STATE OF NEW JERSEY v. ERIN FORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4176-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIN FORD, a/k/a

TYHEED BRISON,

Defendant-Appellant.

_______________________________

March 11, 2011

Submitted November 10, 2010 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-12-4770.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans,Special DeputyAttorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Erin Ford, appeals from provisions of an August 28, 2006 order, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant and co-defendant Larkeese Collins were charged with numerous offenses in a nine count indictment, stemming from the armed robbery of Abdul-Aziz Harrison and the shooting of Clifton Andrews. Harrison's multi-colored, leather Avirex jacket was taken in the robbery and Andrews was shot after he mumbled he recognized one of the assailants. Collins was granted use immunity prior to trial and appeared as a witness for the State. The jury convicted defendant on all counts. Defendant's sentencing was delayed until March 23, 2001, because he had fled the jurisdiction. At sentencing, the court imposed an aggregate custodial term of forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence. State v. Ford, No. A-5867-00 (App. Div. Jan. 14, 2003).

Defendant filed his petition for PCR. On April 4, 2006, the PCR judge agreed that two counts of the indictment should be vacated, otherwise he denied relief premised on the ineffective assistance of counsel and alleged due process violations.

Defendant filed this appeal on April 11, 2009, which was accepted, even though it was filed beyond the forty-five day deadline. See State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981). Defendant presents these arguments for our review:

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

THE PROSECUTOR'S MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DENIED HIM DUE PROCESS OF LAW.

In a supplemental pro se submission, defendant asserts:

COUNSEL WAS INEFFECTIVE FOR ELICITING HIGHLY PREJUDICIAL INFORMATION DURING CROSS-EXAMINATION OF A PROSECUTION WITNESS THAT DEFENDANT POSSESSED A NINE MIL[L]IMETER HANDGUN PRIOR TO THE OFFENSE FOR WHICH DEFENDANT WAS CHARGED.

We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his or her 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. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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. A defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

In assessing the first prong, a court must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks omitted). In considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of professional assistance." Ibid. (internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy," ibid. (internal quotation marks omitted), as "complaints '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 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

The Supreme Court has expressed the standard in this way:

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).]

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). In order to prove this, 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, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

We further note a petition for PCR "is not . . . a substitute for appeal from conviction or for motion incident to the proceedings in the trial court . . . ." R. 3:22-3. Therefore, any grounds for relief that could have been asserted in prior proceedings or on direct appeal are barred from consideration. R. 3:22-4(a). Claims of ineffective assistance of counsel are not barred by these rules. See, e.g., State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Preciose, 129 N.J. 451, 459-60 (1992); State v. Guzman, 313 N.J. Super. 363, 374-75 (App. Div.), certif. denied, 156 N.J. 424 (1998).

In his first argument, defendant maintains the court erred in denying his challenges to counsel's competence, as the court concluded the instances cited by defendant were "strategic decisions made after a thorough investigation of the relevant facts and the law." On appeal, defendant asserts counsel: (1) failed to develop the bias of the State's witnesses, Kimberly Williams, Tori Williams and Collins; (2) prompted Tori Williams to state he saw defendant with a gun earlier on the day of the shooting; (3) declined to call Terry Saunders as a witness; and (4) failed to request the dismissal of the indictment for lack of evidence. We examine these assertions.

Kimberly placed defendant at her home on the night of the shooting. She stated he was wearing an Avirex coat, which she did not recognize. Kimberly also overheard defendant tell Tori he had shot someone for a coat. Tori's testimony corroborated Kimberly's as to seeing defendant at Kimberly's house the night of the shooting. Additionally, Tori revealed defendant admitted he had shot Tori's "cousin"1 and said he would not have done so if he had known of their relationship.

On cross-examination, Tori was questioned regarding his failure to immediately notify police, the inconsistencies in his prior statement regarding the incident and his own criminal convictions. Defendant asserts that additional evidence of bias was not pursued.

Defendant claims Kimberly had earlier threatened to harm him and his then girlfriend, Wahkeetah Weems, because Kimberly believed Weems was involved in a liaison with Kimberly's father. Defendant sided with Weems and he asserts the "hatred and anger" of the Williams family was directed toward him at trial.

The defense was based on misidentification and the inconsistencies in the witnesses' physical description of the perpetrator. Specifically, the victims described a perpetrator who was shorter than defendant.

We believe counsel's decision not to interject a somewhat complicated and perhaps confusing story to support a claim of possible bias fits squarely within the realm of sound trial strategy. Moreover, in his PCR petition defendant presents no evidence to corroborate this alleged animus, making it no more than a "bald assertion." See Cummings, supra, 321 N.J. Super. at 170 (stating a defendant must assert those "facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification ).

Defendant also argues trial counsel erred by eliciting testimony from Tori Williams that "opened the door," prompting the prosecution to clarify Tori's comments on re-direct at which time he stated he observed defendant with a gun earlier in the day of the shooting. This issue was also addressed in defendant's pro se submission.

Tori's exchange with counsel on cross-examination dispels this contention. It was as follows:

Q: You never saw [defendant] on the evening of March 13, 1998 with a gun, did you, yes or no?

A: Did I ever see him with a gun?

Q: Yes.

A: No.

. . . .

Q: Did you see [defendant] with a gun at any time in the evening of March 13, 1998?

A: Uh-huh, not in the evening.

Q: See him with a gun at any time that you were out?

A: Yeah.

Q: Can I finish the question, sir? Did you ever see him with a gun at any time after 10:15 on the evening of March 13, 1998?

A: No.

Counsel's intended inquiry was proper and evoked a response helpful to the defense. Unfortunately, Tori assumed he understood the question and answered before it was completed. The trial judge then allowed the State to follow-up with questions that led to the disclosure that defendant had a gun earlier in the day.

Based on our review, we determine counsel's performance does not rise to the level of ineffective assistance. Even if this misstep were found to be deficient, defendant cannot show that this deficiency prejudiced his right to a fair trial. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

Next, defendant argues trial counsel was deficient because he chose to introduce the statement of Terry Sanders attesting to the description of the shooter as "medium height," rather than presenting Saunders' live testimony. The physical dissimilarities between the described perpetrator and defendant, who is 6' 3", was the heart of the defense. Saunders' statement supported the theory of misidentification.

Defendant does not suggest counsel ignored his obligation to investigate whether to call Saunders as a defense witness; he merely challenged counsel's decision to admit Saunders' statement in lieu of his appearance. Defendant argues Sanders' trial appearance "would have had a favorable impact on the jury." Such a conclusory statement is mere speculation. It is unclear whether Saunders would have recognized defendant as the gunman were he to appear in court or whether Saunders' testimony otherwise would have been damaging. There is no evidence to suggest counsel did not weigh the benefits and detriments of Saunders' appearance. Consequently, we agree the decision was strategic and is a determination that is not subject to second-guessing through the lens of hindsight.

Lastly, defendant argues trial counsel erred in failing to file a motion to dismiss the grand jury indictment for lack of evidence. We reject this contention.

"[T]he grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). "The grand jury's role is not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." Id. at 235. "Equally significant is [the grand jury's] responsibility to protect the innocent from unfounded prosecution." Id. at 228 (internal quotations and citations omitted). Once a grand jury has acted, "[a]n indictment should not be dismissed unless it appears clearly and plainly that it is insufficient." State v. Fleischman, 383 N.J. Super. 396, 399 (App. Div. 2006), aff'd, 189 N.J. 539 (2007).

To withstand dismissal, the State must present the grand jury with at least some evidence, "although the quantum of evidence 'need not be great.'" Ibid. (quoting State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997)). The State is not expected to present the entirety of its case to the grand jury, but only sufficient evidence supporting a prima facie case. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984).

Moreover, a subsequent finding of guilt by a properly instructed jury "represents a finding beyond a reasonable doubt that defendant[] w[as] guilty of the offense. Thus, even if the grand jury instructions were erroneous, the error was rendered harmless by the subsequent guilty verdict." State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, sub. nom. Mocco v. N.J., 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).

We conclude the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. The PCR judge properly denied relief.

Defendant's second point on appeal argues he was denied a fair trial due to prosecutorial misconduct suggesting the State made an undisclosed deal with Collins. The prosecutor repudiated defendant's statement as speculation and adamantly denied a deal was struck prior to Collins taking the stand. The PCR judge denied defendant's request for an evidentiary hearing to explore the timing of any plea deal with Collins.

Initially, we note defendant s claim is procedurally barred by Rule 3:22-4 because it could have been, but was not, raised on direct appeal. For the sake of completeness, we briefly address the merits of this claim.

The State is required to disclose to the defense any assistance provided to a witness with respect to the witness' separate criminal prosecution. Such information could significantly enhance the defendant's ability to impeach the witness' credibility. See State v. Knight, 145 N.J. 233, 248 (1996) (concluding information that prosecutor presented at the sentencing on behalf of the State's sole witness, who appeared in the defendant's prosecution, was material and subject to disclosure).

Defendant presents no evidential basis for his claim. Consequently, the PCR judge properly denied it.

The jury was told Collins testified pursuant to a grant of use immunity and the trial judge informed the jury regarding the nature of the grant of immunity prior to Collins' appearance. Additionally, in its instructions, the court told the jury that "the testimony of an immunized witness should be subject to careful scrutiny." Furthermore, the plea deal extended to Collins was made after completion of defendant's trial and by an assistant prosecutor who had not been involved in defendant's trial. A different judge reviewed and accepted Collins' plea and imposed sentence. Nothing suggests that the plea agreement offered to Collins was not the result of the prosecutor's independent analysis of his case.

A

1 Apparently there is no biological relationship between Andrews and Tori Williams, but because of their close friendship, they refer to each other as cousins.