STATE OF NEW JERSEY v. CHARLES MERRITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5883-06T45883-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES MERRITT,

Defendant-Appellant.

_______________________________________

 

Submitted November 30, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-07-0794.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Charles Merritt, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of four counts of first degree attempted murder, N.J.S.A. 2C:11-37, 2C:5-2, 2C:2-6; seven counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), 2C:2-6; and seven counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4), 2C:2-6. Judge Thomas P. Kelly, who presided over the trial, imposed concurrent terms aggregating fifty years with a twenty-year parole disqualifier. We affirmed on direct appeal. State v. Merritt, No. A-2648-98T4 (App. Div. Sept. 28, 2000), certif. denied, 167 N.J. 89 (2001).

The facts are fully set forth in our opinion on direct appeal. On February 21, 1996, a fight occurred among defendant, his brother William Merritt, and Besham Henderson. The dispute concerned a debt that Besham's friend, Tia Womack, owed to William Merritt and some damage that William Merritt allegedly caused to Tia's car. At approximately 1:00 a.m. on February 23, 1996, Henderson's car was discovered with broken windows and slashed tires. Later, Henderson saw a group of about ten people walking towards his house. He alerted everyone inside. Shots were fired as the group approached and bullets struck the brick facade of the house. Matthew Campbell, a neighbor, recognized defendant and his brother William as the shooters. Defendant shot a handgun and his brother fired a shotgun.

The police responded to the scene. Shortly thereafter, Trenton Patrolman Charles N. Nemes saw a grey Honda matching the description of the suspects' getaway vehicle and stopped it. With the aid of a flashlight, he noticed a handgun inside a hat on a seat. He directed the driver to exit, frisked him, and "found a shotgun shell in his front right pocket." The driver was defendant's brother William, who after being advised of his rights, told a police detective that the incident was "to get back at or to retaliate against the individuals" at the Henderson home for damaging the car of defendant's girlfriend. William admitted to being involved in the fight that had occurred the day before between him, defendant, and Henderson. He also admitted firing the shotgun. He implicated Shawn Paul as the one who shot the revolver and named other members of the group involved in the incident. He did not include defendant.

As stated above, the jury convicted defendant. After the direct appeal was decided and the conviction became final, defendant filed pro se a PCR petition. Designated counsel filed a brief and defendant filed two pro se briefs. In the various briefs, defendant argued that he was denied the effective assistance of trial counsel because counsel failed: to cross-examine Campbell to demonstrate bias and to attack Campbell's credibility; to object to Campbell's trial testimony (not provided in discovery) that he fell on the porch steps while fleeing from the gunshots and thus was given time to pause and see defendant; to move to suppress statements made by co-defendant William Merritt and a bullet fragment found in the porch step up to a month after the shooting; and to present a viable defense during summation.

Defendant also challenged the applicability of aggravating factors in his sentencing, claimed ineffective assistance of appellate counsel, and alleged prosecutorial misconduct. Finally, defendant argued that the doctrine of fundamental fairness required the court to vacate defendant's conviction because Campbell allegedly confessed in 2004 that he had lied during the trial about seeing defendant as one of the shooters.

In a written opinion dated November 28, 2006, Judge Kelly denied the PCR petition. Citing Strickland v. Washington, 46 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), he found that even "[a]summing arguendo that counsel's errors were so egregious as to violate defendant's Sixth Amendment rights . . . there has been no showing that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Specifically, on the issue of whether trial counsel was ineffective in cross-examining witnesses, including Campbell, Judge Kelly reviewed the trial transcripts and found that the witnesses were "questioned at length" and that "it is clear that trial counsel did not render ineffective representation that prejudiced defendant." As to the claim that trial counsel failed to move to suppress co-defendant's statement or the bullet fragment evidence, Judge Kelly found that "it is unlikely that the outcome of the trial would be any different" if the suppression motions had been filed. The opinion did not specifically address defendant's claim that trial counsel failed to present a "cogent, cohesive defense to the jury" during summation. However, inferentially, the judge found that trial counsel's performance was adequate.

In response to defendant's fundamental fairness argument regarding Campbell's alleged admission that he lied under oath, Judge Kelly denied defendant a new trial because "defendant's claims did not rise to the level needed to warrant such relief."

Defendant moved to amend the petition pursuant to Rule 1:7-4(b). Judge Kelly denied defendant's motion.

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

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT'S [PCR] PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, BECAUSE DEFENDANT'S TRIAL ATTORNEY DID NOT PERFORM THE BASIC TASK OF DISCREDITING THE PROSECUTION'S KEY WITNESS BY FAILING TO CONDUCT A FOCUSED CROSS-EXAMINATION OF SEVERAL WITNESSES; FAILING TO OBJECT TO IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE; AND FAILING TO PRESENT A COHESIVE SUMMATION.

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT AN EVIDENTIARY HEARING BASED ON THE NEWLY DISCOVERED EVIDENCE THAT MATTHEW CAMPBELL RECANTED HIS IDENTIFICATION OF DEFENDANT BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE NEW EVIDENCE WAS MATERIAL, NOT DISCOVERABLE BY REASONABLE DILIGENCE BEFORE TRIAL, AND WOULD HAVE CHANGED THE JURY'S VERDICT IF THERE WAS A NEW TRIAL.

Defendant filed a pro se supplemental brief contending:

THE PCR COURT RULING SHOULD BE REVERSED BECAUSE TRIAL COUNSEL FAILED TO OBJECT TO OBVIOUSLY INFLAMMATORY AND IRRELEVANT TESTIMONY (SUPPLEMENT TO COUNSEL'S BRIEF, POINT-B).

THE PCR JUDGE COMMITTED CONSTITUTIONAL ERROR BY FAILURE TO CONDUCT A HEARING TO RESOLVE FACTUAL ISSUES THAT VIOLATE BOTH THE FEDERAL AND STATE DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW.

THE PCR COURT COMMITTED CONSTITUTIONAL ERROR BY FAILING TO RULE ON APPELLANT'S FIRST PRO SE SUPPLEMENT BRIEF, AND PARTIALLY RULING ON THE SECOND PRO SE AMENDED SUPPLEMENTAL BRIEF.

PCR COUNSEL VIOLATED THE SPIRIT AND AUTHORITY IN RUE AND WEBSTER (Not Raised Below).

It is well-settled that in all criminal prosecutions, a defendant is entitled to effective assistance of counsel. Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2063, 80 L. Ed 2d. at 694; State v. Fritz, 105 N.J. 42, 51 (1987). This right exists "to protect the fundamental right to a fair trial." Strickland, supra, 466 U.S. at 684, 104 S. Ct. at 2052, 80 L. Ed 2d. at 691. However, "[m]erely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 145 L. Ed. 2d 964 (2000).

To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-part test set out in Strickland and adopted by the New Jersey Supreme Court in Fritz. First, defendant must show that counsel actually "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. 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 (2006) (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

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 315 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). To satisfy the prima facie case of ineffective assistance of counsel, the error committed "must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Judged against this standard, we conclude that defendant has not established a prima facie case of ineffective assistance of counsel. We will address each claim individually.

During trial, Detective David Maldonado testified that Henderson did not know the name of the individuals who had beaten him up the night before the shooting. However, Maldonado's police report indicates that Henderson specifically identified William and Charles Merritt as the culprits. Defendant claims his trial attorney should have highlighted this contradiction during cross-examination because a jury could have a concluded that Henderson passed this information to his best friend, Campbell, and that Campbell then falsely identified defendant as the shooter as a means of revenge.

The record reveals that trial counsel did conduct a lengthy cross-examination of Maldonado and pointed out numerous discrepancies between his police report and his trial testimony. Even if it were an error not to expose this particular discrepancy, it is mere conjecture that the jury would have automatically reached the conclusion that because Henderson knew his attackers, he relayed that information to Campbell. Therefore, defendant has not shown that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Castagna, supra, 187 N.J. at 315 (quoting Strickland, supra, 466 U.S. at 695, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant also argues that his trial counsel was ineffective for failing to cross-examine Campbell with respect to alleged inconsistencies between Campbell's courtroom testimony and a formal statement he had given to police. This contention is belied by the record. We agree with Judge Kelly that the cross-examination of Tia Womack revealed a "sufficient amount of information regarding . . . the relationships between the parties." Further, Campbell's potential bias was exposed when he conceded a six-year friendship with Henderson. These findings are supported by the record. State v. Johnson, 42 N.J. 146, 158-62 (1964); State v. Locurto, 157 N.J. 463, 469-71 (1999).

Defendant argues in a supplemental brief that trial counsel was ineffective for failing to object to evidence that was irrelevant but prejudicial, specifically: a bullet fragment that had been removed from the exterior of the Henderson house and testimony from a ballistics expert that the fragment could not be linked to the gun found in William Merritt's car. Defendant maintains that counsel should have moved to exclude the evidence pursuant to N.J.R.E. 403, which provides "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.

We disagree that counsel was ineffective. There is an abundance of evidence in the record to establish that numerous shots had been fired at the victims and at the Henderson house. Campbell, Henderson, and Henderson's brother all testified as such. Therefore, as Judge Kelly correctly concluded, defendant has not shown that even if the evidence had been suppressed "the result of the proceeding would have been different." Castagna, supra, 187 N.J. at 315 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant next claims that trial counsel failed during summation to backup arguments with facts to highlight the discrepancies in Campbell's testimony. We disagree. Trial counsel pointed out inaccuracies between the police reports and officers' testimony, questioned whether Henderson had given Campbell information to identify defendant as one of the shooters, and suggested that by the time the police arrived, "the assumption was already in the victims' minds who the responsible parties were." From our careful review, we conclude that counsel's summation "falls within the wide range of reasonable professional assistance." Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).

Defendant also argues that the judge should have granted defendant an evidentiary hearing (or a new trial) because new evidence exists that suggests Campbell has recanted his identification of defendant as one of the shooters. Defendant produced two certifications in support of his argument. The first certification is by defendant's father, who claims that "Campbell informed me that he was untruthful in his testimony during my son's trial. Campbell said he did not really see my son Charles at the shooting incident . . . [he] told me he wanted to right this wrong that he had done." Defendant's father certifies he then took Campbell to the law offices of Thomas Cataldo. Campbell allegedly repeated the story again, with the attorney taking notes and warning Campbell that he could face criminal charges.

The second certification is by Karen J. Andrews, the attorney who represented defendant during PCR. She certified that she contacted Cataldo by phone and he indicated to her that Campbell "acknowledged in his presence that he had testified falsely in this matter insofar as he identified [defendant] as having been present at the scene of the shooting." According to Andrews, Cataldo refused to sign a certification because of a dispute over fees for the work he did on defendant's behalf. Andrews's attempt to locate Campbell were unsuccessful.

The State argues that only a certification by Campbell himself would qualify as "new evidence" that could give rise to a new trial. State v. Ways, 180 N.J. 171, 188 (2004) ("Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication[.]") We agree.

"[R]ecantation testimony is generally considered exceedingly unreliable" and "the sincerity of a recantation is to be viewed with 'extreme suspicion.'" State v. Hogan, 144 N.J. 216, 239 (1996) (alteration in original) (citation omitted). The party presenting such testimony has the burden of proving that the recantation "is probably true and the trial testimony probably false." State v. Carter, 69 N.J. 420, 427 (1976) (citing State v. Baldwin, 47 N.J. 379, 400, cert. den., 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966)).

Here, defendant has not met the burden to prove that the recantation is "probably true." Ibid. All he has produced is a hearsay certification by an interested party and a double-hearsay certification by his attorney. This does not alleviate our "extreme suspicion." Hogan, supra, 144 N.J. at 239.

In his supplemental pro se brief, defendant argues that his due process rights were violated because Judge Kelly denied his motion to amend his PCR petition. This argument is moot because Judge Kelly nonetheless ruled on the merits of defendant's amended petition.

Defendant also argues that Judge Kelly failed to rule on all the issues in his pro se PCR briefs. In his opinion, Judge Kelly's procedural history does not reference defendant's August 5, 2005 pro se brief. Our review, however, indicates that Judge Kelly's decision addresses all of defendant's supplemental arguments. Defendant's argument is therefore without merit.

Finally, defendant cites State v. Rue, 175 N.J. 1 (2002), and State v. Webster, 187 N.J. 254 (2005), and contends that his PCR counsel violated the ethical obligation to advance all of his claims regardless of whether or not counsel considered them to be meritless. We find nothing in the record that indicates PCR counsel in any way undermined defendant's arguments. Judge Kelly found there was no prosecutorial misconduct, so the issue was indeed considered even if it was not incorporated into counsel's brief.

Defendant also claims PCR counsel failed to incorporate information about Campbell's alleged recantation into the brief, but that is clearly not the case. Counsel's PCR brief addressed the alleged Campbell recantation in Point V, under a "fundamental fairness" heading. Therefore, defendant's arguments are without merit.

 
Affirmed.

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A-5883-06T4

April 6, 2010