STATE OF NEW JERSEY v. SHAMSID-DEEN KNIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0807-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v

SHAMSID-DEEN KNIGHT,

Defendant-Appellant.

_____________________________

March 2, 2011

Submitted February 14, 2011 - Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment Nos. 02-07-2656 and 01-03-1436.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Monique Moyse,

Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(Gary A. Thomas, Special Deputy Attorney

General/Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shamsid-Deen Knight appeals from the denial of his petition for post-conviction relief (PCR). The underlying convictions are for crimes charged in separate indictments. On the first indictment, a jury found defendant guilty of murder, N.J.S.A. 2C:11-3a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a; and eluding, N.J.S.A. 2C:29-2. On the second, defendant pled guilty to two counts of first-degree robbery, three counts of second-degree robbery and one count of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

On direct appeals, which were consolidated, we concluded that statements about the homicide and robberies that defendant gave to the police after his arrest at the scene of the homicide were involuntary; accordingly, we reversed his convictions. State v. Knight, 369 N.J. Super. 424, 441, 443-44 (App. Div. 2004). The Supreme Court, however, reversed those determinations and remanded for us to consider other issues that defendant had raised and we did not address. 183 N.J. 449, 467-70, 472 (2005).

On remand from the Supreme Court, we affirmed the convictions but remanded for correction of errors in the sentences reflected on both judgments of conviction. State v. Knight, Nos. A-2993-02 and A-4099-02 (App. Div. Aug. 7, 2006) (slip op. at 19) (Knight II). The Supreme Court then denied defendant's petition for certification. 189 N.J. 426 (2007).

Defendant subsequently filed this application for PCR, and his attorney filed a supporting brief. Defendant contended he was denied effective assistance of counsel at his trial and on his guilty plea. He claimed that trial counsel failed to: effectively cross-examine the State's witnesses; object to the trial judge's participation; present an intoxication defense; present expert testimony; submit DNA evidence; and object to the prosecutor's summation. He contended that plea counsel failed to review discovery relevant to the robbery charges and explain the consequences of his guilty plea. Defendant did not support his arguments or his request for an evidentiary hearing on the petition with any certification or with documents referencing facts outside the record. Thus, the trial judge was given no new information tending to support an intoxication defense, establish the value of DNA evidence or expert opinion, or demonstrate the inadequacy or inaccuracy of information and advice given by plea counsel.

The facts of the homicide case and the several robberies are recited in the initial decision of this court and the Supreme Court's decision. We summarize those facts here.

The victim of the homicide was a cab driver, and defendant was his passenger. In the early morning hours, the taxi, a Navigator SUV, stopped outside the home of Kim Smith. Defendant got out, stood in front of the home, and called for Smith's son to come outside. Smith saw and heard defendant; she recognized him, was frightened by his behavior and called 911. Defendant got back in the cab, and the police arrived as the driver pulled out of the driveway.

The police followed the taxi until the driver pulled over. At that point, the officers stopped and approached on foot. They heard a shot fired from the passenger side and returned fire. After another shot was fired inside the cab, it was driven away, swerving as it traveled and gun shots being fired from it. When the taxi stopped, the police found the driver slumped over the steering wheel, defendant halfway between the passenger and driver's sides, and a gun and clothes scattered nearby. The only evidence suggesting defendant's conduct was attributable to intoxication were his "rapping and rocking" and "wired" appearance at police headquarters and his explanation for having removed his clothes he was hot because he had smoked a "couple of blunts." He claimed the shooting was accidental.

Defendant's robberies all involved banks. In each case defendant handed the teller a note demanding money; in one note he also threatened to use a shotgun. Defendant pled guilty to the robberies after the jury in the homicide case found him guilty of murder. The plea was entered pursuant to an agreement with the State. In return for defendant's guilty plea, the State promised to recommend an aggregate sentence less than the minimum term for murder and fully concurrent with defendant's sentence on the murder conviction. At the plea hearing, defendant's attorney elicited the factual basis for each count and noted that defendant was pleading guilty with the understanding that if his murder conviction were reversed on appeal, defendant would seek to vacate this plea.1 Defendant acknowledged the truthfulness of statements he made about the robberies after the police showed him a surveillance video and photos that depicted him.

The judge who presided over defendant's homicide trial also considered defendant's petition for post-conviction relief. With respect to defendant's guilty plea, the judge reviewed the transcript of that proceeding prior to the hearing. The judge heard argument on defendant's petition, and on April 7, 2008 he issued a written decision setting forth his reasons for denying relief without an evidentiary hearing.

Defendant raises these issues on appeal:

I. MR. KNIGHT IS ENTITLED TO A HEARING ON

HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR (A) FAILING TO PURSUE AN INTOXICATION DEFENSE AND PRESENT AN EXPERT WITNESS AT TRIAL ON THE MURDER INDICTMENT, AND (B) FAILING TO REVIEW DISCOVERY BEFORE HIS PLEA AND EXPLAIN THE TERMS AND RAMIFICATIONS OF HIS PLEA ON THE ROBBERY INDICTMENT.

II. THE CLAIMS IN MR. KNIGHT'S PETITIONS

AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006). [Those claims are set-forth above at page 3].

In order to obtain relief based on the performance of either attorney, defendant had to show deficient performance by "identify[ing] specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)); see State v. Allegro, 193 N.J. 352, 366 (2008) (restating the two-pronged standard). In the context of representation related to a guilty plea, prejudice is established by showing "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

It is well-established that a plenary hearing on a claim of ineffective assistance is required only when the facts viewed in the light most favorable to defendant demonstrate a reasonable likelihood of success under Strickland's two-pronged test and testimony is needed to resolve a factual dispute material to the attorney's performance or the resulting prejudice. State v. Marshall, 148 N.J. 89, 158 (1997); State v. Preciose, 129 N.J. 451, 462-63 (1992). "The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief." Marshall, supra, 148 N.J. at 158. A defendant cannot establish a prima facie case through allegations that are "vague, conclusory, or speculative." Ibid.

This court's decision in State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999) addresses the adequacy of the showing needed to establish a prima facie case under the Strickland standard. Cummings, in our view, is dispositive of defendant's claims of deficiency based on his trial attorney's cross-examination and failure to present expert testimony, DNA evidence or an intoxication defense. In Cummings, we rejected a claim based on counsel's failure to pursue an alibi defense because defendant produced no evidence that his lawyer could have used to raise a reasonable doubt about defendant's presence at the scene of the crime. Ibid.

In this case, defendant has presented nothing that would permit a court to conclude that the State's DNA evidence was flawed, that there was evidence of intoxication adequate to assert that defense, or that expert testimony of any sort would have been helpful to the defense in any way. Nothing in the trial record suggests that a different line of cross-examination or an attack of the DNA evidence would have been productive. The only evidence of intoxication is wholly inadequate to permit a finding that a reasonably competent counsel would have pursued that defense in the face of evidence demonstrating defendant's efforts to dispose of evidence of the crime while he eluded the police. See State v. Cameron, 104 N.J. 42, 53-57 (1986) (discussing the standard and noting that even where behavior is bizarre, the question is whether the defendant's conduct indicates capacity to act purposively). Without anything outside that record tending to demonstrate that trial counsel could have done more, defendant has not shown a reasonable probability of success in establishing deficient performance and prejudice. Accordingly, the trial court did not err in denying an evidentiary hearing or relief on any of these grounds.

Defendant's claims based on his trial lawyer's failure to object to the judge's participation and the prosecutor's summation are resolved by our decision on direct appeal. We found that the trial judge did not "exceed the bounds of his discretion" and found nothing "unduly inflammatory or prejudicial to defendant" in the prosecutor's summation. Knight II, Nos. A-2993-02 and A-4099-02, supra, slip op. at 12, 14. Moreover, we determined that the conduct about which defendant complained was not capable of changing the outcome of the trial or leading the jury to a result it would not otherwise have reached. Ibid. In short, those determinations preclude relief on the ground that defense counsel's failure to object amounts to prejudicial incompetence. The trial judge rightly denied relief.

We turn to consider whether the trial court erred in denying relief based on the representation defendant received in connection with his guilty plea. As noted above, to obtain relief based on plea counsel's performance, defendant had to demonstrate a reasonable probability that, but for counsel's errors, he would have rejected the plea offer and gone to trial. Here too, we note that defendant did not submit a certification pointing to anything plea counsel did or said that led him to accept a plea offer he otherwise would have rejected. Instead, he relies on the fact that the consultation was brief.

The terms of the plea agreement are too favorable to suggest that defendant would have rejected the offer. In return for his guilty plea to several robberies, the State recommended and defendant received a sentence that will be served before the sentence he received for murder. Furthermore, the transcript of the plea hearing undermines defendant's late complaint about plea counsel's preparation and consultation; defendant expressly acknowledged his satisfaction with his lawyer's performance at the plea hearing.

Defendant's final argument is vague. Noting that the Supreme Court declined to consider his challenge to his confession to the bank robberies because he had pled guilty, defendant argues that his guilty plea was based on the connection between his confession and murder conviction rather than an understanding of the discovery and terms and ramifications of the plea. The Supreme Court also noted, however, that defendant acknowledged the truth of the statement he gave the police when he pled guilty. In the absence of any specific assertions about what the lawyer said, we find that his argument lacks sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

1 The colloquy indicates some confusion on defense counsel's part about the applicability of the No Early Release Act, N.J.S.A. 2C:43-7.2. As noted above, however, defendant's sentences were corrected.