STATE OF NEW JERSEY v. CLARENCE SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2047-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE SCOTT,

Defendant-Appellant.

_______________________________________________

 

Submitted April 26, 2010 - Decided

Before Judges Rodr guez, Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-05-0493.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Clarence Scott appeals from the denial of his first petition for post conviction relief (PCR). We affirm.

In January 2002, following a jury trial, defendant was convicted of the murder of Ronald Wimbush, N.J.S.A. 2C:11-3(a)(1) or (2); first degree robbery of Joseph Robinson, N.J.S.A. 2C:15-1; first degree attempted murder of Police Officer Salvatore Giuliana, N.J.S.A. 2C:11-3; second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); fourth degree resisting arrest, N.J.S.A. 2C:29-2(a); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f). After the verdict was announced, the jury deliberated again and convicted defendant of second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.

Judge Ronald Marmo imposed a life term with a thirty-five year parole disqualifier to be served consecutive to a sentence defendant was already serving; a consecutive twenty-year sentence with a NERA parole disqualifier for the robbery conviction; and a twenty-year consecutive term with a NERA parole disqualifier for the attempted murder conviction. Defendant received lesser, concurrent sentences for the remaining convictions.

These are the relevant facts. On January 27, 1998, at approximately 11:30 p.m., Joseph Robinson and Alphonso Lee were leaving their apartment building in Paterson when they encountered a man with a gun. Robinson "figured it was a robbery so [he] just pulled [his] money out and [he] gave it to [the gunman]." The gunman then realized he actually knew Robinson and handed the money back. The three then walked around the building and encountered "a bunch of guys" who began taunting the gunman, calling him a "fag" and threatening to "f**k him up."

Robinson and Kelwanna Curry (who was standing near Wimbush) both testified that the gunman approached them, grabbed Wimbush, and then shot him as they were fleeing. The fired bullet struck and killed Ronald Wimbush. Curry, Robinson, and another witness, Raysun Belton, all described the shooter as having a distinctive limp or "funny walk", wearing dark clothing, a dark scarf over his face, and a dark hat.

Officer Frank Ferrigno spotted a suspect, later identified as defendant, matching the description of the gunman. He ordered defendant to stop, but defendant began running away. He had a limp. Ferrigno and his partner, Officer Salvatore Giuliana, chased him and caught him as he was attempting to climb over a fence. As they tried to arrest defendant, he began to kick, punch, and bite them. Defendant then reached into his pocket and aimed a gun at Giuliana, through the jacket, as they attempted to handcuff him. According to Ferrigno and Detective Robert Vogt, defendant threatened to "kill all you officers, you mother f***ers, I'll get you."

At trial, the State presented evidence that a shell casing from the scene of the shooting had been fired by the gun defendant pointed at Giuliana. The gun had five bullets lodged in its chamber.

We affirmed on direct appeal. State v. Scott, No. A-1732-03T4 (App. Div. February 2, 2006). Defendant filed a petition for certification. The Supreme Court granted defendant's petition for certification, "limited solely to defendant's sentence on Count 5 (robbery) and Count 8 (attempted murder) . . . and on those issues the matter is summarily remanded to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2005)." State v. Scott, 187 N.J. 488 (2006).

Defendant filed pro se a first PCR petition. PCR counsel submitted a brief. Judge Marmo denied defendant's petition.

On appeal from the denial of his PCR petition, defendant contends:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. Trial Counsel Was Ineffective In Regards To The Charge To The Jury

B. Trial Counsel Failed To File Motions To Challenge The Indictment

C. Trial Counsel Failed To Investigate And Prepare The Case

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PUBLIC WAS EXCLUDED FROM CRITICAL STAGES OF THE TRIAL

POINT V

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT VIII

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

In his pro se supplemental brief, defendant argues:

DEFENDANT IS ENTITLED TO A NEW TRIAL WHEN JURY OBTAINS OR USES EVIDENCE THAT HAS NOT BEEN INTRODUCED DURING TRIAL IF THERE IS "REASONABLE PROBABILITY" THAT EXTRINSICALLY MATERIAL COULD HAVE AFFECTED VERDICT. [SIC]

WHEN JURY IS EXPOSED TO FACTS THAT HAVE NOT BEEN INTRODUCED INTO EVIDENCE, DEFENDANT HAS LOST RIGHTS OF CONFRONTATION, CROSS-EXAMINATION, AND ASSISTANCE OF COUNSEL WITH REGARD TO EXTRANEOUS INFORMATION. U.S.C.A. CONT. AMEND. 6. [SIC]

We reject all of these contentions.

Defendant argues his trial counsel was ineffective for failing: to request a jury instruction on the lesser-included offenses of aggravated and reckless manslaughter; to file a motion challenging the indictment; to fully investigate and prepare for his case; and to provide defendant with certain discovery. We disagree.

To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-part test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). First, defendant must show that counsel "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. Next, a defendant must show that "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. 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, 314 (App. Div. 2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Defendant argues trial counsel should have requested a jury instruction on the lesser-included offenses of aggravated manslaughter and reckless manslaughter. On direct appeal, defendant argued in his supplemental pro se brief:

THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL [UNDER] U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I, PARS. 1, 9 AND 10.

Though this is now argued as an ineffective assistance of counsel claim, this court already decided that the argument that the jury should have been instructed on lesser-included charges "lack[ed] sufficient merit to warrant discussion in a written opinion [pursuant to Rule] 2:11-3(e)(2)." State v. Scott, supra, No. A-1732-03T4 slip op. at 14-15. Therefore, defendant has not established that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Castagna, supra, 187 N.J. at 315.

Defendant next argues that trial counsel was ineffective for failing to file a motion challenging the indictment. During grand jury proceedings, Omar Green's statement to the police was read to the grand jury. In the statement, Green details the shooting and provides characteristics about the gunman that match defendant's description. Defendant contends that "[t]his Omar Green was actually determined to be a fictitious or deceased individual at the time his statement was supposedly taken" and thus counsel should have challenged the indictment because the grand jury was no longer "unbiased."

Defendant's argument is without merit. Defendant has provided no evidence to support his contention that Green was a fictitious or deceased person. Further, Judge Marmo's finding that "Green's testimony is not something that would have made a difference resulting in [defendant] not being charged with these offenses" is supported by the record. The grand jury heard the testimony of four police officers and were read statements by four witnesses, all providing descriptions of the gunman that implicated defendant. The State also presented testimony that defendant was arrested in possession of a gun that had the same type of bullets in its chambers as was used in the shooting. Thus, even if defendant could establish that Green was a fictitious person, defendant has not proven that the result of his proceeding would have been any different if his counsel had moved to challenge the indictment. Castagna, supra, 187 N.J. at 315.

Defendant also argues that his trial counsel failed to fully investigate and prepare for his case, to challenge the state's failure to call Officer Giuliana as a witness, and to provide defendant with ballistics reports. All of these arguments are without sufficient merit to warrant a written opinion. R. 2:11-3(e)(2).

Further, a petitioner "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Where a petitioner alleges counsel failed to investigate the case or call witnesses, the petitioner "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon [the individual's] personal knowledge." Ibid. Here, defendant has provided no evidence to establish what further investigation would have revealed, nor has he alleged what witnesses would have been found and what their testimony might have been. Ultimately, he has not demonstrated how the outcome of the proceeding would have been different if counsel had investigated further. Castagna, supra, 187 N.J. at 315.

Judge Marmo found that defendant did not demonstrate that Officer Giuliana's testimony would have been helpful to defendant. Defendant alleges his "constitutional right to confront and cross-examine this witness" was violated. However, defendant has raised no specific arguments that trigger the Confrontation Clause. See State v. Coder, 198 N.J. 451, 468-69 (2009) (confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination") (citation omitted). Defendant merely alleges that Giuliana did not testify, not that his testimonial hearsay statements were in any way presented to the jury without defendant's ability to confront Giuliana directly.

Next, defendant, citing to State v. Cuccio, 350 N.J. Super. 248 (App. Div.), certif. denied, 174 N.J. 43 (2002), provides a brief argument that his constitutional right to a public trial was violated because one of his friends was allegedly barred from entering the courtroom during his trial. We disagree. Moreover, this argument is barred by Rule 3:22-4.

Both the United States and New Jersey Constitutions provide the accused with the "right to a speedy and public trial." U.S. Const. amend. VI; N.J. CONST. Art. I, 10. This right extends to all pretrial proceedings. State v. Venable, 411 N.J. Super. 458, 463 (App. Div. 2010) (citations omitted). "If a defendant's right to a public trial has been denied, the error is considered to be 'structural' and therefore requires a reversal of a conviction without a showing that the defendant was prejudiced by the denial." Ibid. (citation omitted).

This right, however, is not absolute. Cuccio, supra, 350 N.J. Super. at 260. In a recent decision by this court, State v. Venable, supra, 411 N.J. Super. 458, the trial court asked members of the defendants' family and the victim's family to leave the courtroom during jury selection for security reasons because there were going to be nearly one hundred potential jurors and the courtroom would be too crowded. Id. at 462. We found no constitutional deprivation, adopting a "triviality standard" used by other jurisdictions, which looks at "whether the actions of the court and the effect they had on the conduct of the trial deprived the defendant - - whether otherwise innocent or guilty - - of the protections conferred by the Sixth Amendment." Id. at 464 (citation omitted).

The Venable court distinguished the facts from Cuccio, supra, 350 N.J. Super. 248, where the courtroom was completely closed to all spectators, and noted that "this case did not involve a situation, such as in Cuccio, where a member of the defendant's family was qualified and prepared to assist in his defense if allowed to remain in the courtroom." Venable, supra, 411 N.J. Super. at 466-67. Though the court refrained from expressing an opinion on whether the failure to object to the exclusion of family members constituted a waiver, the court did note the lack of objection. Id. at 467, n.3.

Here, defendant alleges a violation of his constitutional rights to a public trial and attaches a signed certification from his friend, Tameka Jones. In the March 26, 2008 certification, Jones alleges that she attempted "on at least two occasions" to attend defendant's trial and was "informed by a sheriff's officer that the courtroom was closed to the public and [she] was not allowed to enter." According to Jones, "[o]ther persons also trying to enter the courtroom were given the same information and denied entry." Jones did not provide the names of the officer, nor the other individuals allegedly denied entry.

Judge Marmo found that defendant's right to a public trial was not violated. He noted that there was never an order barring the public from the courtroom, that the courtroom was never closed, and "[t]his trial in fact was heavily attended by people who are associated with the defendant and by people who were associated with the victim . . . . there were quite a number of people here every day . . . many of them people who are associated with the defendant." Judge Marmo also explained how defendant engaged in an outburst when the verdict was read and had to be wrestled to the floor and escorted out of the courtroom. There were also a large number of security guards in the courtroom because of "concern that there was some gang involvement here" and defendant and young men in the courtroom were making hand gestures back and forth. Finally, he pointed to a number of portions of the trial transcripts which indicate that members of defendant's family, the victims' family, members of the press, and members of the public were present. Applying the Venable "triviality standard," we find that defendant has not proven that Jones' alleged exclusion was anything but "trivial."

In a series of one-sentence arguments, defendant contends that: there was insufficient evidence to establish robbery; the State knowingly misrepresented the testimony of the State's expert at trial and on appeal; and the trial court failed to timely inform counsel that a deliberating juror had expressed safety concerns. These arguments are all procedurally barred because they could have been raised on direct appeal. R. 3:22-4.

Defendant argues it is "fundamentally unfair" to bar his arguments on procedural grounds. Though Rule 3:22-4 permits review where "enforcement of the bar would result in fundamental injustice," such review should occur "only in exceptional circumstances." State v. Mitchell, 126 N.J. 565, 587 (1992). Further, the "fundamental injustice" exception generally only applies where the defendant's guilt or innocence is involved. State v. McQuaid, 147 N.J. 464, 483 (1991) (quoting State v. Preciose, 129 N.J. 451, 476-77 (1992)).

Here, defendant has made only one-sentence arguments relating to each of these claims. Given the heavy weight of the evidence against him, defendant has not demonstrated that it is fundamentally unjust for this court to consider these arguments procedurally barred pursuant to Rule 3:22-4.

Finally, defendant argues in his pro se supplemental brief that the jury was prejudiced by a note from a juror expressing personal safety concerns that defendant might retaliate against the jury. The record shows defendant is factually mistaken. Defendant alleges the note was introduced prior to the verdict. However, the record clearly indicates that the note given to Judge Marmo before the verdict related to a question about the law concerning felony murder. A second note about a juror's concern for personal safety was indeed given to the judge, but it was after the verdict was announced. Thus, defendant's argument is without sufficient merit to warrant a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

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

(continued)

(continued)

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A-2047-08T4

August 3, 2010