STATE OF NEW JERSEY v. KEVIN MYERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2859-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN MYERS,

Defendant-Appellant.

_______________________________________

December 23, 2010

 

Submitted November 30, 2010 Decided

 

Before Judges Parrillo and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 00-06-0530.

 

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

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Myers appeals from an order entered by the Law Division on September 21, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Cumberland County Indictment No. 00-06-530 with first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a). At the time of trial, the court granted the prosecutor's motion to amend the indictment to charge second-degree reckless manslaughter, contrary to N.J.S.A. 2C:11-4(b). Defendant was tried before a jury, which found him guilty of reckless manslaughter.

The court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) and imposed a term of twenty years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed. We affirmed defendant's conviction but remanded for re-sentencing. State v. Myers, No. A-6726-00 (App. Div. Dec. 5, 2002). Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied defendant's petition. State v. Myers, 176 N.J. 72 (2003).

The trial court re-sentenced defendant and imposed a twenty-year prison sentence, with a ten-year period of parole ineligibility. We remanded the matter to amend the judgment and delete any reference to NERA. State v. Myers, No. A-6426-02 (App. Div. Feb. 5. 2004). Defendant then filed a motion for reconsideration, which we denied by order dated May 6, 2004.

Defendant filed a petition for certification, seeking review of our judgment. The Court denied defendant's petition. State v. Myers, 182 N.J. 150 (2004). Defendant subsequently filed a motion to correct what he alleged was an illegal sentence. The trial court denied the motion on June 7, 2006. Defendant appealed and we affirmed. State v. Myers, No. A-1105-06 (App. Div. June 18, 2008).

Thereafter, defendant filed a pro se petition for PCR in the Law Division. The court assigned counsel to represent defendant and counsel filed a brief arguing that: 1) defendant's 1991 conviction should not have been admitted at trial and counsel's failure to object to its admission constituted the ineffective assistance of counsel; 2) the court failed to properly sanitize defendant's prior convictions in accordance with State v. Brunson, 132 N.J. 377 (1993); 3) the prosecutor violated Rule 3:13-3 and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide trial counsel with the victim's "rap sheet"; 4) the State's expert testified beyond the field of his expertise and implied that defendant was guilty, thereby violating defendant's constitutional rights; 5) defendant should have been allowed to present evidence regarding the victim's prior violent acts as well as his reputation for violence; 6) defendant is entitled to a new trial based on newly discovered evidence; 7) trial counsel's failure to investigate and consider certain potential defenses constitutes the ineffective assistance of counsel; 8) the prosecutor committed misconduct by overcharging defendant and making certain improper comments at trial; 9) appellate counsel was ineffective; 10) the cumulative effect of the aforementioned errors deprived defendant of his right to a fair trial; and 11) counsel's errors were "so bad" that actual prejudice need not be shown.

Defendant filed a pro se memorandum of law, in which he also argued, among other points, that trial counsel denied him a "proper" defense by failing to: investigate certain potential defense witnesses; file a motion seeking the victim's criminal record; allow defendant's wife to testify on his behalf; oppose the imposition of an extended term sentence; make a motion for a new trial; investigate the credibility of the State's expert witness; and argue that the court erred by failing to sanitize his prior convictions.

Defendant additionally argued that the trial court erred by: allowing his prior convictions to be used for impeachment purposes; failing to provide him with the victim's prior conviction; and permitting the State to amend the indictment from aggravated to reckless manslaughter. In a supplemental brief, defendant further argued that the criteria used by the court for the extended term sentence were unconstitutional.

The PCR court considered defendant's PCR petition on September 21, 2009. The court placed its decision on the record, concluding that defendant had failed to establish a basis for PCR. The court entered an order dated September 21, 2009, memorializing its decision. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM AN OVER-CHARGED INDICTMENT; FROM PROSECUTORIAL VINDICTIVENESS IN THE PLEA BARGAINING PROCESS; FROM THE WRONGFUL IMPEACHMENT OF HIS CREDIBILITY BECAUSE OF THE IMPROPER ADMISSION OF REMOTE AND UNSANITIZED CONVICTIONS; AND FROM IMPROPER EXPERT TESTIMONY THAT USURPED THE EXCLUSIVE FACT-FINDING RESPONSIBILITIES OF THE JURY; WAS VIOLATED.

 

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO DR. GROSS' TESTIMONY CONCERNING THE LACK OF ANY INJURIES ON THE DECEASED'S HANDS, AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE LACK OF [SANITIZATION] OF THE DEFENDANT'S CONVICTIONS, RESULTED IN A PRIMA FACIE DEFICIENT PERFORMANCE UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST, AND A PRIMA FACIE SHOWING OF PREJUDICE UNDER THE SECOND PRONG OF THE TEST.

 

POINT III

THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF AND IN THE DEFENDANT'S PRO SE BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF.

 

(A) THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

(B) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE PROSECUTOR FAILED TO PROVIDE FULL DISCOVERY.

 

(C) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BASED ON NEWLY DISCOVERED EVIDENCE.

 

(D) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS IN THIS MATTER.

 

(E) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE ERRORS OF COUNSEL WERE SO BAD THAT ACTUAL PREJUDICE NEED NOT BE SHOWN.

 

(F) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE SENTENCE IMPOSED WAS ILLEGAL.

 

II.

We turn first to defendant's contention that he was denied his right to a fair trial because the State overcharged him; he was the victim of prosecutorial vindictiveness in the plea bargain process; he was wrongfully impeached at trial with the admission of remote and unsanitized prior convictions; and the State's expert testified beyond the scope of his expertise and usurped the jury's fact-finding role.

We note initially that all of these contentions could have been but were not raised in defendant's direct appeal. Thus, as the PCR court found, these contentions are barred by Rule 3:22-4. This procedural bar may, however, be waived if (1) any particular contention "could not reasonably have been raised"; (2) enforcement of the bar "would result in fundamental injustice"; or (3) enforcement of the bar "would be contrary to a new rule of constitutional law" under the State or Federal Constitution. R. 3:22-4(1) to (3). Although defendant has not made a persuasive case for waiver of the procedural bar, we nevertheless will consider his claims on the merits.

A. Alleged Overcharging and Prosecutorial Vindictiveness

As we stated previously, defendant was initially charged with first-degree aggravated manslaughter. At the time of the trial, the State moved to amend the charge to second-degree reckless manslaughter. Defendant argues that the fact that the prosecutor amended the charge after the plea cut-off date raises of presumption of prosecutorial vindictiveness. Defendant further argues that the prosecutor's action represents a due process violation because, had he been permitted to engage in a "fair" plea bargaining process, he would have been able to secure a less severe sentence than he is currently serving.

We find no merit in these arguments. A prosecutor has the discretion to determine who "to prosecute and what charge to bring." State v. Medina, 349 N.J. Super. 108, 127 (App. Div.), certif. denied, 174 N.J. 193 (2002). The prosecutor's discretion in this regard is not without limits. Ibid. "[I]f it can be demonstrated that a prosecutor vindictively charged a defendant, the charges may be dismissed as a violation of the defendant's constitutional rights." State v. Froland, 378 N.J. Super. 20, 39 (App. Div. 2005), rev'd on other grounds, 193 N.J. 186 (2007).

Here, the record fails to support defendant's claim of prosecutorial vindictiveness. Indeed, the fact that the prosecutor in this case downgraded the charge suggests an absence of vindictiveness. Moreover, there is no evidence indicating that defendant was denied the opportunity to engage in a fair plea bargaining process simply because the prosecutor downgraded the charge after the plea cut-off date. Furthermore, there is no indication that the State would have offered, or the court would have imposed, a shorter sentence if defendant had pled guilty to second-degree reckless manslaughter, rather than being convicted of that offense at trial.

B. Testimony of the State's Expert Witness

Next, defendant argues that the testimony of the State's expert, Dr. Elliott M. Gross (Gross), went beyond the scope of his expertise and usurped the jury's fact-finding role. We disagree.

At the trial, the State presented evidence establishing that on the evening of April 24, 2000, Alan Graham (Graham) and Charles Penn Rivera (Rivera) were drinking beer at the home of their friend. During the evening, they made several trips to a nearby liquor store to purchase more beer. On the third trip to the store, defendant approached Rivera and indicated that he wanted to speak to him.

Graham testified that he heard defendant tell Rivera that he had heard that Rivera was "trying to talk to" defendant's "girl." Defendant struck Rivera twice and Rivera fell to the ground, hitting his head. Defendant hit Rivera again and ran across the street. Rivera was taken to a hospital, where he was later pronounced dead.

At the trial, defendant claimed that he struck Rivera in self defense. Gross, who was at the time the medical examiner for Cape May and Cumberland Counties, testified that he performed the autopsy on Rivera's body. Defendant argues that the following testimony was objectionable:

Q. Did you note any injuries to [Rivera's] hands?

 

A. There were no injuries.

 

Q. Would that have any significance to you?

 

A. Not in and of itself. Whether it's significant to the investigation of the death or the circumstances of the death, yes.

 

Q. And what significance would it have?

 

A. Well, if there was a history, as there was in this case, of an altercation the absence of injuries while they are not while it can't be . . . totally excluded, the . . . absence of them would suggest the absence of contact.

 

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704. Even so, the court may exclude such testimony pursuant to N.J.R.E. 403 if the probative value of the evidence is substantially outweighed by the risk that its admission will unduly prejudice the defendant.

Thus, an expert witness may offer an opinion that is "'expressed in terms of ultimate issues of fact.'" State v. Summers, 176 N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 81 (1989)). However, the expert witness may not opine that the defendant is guilty of the charged offense. Id. at 315 (citing Odom, supra, 116 N.J. at 80).

Here, Gross's testimony was relevant to whether defendant acted in self-defense when he struck Rivera. Moreover, the testimony was not unduly prejudicial because, although Gross said that the absence of injuries to Rivera's hands suggested a lack of contact, defendant did not say that Rivera struck him. Furthermore, Gross's testimony was not objectionable because he did not render an opinion on defendant's guilt.

C. Admission of Defendant's Prior Convictions

Defendant additionally argues that the trial court erred by allowing all of his prior convictions to be used to impeach his credibility. He contends that the court also erred by failing to require the sanitization of all of those convictions. Neither argument has merit.

The record shows that defendant was convicted in 1981 of burglary; in 1984 of burglary and larceny; in 1991 of receiving stolen property; and in 1991 of possession of a weapon and conspiracy to commit assault. At trial, defendant's attorney argued that the convictions could not be used to impeach defendant because they were too remote. He also argued that, if admitted, the convictions should be sanitized.

The State agreed to refer to the 1991 conviction for conspiracy to commit assault as one involving conspiracy. The court ruled that all of the convictions could be used for impeachment purposes because they showed a continuing disregard for the law. The conviction for conspiracy to commit assault was sanitized, in accordance with the State's agreement.

In our view, defendant's counsel's handling of this issue was not deficient. As noted, counsel objected to the use of any of defendant's prior convictions for impeachment purposes. The court properly rejected his objection. A prior conviction of a crime must be admitted unless excluded by the court "as remote or for other causes." N.J.R.E. 609. "The key to exclusion is remoteness." State v. Sands, 76 N.J. 127, 144 (1978).

In addressing the issue of remoteness, "[t]he trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. Furthermore,

[w]hen a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

 

[Id. at 145.]

 

We are convinced that the trial court correctly applied these principles and did not abuse its discretion by allowing the admission of all of defendant's criminal convictions for impeachment purposes. We are additionally convinced that the court did not err by refusing to order the sanitization of any conviction other than the 1991 conviction for conspiracy to commit assault.

Sanitization limits the prosecutor to mentioning the date and degree of a defendant's prior conviction, but sanitization is only required for offenses that are similar to those upon which the defendant is being tried. Brunson, supra, 132 N.J. at 392. Defendant's conviction for conspiracy to commit assault was the only conviction for an offense similar to the reckless manslaughter charges at issue in this case.

III.

We turn to defendant's contention that the PCR court erred by failing to provide relief because the assistant prosecutor allegedly did not provide the defense with a copy of Rivera's criminal record.

Rule 3:13-3 requires the prosecutor to provide the defendant with certain discovery materials. In addition, Brady holds that suppression "of evidence favorable to an accused" violates a defendant's right to due process when "the evidence is material" regardless of whether the information was withheld in good or bad faith. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218.

Here, the PCR court found that correspondence between the assistant prosecutor and defense counsel established that the State had provided the defense with a copy of Rivera's criminal record. Furthermore, the court noted that, even if defense counsel had not received that information, defendant failed to show that it would have been favorable to the defense.

It appears that Rivera had been involved in certain drug-related offenses, and the only offenses suggesting that Rivera had a propensity for violence were those involving the obstruction of the administration of the law, contrary to N.J.S.A. 2C:29-1(a). The PCR court found that the jury's verdict indicated that it did not believe defendant's claim that he struck Rivera in self-defense. The court further found defendant had not established that evidence of Rivera's prior convictions would have convinced the jury to come to a different conclusion. The record fully supports the court's findings.

IV.

Defendant also argues that the PCR court erred by failing to grant relief on the basis of newly discovered evidence. According to defendant, after the trial in this matter, evidence came to light indicating that Gross made erroneous findings in two other cases and was removed from all positions as a medical examiner in this State.

Newly discovered evidence will only warrant a new trial when the evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct 2693, 147 L. Ed. 2d 964 (2000). Material evidence is evidence that "goes directly to the heart of" the case. State v. Henries, 306 N.J. Super. 512, 530 (App. Div. 1997).

Here, the PCR court found that the newly discovered evidence regarding Gross was not material to any issue in this case. As we stated previously, Gross testified at trial as to the cause of Rivera's death and stated that he did not observe any injuries on Rivera's hands. Those facts were not in dispute. The PCR court aptly noted that, even if Gross had been cross-examined about errors he made in other matters, such questions would not have undermined his testimony in this case. We are therefore satisfied that the PCR court correctly determined that defendant was not entitled to a new trial on the basis of the newly discovered evidence regarding Gross.

V.

Defendant further argues that he was denied the effective assistance of trial and appellate counsel. These arguments are without merit.

To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for purposes of resolving claims raised under the Sixth Amendment to the United States Constitution. Our Supreme Court has adopted the Strickland test for use in the resolution of ineffective-assistance-of-counsel claims raised under New Jersey's Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

To meet the Strickland test, a defendant first must show that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant contends that his trial attorney erred because he failed to object to Gross's testimony regarding the lack of injuries on Rivera's hands and the use of defendant's prior convictions. However, as we previously explained, Gross's testimony was proper. Furthermore, defense counsel objected to the use of any of defendant's prior convictions for impeachment purposes and the court correctly overruled the objection. In addition, defense counsel sought sanitization of all of the prior convictions and the trial court correctly required sanitization only with respect to the one conviction that was similar in nature to the offense charge here.

Defendant also contends that his trial attorney erred because he did not request a copy of Rivera's criminal record and failed to make a motion based on the State's alleged improper concealment of evidence. The PCR court, however, found that the State did provide defense counsel with a copy of Rivera's criminal record. As we have determined, the court's finding is supported by the record.

Furthermore, as the PCR court noted in its decision, Rivera's "rap" sheet showed certain drug-related incidents but no violent crimes. Although defendant asserted that his counsel could have argued that Rivera's involvement with drugs suggested a "propensity for violence," the PCR court found that this was too speculative an argument to support a claim for ineffective assistance of counsel. We agree.

In addition, defendant maintains that his trial attorney erred because he failed to argue against imposition of an extended term sentence. However, counsel's failure to raise such an argument does not represent the ineffective assistance of counsel because any such argument would have been unavailing. The record establishes that defendant qualified for extended term sentencing under N.J.S.A. 2C:35-7.

Defendant additionally argues that his trial attorney was ineffective because he failed to investigate potential witnesses and did not permit his wife to testify on his behalf. However, as the PCR court noted in its decision, defendant did not present any certifications or affidavits indicating what the proposed witnesses would have said had they been called to testify at trial. Defendant's attorney also was not deficient in failing to call defendant's wife to testify at trial because she did not witness the incident and her testimony would not have had any bearing on the outcome of this case.

We have considered all of defendant's other contentions and find them to be "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.