STATE OF NEW JERSEY v. MICHAEL P. ZENTNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0952-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL P. ZENTNER,

Defendant-Appellant.

________________________________________________________________

March 9, 2011

Submitted February 15, 2011 - Decided

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No.08-07-1095.

Christopher C. Hoffner, attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor,of counsel; Jamie L. Schron, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Michael P. Zentner was convicted of second-degree eluding, N.J.S.A. 2C:29-2b; as well as a motor vehicle violation of reckless driving, N.J.S.A. 39:4-96, both arising out of a high speed car chase on Route 70 in Manchester Township. The trial judge sentenced defendant to a four-year term of imprisonment on the eluding charge together with mandated fines, penalties and license suspension. Thereafter, defendant was released to the Intensive Supervision Program. He appeals, and we affirm.

These are the relevant facts adduced at trial. On May 13, 2008, while patrolling Route 70 traveling west, Manchester Township Police Sergeant John Williams observed a gray 2003 Dodge Durango with Illinois plates proceeding eastbound. The Sergeant glanced at his radar to determine the car's speed, and when he looked up he had to swerve because the Durango had crossed into his lane. The Sergeant made a U-turn to pursue the vehicle. The Durango accelerated, and the Sergeant activated his red and blue emergency LED lights. As he did so, the Sergeant saw the Durango's rear lights extinguish.

The Durango continued through the red traffic signal at the major intersection of 70 and County Road 539. As Sergeant Williams approached the same intersection, he activated his patrol car's siren, decelerated and came to a near stop. The Durango was now out of sight.

Sergeant Williams proceeded through the intersection, turned off his emergency lights and continued his pursuit. He observed the Durango at the intersection of Becharsville Road and Manchester Boulevard. As the Durango passed through the intersection, the green traffic light illuminated the vehicle. From his position behind the Durango and with the aid of the traffic light, Sergeant Williams observed that the Durango's lights were still off.

Sergeant Williams accelerated, reactivated his emergency lights and radioed other officers stationed in the east and west ends of Manchester Township for assistance. He observed the Durango, still with lights off, pass two eastbound vehicles, the second of which was a white pickup truck. As the Durango passed the white pickup truck, still traveling east, it entered the westbound lane and continued in that lane for approximately a quarter mile. Sergeant Williams accelerated again to over 120 miles per hour to try catch up to the Durango. When he was close enough to pace the Durango, he estimated that the vehicle was traveling at a speed of approximately 100 to 105 miles per hour. The posted speed limited was 55 miles per hour.

After a three minute chase on six miles of roadway, the Durango came to a stop at mile marker 43, just before entering Lakehurst Township. Two Manchester Township patrol cars with active emergency lights were stopped at mile marker 43. Sergeant Williams and two additional patrol cars stopped behind the Durango. Sergeant Williams approached the driver, defendant, and engaged in a "felony stop." Sergeant Williams asked defendant, "Why didn't you just stop?" Defendant stared.

Defendant was removed from the vehicle and brought to its rear to perform tests. He did not show any signs of intoxication either in the roadway or at headquarters. His speech was normal, and the odor of alcohol was not observed. At trial, defendant testified that he did not know Sergeant Williams was behind him, and he did not know he turned his lights off. Defendant admitted driving through a red traffic light and speeding.

On appeal, defendant asserts that his Sixth Amendment rights were violated as his counsel was ineffective. Specifically, he claims that counsel failed to identify inconsistent statements in Sergeant Williams trial testimony and his report, his counsel "vouched" for the credibility of the officers, counsel failed to investigate and counsel failed to employ a trail strategy. He further claims, substantively, that the judge erred by permitting commentary on defendant's post-arrest silence, the prosecutor improperly vouched for the Sergeant's credibility, and the prosecutor improperly commented to the jury in summation as to the substantive offense of eluding.

We have carefully considered the arguments of counsel and conclude that they are without merit. R. 2:11-3(e)(E). We add the following comments.

Defendant's arguments regarding ineffective assistance of counsel are raised here on the direct appeal. As a general rule, we will not entertain ineffective assistance of counsel claims on direct appeal especially where the claims are dependant on allegations and evidence outside of the trial record. State v. Echols, 199 N.J. 344, 357 (2009) (citing State v. Preciose, 129 N.J. 451, 460 (1992)).

The general rule is particularly relevant here where defendant is critical of counsel's cross-examination, specifically his failure to exploit the inconsistencies between Sergeant Williams' trial testimony and his earlier report, yet his report is not part of the record on this appeal. We decline, on the direct appeal, to address this issue in a vacuum without the benefit of a full record presented, in the first instance, to the Law Division.

However, we are able to address and dispose of additional claims of ineffective assistance of counsel. Before doing so, we set forth the relevant standards that apply to our consideration of the issue.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-prong test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153-54 (1991).

In assessing the first prong, a court must determine whether counsel's conduct "fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). As noted, in considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of reasonable professional assistance." Ibid. (citation and internal quotation marks omitted). Critically important here, defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (citation and internal quotation marks omitted). As the Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted in original).]

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). To prove prejudice, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-07 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

We alluded to the issue of trial strategy and the exercise of judgment by counsel during the trial. These issues are particularly relevant here. Defendant criticizes counsel's vouching for or commenting on Sergeant Williams' credibility. He claims that the following language prejudiced his defense when counsel said of the Sergeant:

John Williams is a good guy, he's an excellent police officer and we are lucky to have him in our county and I don't think he testified inaccurately one bit. His testimony was that he saw a vehicle that was, looked like it was going a little too fast, and [defendant] concedes he was going too fast . . . .

Counsel then went on to say:

[Defendant] isn't on trial here in Superior Court for speeding or for running a red light or for driving unsafely, that's not what he's on trial here for. What he's on trial here [sic] is that he knowingly attempted to elude the police. . . . The question here, folks, is did [defendant] try to flee from the police officers?

When read in the context of the entire summation, counsel's strategy was clear and that was to focus on the offense and characterize the Sergeant's version as speeding rather than eluding. While the jury did not accept this theory, given the evidence against defendant, that does not negate the fact that counsel had adopted a strategy to establish a defense. It may not have proven to be an effective defense, but it was not ineffective assistance of counsel.

We likewise conclude that with the exception of the issue of cross-examination, which should be addressed in a petition for post-conviction relief, there is no basis for concluding that defendant has met his burden under either prong of Strickland.

We reach the same result with respect to defendant's argument that the prosecutor improperly commented on defendant's post-arrest silence. Again, context is critical. Defendant raised the issue during his direct testimony when he commented that in response to a question from the Sergeant, he responded that he "wasn't running." On rebuttal, the Sergeant was asked if he posed the question about running, and he answered in the affirmative. And when asked for the response, the Sergeant indicated that "[defendant] was stoic. . . ." He just didn't answer. He just stared."

These circumstances are distinguishable from those in State v. Muhammad, 182 N.J. 551, 569 (2005), where the Court proscribed improper comments on a defendant's post-arrest silence. The issue here arose in response and rebuttal to defendant's introduction of evidence as to the comments he made in response to police inquiries. See State v. Elkwisni, 190 N.J. 169, 178 (2007), (noting that "once a defendant testifies about statements he made to the police at or near the time of his arrest, the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made"); see also id. at 178. See also State v. Tucker, 190 N.J. 183, 189 (2007) ("[I]t is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her own statements that were freely given."). Here defendant claimed at trial that he was not silent but responsive. The State cannot be faulted for making appropriate inquiry to challenge the credibility of defendant. We discern no prosecutorial misconduct under the facts presented here.

Finally, while we find no misconduct regarding the inquiries to defendant as to Sergeant Williams' credibility, we caution that such inquiry invokes a fine line that while not crossed here, places a conviction in jeopardy. We find no error under the facts presented on this appeal.

Affirmed.