STATE OF NEW JERSEY v. STEPHON DOWNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4143-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHON DOWNER,

Defendant-Appellant.

________________________________

March 21, 2011

 

Submitted February 14, 2011 - Decided

 

Before Judges Lisa and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-03-0813.

 

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

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, who was convicted in 2002 of felony murder and other offenses, appeals the trial court's denial of his petition for post-conviction relief ("PCR") after an evidentiary hearing. For the reasons that follow, we affirm.

We incorporate by reference the underlying facts set forth inour opinionon directappeal. SeeState v. Downer, No. A-6626-01 (Aug. 6), certif. denied,178 N.J.251 (2003). In essence, the felony murder and the other related offenses of which defendant was convicted arose out of a drug transaction that went awry.

On March 6, 1997, Carlos Ruiz, Edelmiro Robles and two other individuals went to a housing project in Camden to purchase marijuana. At the behest of defendant, who Robles stated was also present, Ruiz went inside one of the buildings while Robles remained outside. According to Robles, defendant then placed a handgun to Robles' head. He began going through his pockets to rob him, but Robles had nothing of value. During this face-to-face encounter, Robles had the opportunity to observe defendant clearly. Defendant then entered the building and went up the stairs, where Ruiz had gone. Robles heard Ruiz utter an exclamation of surprise. Robles then heard a gunshot.

Upon hearing the gunshot, Robles ran from the building to his two friends who had been waiting in the car. According to Robles, he saw defendant come out of the building, holding the handgun and looking directly at him. Robles and his two friends then drove to the police station, believing that Ruiz had been shot. When they returned to the building with the police, Ruiz was found lying dead in the stairwell. Ruiz had been shot once in the back with a .38 caliber bullet. Robles later identified defendant, from a photographic array, as the perpetrator.

Defendant was indicted for the murder of Ruiz and also for other crimes arising out of the events that transpired in the housing project. At defendant's ensuing trial, the State relied, in part, upon Robles' identification of defendant from the photo array, and also his in-court identification. The State also produced two witnesses, with whom defendant had shared a lock-down cell during an unrelated arrest. Defendant did not testify at trial and he presented no witnesses.

The jury convicted defendant of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser-included offense of murder; first-degree felony murder, N.J.S.A. 2C:11-3a(3); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b.

Defendant was sentenced to an aggregate term of life imprisonment plus fifteen years, with a thirty-five-year parole disqualifier. The reckless manslaughter conviction and the conviction for the armed robbery of Ruiz were merged with the felony murder conviction. Defendant was sentenced on the felony murder conviction to life imprisonment with a thirty-year parole disqualifier. On the conviction for the other armed robbery committed against Robles, defendant was sentenced to fifteen years imprisonment, with a five-year parole disqualifier, consecutive to the felony murder sentence. Finally, the gun possession convictions were merged and defendant was sentenced to seven years of imprisonment, with a three-year parole disqualifier, concurrent with the other sentences.

In affirming defendant's conviction on direct appeal, we rejected his argument that the prosecutor's summation had improperly alluded to defendant's right not to incriminate himself. We also rejected defendant's claim that his sentence was manifestly excessive. However, we agreed with, and the State conceded to, defendant's contention that the weapons offense should have been merged with either count for which the weapon was unlawfully possessed. Accordingly, we remanded the matter to have the judgment of conviction amended to reflect the required merger of the weapons offense. The Supreme Court denied defendant's subsequent petition for certification. Downer, supra, 178 N.J. at 251.

On August 13, 2004, defendant filed a PCR application with the trial court, contending that his trial counsel was constitutionally ineffective in numerous respects. In support of his petition, defendant submitted a lengthy pro se brief, with appendices. The petition was subsequently amplified by designated PCR counsel.

Following several days of evidentiary hearings, at which defendant, his trial counsel, and two other witnesses, Deshaun Milton and Douglas Scott, testified, the PCR judge issued an oral decision on March 12, 2008, denying defendant's petition. A written order memorializing that decision was entered on March 17, 2008. Defendant then filed the instant appeal.

Through his designated counsel on appeal, defendant contends that the trial court should reverse the denial of defendant's PCR petition. In particular, defendant maintains that his trial counsel should have endeavored more aggressively to contest Robles' identification of defendant, should have pursued an alibi defense through the testimony of other persons who would claim that defendant was not at the scene, should have obtained hospital and telephone records, and should have conducted a more thorough investigation. Defendant also argues that his trial counsel did not consult with him sufficiently before trial, and that his trial counsel should have retained a fingerprint expert and should have more effectively cross-examined the State's witnesses. Defendant further asserts that trial counsel gave him incorrect advice during the plea bargaining phase of the case and failed to tell him that he faced a sentence of thirty-years to life for felony murder. He maintains that a remand and further evidentiary hearings in the trial court are necessary to explore other alleged deficiencies in trial counsel's performance.

In addition, defendant submitted a supplemental pro se brief and appendix, raising the following points, many of which overlap with the arguments being raised by his present attorney:

POINT I

 

TRIAL COUNSEL WAS INEFFECTIVE IN THE CROSS EXAMINATION OF STATE WITNESSES, TRAINOR AND CAMPBELL, FOR REPEATEDLY ELICITING PREJUDICIAL TESTIMONY AND FOR THE FAILURE TO IMPEACH THEIR INCONSISTENT TESTIMONIES.

 

POINT II

 

TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO PREPARE FOR DEFENSE AND FAMILIARIZE HIMSELF WITH DEFENDANT'S CASE AND RELEVANT FACTS.

 

POINT III

 

TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO CHALLENGE PROSECUTOR'S REFERENCES TO DEFENDANT'S UNRELATED ARREST AS INADMISSIBLE AND FOR HIS FAILURE TO IMPEACH STATE WITNESS CAMPBELL ON HIS ABILITY TO HAVE READ ABOUT DEFENDANT'S UNRELATED ARREST IN THE NEWSPAPER.

 

POINT IV

 

TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO CONSULT A FINGERPRINT EXPERT AND REVEALING IGNORANCE OF THE SUBJECT.

 

POINT V

 

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH THE CREDIBILITY OF STATE WITNESS DETECTIVE KELLEGAN REGARDING HIS GRAND JURY TESTIMONY, AND THE INACCURACY OF THE STORIES HE AFFIRMED AS TRUE.

 

POINT VI

 

THE STATE ENGAGED IN PROSECUTION MISCONDUCT WHEN IT INTRODUCED OTHER CRIMES EVIDENCE IN VIOLATION OF THE N.J.R.E. 403. & 404 (b). AND IN FAILING TO CORRECT THE STATE WITNESS FRANCIS CAMPBELL'S FALSE TESTIMONY THAT HE COULD NOT HAVE READ ABOUT DEFENDANT'S ARREST IN THE NEWSPAPER, THUS RENDERING DEFENDANT'S TRIAL UNFAIR IN VIOLATION OF U.S.C.A. 14TH AMEND.

 

POINT VII

 

TRIAL COURT ERRED IN ALLOWING STATE TO INTRODUCE OTHER CRIMES EVIDENCE INADMISSIBLE UNDER N.J.R.E. 403. & 404 (b). IN FAILING TO SANITIZE EVIDENCE, AND IN FAILING TO INSTRUCT THE JURY ON THE LIMITED USE OF THIS EVIDENCE.

 

POINT VIII

 

THE CUMULATIVE EFFECTS OF TRIAL ERRORS AND TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER U.S.C.A. CONST. AMEND. VI, XIV; N.J. CONST. ART.I, PAR. 10.

We consider all of these issues through the prism of well-settled legal principles governing claims of the ineffective assistance of counsel. 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-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id., 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

"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 quilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). "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.'" Castagna, supra, 187 N.J. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

Applying these standards here, we conclude that the trial court properly dismissed defendant's PCR application, and that no further evidentiary hearings are warranted. Viewing the record as a whole, we concur with the PCR judge's overall determination that defendant was not deprived of the effective assistance of his trial counsel.

Trial counsel's testimony at the PCR hearing explained, in depth, his steps in investigating the case, his preparation for trial, and the tactical choices that he made during the course of the trial itself. The PCR judge specifically found trial counsel's testimony to be credible. By contrast, the PCR judge had doubts about the credibility of Milton and Scott because of inconsistencies in their testimony. We owe deference to these credibility findings on appeal. State v. Locurto, 157 N.J. 463, 474 (1999).

The PCR judge found the strategic choices of trial counsel to be reasonable, noting that counsel endeavored to:

maximize the inconsistencies with the [S]tate's case and tr[ied] to minimize anything further [by way of problems] that he would have created had he called [to the witness stand] the Miltons of the world, the Scotts of the world, going in depth more fully with regard to the alibi issue, going in depth more fully with regard to the [potential] fingerprinting [of the gun].

 

The PCR judge further noted that trial counsel had been successful in persuading the jury to acquit defendant of murder on the first count of the indictment and to instead find him guilty of the lesser-included offense of reckless manslaughter.1

As the PCR judge concluded:

To summarize, I am satisfied that there was effective assistance of counsel. I am satisfied that there was nothing done in his trial strategy that I find a concern of mine. I don't find anything that in my mind would have changed the jury's verdict with regard to this matter to warrant a granting of the defendant's application. I candidly do not find it.

 

Having considered the points now raised on appeal in light of these findings, which are supported both by the record and by the law, we affirm the trial court's denial of defendant's PCR application, substantially for the reasons expressed in Judge Louis Hornstine's oral opinion of March 12, 2008. Only a few brief observations are in order.

With respect to defendant's claim that his trial attorney should have called Milton and Scott as defense witnesses, there is ample support in the record to justify trial counsel's strategic decision not to present their testimony. Each of those two witnesses would have been readily impeached by the prosecutor if they had testified.

At the PCR hearing, Milton, who lived next-door to defendant, claimed that he had driven past defendant on the night of the shooting, approximately one minute before he heard the gunshot. Milton contended that he saw defendant standing in a parking lot located approximately four to five minutes walking distance from the scene of the shooting. As defendant's trial counsel explained, he had serious ethical and tactical concerns about Milton's proposed alibi testimony, as it conflicted with Milton's original statement to the police that he had not seen defendant at all that night and his later statement that defendant had been in a car with him on the night of the shooting. Moreover, Milton's proposed testimony contradicted defendant's own alibi account, which indicated that he had stayed at the house of another person, Tawana Williams, that night due to an ankle injury.

Given these discrepancies, trial counsel "did not believe as [a matter of] trial strategy, it would have been wise . . . to have this witness [Milton] testify [in] court." In addition, Milton had five prior felony convictions, which the State might have used to impeach his credibility pursuant to N.J.R.E. 609. The prosecutor also would have undoubtedly argued to the jury that Milton was biased in favor of defendant, a close friend and neighbor.

Trial counsel's decision not to call Scott to the witness stand was similarly well founded. Scott was a close friend of defendant's brother. He, too, had a lengthy prior criminal record specifically eighteen prior convictions that would have exposed him to impeachment.

According to Scott's testimony at the PCR hearing, he identified another person as the shooter, allegedly having seen that individual that evening, seeking to purchase marijuana in the vicinity. Scott did not provide this information when he was interviewed by the police. In fact, Scott had previously refused to identify the shooter to the police unless the State would agree to mitigate his exposure to other criminal charges that were pending against him. In addition, the accounts of Scott and Milton did not reconcile with one another in several respects.

For these many reasons, we sustain the PCR judge's negative assessment of the credibility of Milton and Scott at the PCR hearing, and the judge's ultimate finding that trial counsel acted reasonably in eschewing their testimony at trial.

Defendant likewise had not demonstrated that his trial counsel acted deficiently by failing to obtain defendant's hospital records. He alleges that those records would corroborate that he had an ankle injury around the time of the shooting, and thereby buttress his alibi claim that he was at another person's house at the time of the shooting. Defendant does not furnish us with a copy of those records, and their probative value would have been attenuated, at best. We agree with the PCR judge that this issue does not rise to the level of a Strickland violation.

As to the issue of inadequate consultation, trial counsel attested that he did, in fact, explain the consequences of rejecting the State's plea offer to defendant before trial. That testimony negates defendant's claim of inadequate consultation, particularly when recognizing that the PCR judge found trial counsel's testimony to be credible on the whole.

With regard to defendant's claim that his trial counsel was deficient in not consulting a fingerprint expert to test the gun used in the shooting, we agree with the PCR judge that this particular strategic choice also was justifiable. As the PCR judge aptly pointed out, such a fingerprint analysis could have "open[ed] the Pandora's box" to unfavorable information, including a potential finding that defendant's own fingerprints were on the weapon. Instead of having the gun tested by a fingerprint expert, trial counsel sensibly argued in his summation that the State's own investigation was deficient in not presenting to the jury any evidence of defendant's fingerprints on the gun. Nor was trial counsel deficient in not probing into this issue on cross-examination of the State's witnesses without knowing whether they would respond in a manner unfavorable to defendant. In this regard, the PCR judge aptly alluded to the wise "commandment" of the late Professor Irving Younger, who admonished trial lawyers to refrain from asking questions on cross-examination as to which they do not know how the witness will answer. See "The Ten Commandments of Cross-Examination" in Irving Younger, Trial Techniques 51 (R. Oliphant ed. 1978).

The balance of the issues raised on appeal, including those set forth in defendant's supplemental pro se brief, lack sufficient merit to warrant comment. R. 2:11-3(e)(2). To the extent that some of those points were raised below but were not explicitly discussed in the PCR judge's opinion, we discern no necessity to remand the case for further consideration by the trial court or for any additional evidentiary hearings, as none of those issues create a prima facie claim for PCR that would warrant additional proceedings or hearings. See State v. Preciose, 129 N.J. 451, 459 (1992).

Affirmed.

1 By operation of law, defendant was guilty of felony murder because the jury did find that the homicide was committed in the course of a felony.