served concurrently. As a result, defendant is now serving an aggregate sentence of life imprisonment plus thirty-five years, with forty-seven years to be served before parole eligibility.

On this appeal defendant argues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE R. 3:22-2 CRITERIA.

POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PROTECT THE DEFENDANT'S RIGHT TO TESTIFY AT THE JURISDICTIONAL WAIVER HEARING AND THE DEFENDANT'S RIGHT TO BE PRESENT IN COURT DURING THE JURY CHARGE CONFERENCE; TRIAL COUNSEL'S FAILURE TO CALL WITNESSES TO IMPEACH CHARLES VARELLA'S CREDIBILITY; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTION ON MOTIVE; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY, WERE VIOLATED. ALTERNATIVELY, THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING CONCERNING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 9 AND PAR. 10, OF THE NEW JERESY CONSTITUTION.

POINT V: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE SUBMISSIONS IN SUUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

POINT VI: POST-CONVICTION RELIEF COUNSEL WAS INEFFECTIVE.

There was an extensive voir dire of defendant and his mother concerning his right to testify during the juvenile waiver proceeding. He was told of the immunity which would accompany such testimony, but expressly advised the court that he decided not to do so because his testimony would be released to the press. In any event, given the nature of the "chart one" offense charged and a juvenile waiver proceeding in a murder case, we cannot conceive that the result of the waiver hearing would have been any different had defendant testified or contested the waiver. See State v. Scott, 141 N.J. 457, 471-72 (1995); State v. R.G.D., 108 N.J. 1, 9-15 (1987); State v. Onque, 290 N.J. Super. 578, 586 (App. Div.), certif. denied, 146 N.J. 497 (1996); State v. S.M., 211 N.J. Super. 675, 684-85 (App. Div. 1987). See also Strickland v. Washington, 466 U.S. 668, 687, 699, 104 S. Ct. 2052, 2064, 2071-72, 80 L. Ed. 2d 674, 692, 701 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Similarly, there is no showing of what inmates would have said in an endeavor to impeach the testimony of defendant's cellmate Charles Varella. His argument about the failure to call those inmates is that "counsel's failure to produce as witnesses the three inmates from whom written statements had been secured was ineffective assistance of counsel because their testimony would have impeached the credibility of Varella." For this proposition defendant cites his own letter to Judge Critchley, that, but for the ineffective assistance in not calling these witnesses, he would have been able to impeach Varella. Defense counsel apparently obtained statements from witnesses that Varella was working with the prosecutor's office, but there are no certifications from any of the witnesses for the PCR as to what their testimony would have been at a trial. Moreover, as Judge Critchley stated in his PCR opinion, calling such witnesses "might very well trigger additional counter cross examination that would just completely reamplify and rechurn the fact that the defendant had apparently in several contexts given very damning admissions," and had given similar oral and recorded statements to the police. In any event, as the judge put it, even if counsel erred in not calling these witnesses, it would not "have changed the result in this case one iota."

We will also assume, for the sake of argument, that appellate counsel should have raised the change of venue issue on the direct appeal, but do not accept defendant's contention that we would have reversed any conviction based on the denial of a change of venue or that such a change would have resulted in a different verdict. Judge Reginald Stanton denied a motion for change of venue twice, once before and once after the capital trial of co-defendant Koskovich, and Judge Lorraine Parker, who presided over the trial, conducted an extensive individual voir dire of prospective jurors, including the issue of pretrial publicity or knowledge of the case, when the jury was selected. She excused jurors during the voir dire to assure a fair and impartial jury. Moreover, defendant points to absolutely nothing in the record about any sitting or deliberating juror who should have been excused because of an inability to be fair or impartial. Judge Stanton in denying the motion for change of venue indicated the trial would be moved from Sussex to Morris County if the jury selection revealed defendant could not receive a fair and impartial jury in Sussex. Accordingly, if the change of venue issue were raised on the direct appeal, it undoubtedly would have been rejected as unmeritorious. See State v. Harris, 156 N.J. 122, 164-68 (1998) (pretrial publicity can be cured by a proper voir dire), cert. denied, 532 U.S 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); State v. List, 270 N.J. Super. 169, 175 (App. Div.), certif. denied, 134 N.J. 486 (1993) (same); State v. Halsey, 218 N.J. Super. 149, 158-59 (Law. Div. 1987) (same). In this connection, while the death penalty of co-defendant Koskovich was vacated, his conviction was affirmed. State v. Koskovich, 168 N.J. 448, 474, 541-42 (2001). Moreover, the main defense at trial related to defendant's capacity and lack of intent to commit a purposeful or knowing murder, not that he was wrongly identified as a perpetrator.

Defendant waived his right to be present at the charge conference. We will assume he has a Sixth Amendment right to presence at the conference, but the lengthy conference related to technical issues discussed over several hours. In any event, we addressed the issue on direct appeal and concluded that as the results of the conference and objections were placed on the record, in open court after the lengthy chambers conference, there was in essence a charge conference on the record in open court, and defendant was not prejudiced. See R. 1:8-7; R. 3:22-5.

Finally, we note that PCR is not the substitute for a direct appeal, and is designed to focus on any constitutional deprivation affecting the result. See R. 3:22-2, -3. Defendant argues there were errors during the trial and by appellate counsel. Yet he provides an insufficient basis in his PCR papers to warrant even an evidentiary hearing on that issue. State v. Cummings, 321 N.J. Super. 154, 170 (App Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Conclusions that counsel's decisions did not result from trial strategy and was ineffective do not suffice, particularly in a case like this in which we found the proofs "overwhelming" on the direct appeal. Furthermore, while defendant makes some good technical arguments on the PCR and this appeal, none affects the merits of the case or the proof of his guilt. As the PCR judge said, the proofs as detailed in our opinion on the direct appeal, provided "compelling" and "overwhelming evidence" of guilt and further provides no basis for a finding of ineffective assistance of any counsel under the Strickland test.

The order denying PCR is affirmed.

 

He was acquitted of the purposeful or knowing murder of Giordano and of hindering apprehension.

In our opinion on the direct appeal, we detailed the waivers obtained from the defendant and his parents for the oral statement and the recorded statement subsequently taken. We also noted the Varela testimony.

Defendant's argument on the point comes down to:

Prejudice should have been presumed because of the overwhelming pretrial publicity. Alternatively, despite the trial court's effort to seat an impartial jury, the trial court abused its discretion in not finding that the pretrial publicity was inherently prejudicial requiring a change of venue. These issues should have been ruled on direct appeal. for the court to attribute appellate counsel's deficiency to be a "sensible tactical choice" was a clear misapplication of R. 3:22-2 criteria.

The court's admission that the issue was "viable" on appeal was a tacit endorsement that the defendant established both prongs of the Strickland/Fritz test. Had the issue been raised on direct appeal, the defendant's conviction would have been reversed.

Defendant does not address any specifics relating to seated or deliberating jurors. Rather, he notes that sixty jurors among numerous more interviewed were "qualified." Then he notes that twelve of "the initially qualified jurors had been subsequently excused" and "[t]hereafter, the jury was selected from the qualified jury panel." In this case, although not capital, the jurors were individually sworn and interviewed.

We also note as Judge Critchley stated, the "basic knowledge" some jurors had of the case involved facts of a general nature which were not disputed at the trial, and "there was no . . . inherently or presumptively prejudicial elements such as a prior murder or other serious conviction on the part of Mr. Vreeland."

To the extent we have not addressed any specific issue raised, we believe the matter was sufficiently covered by Judge Critchely or does not warrant comment. See R. 2:11-3(e)(2). See also R. 3:22-4, -5.

As noted, defendant's main defense dealt with culpability.

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A-1697-07T4

July 26, 2010