STATE OF NEW JERSEY v. KERMAN COLEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3082-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KERMAN COLEMAN,

Defendant-Appellant.

___________________________

December 14, 2012

 

Submitted October 3, 2012 - Decided

 

Before Judges Grall and Accurso.

 

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment

No. 05-10-1402.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Kerman Coleman appeals the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of trial and appellate counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden on the petition, we affirm.

A jury convicted defendant of first-degree robbery in violation of N.J.S.A. 2C:15-1(a)1, third-degree theft in violation of N.J.S.A. 2C:20-3a, third-degree receiving stolen property in violation of N.J.S.A. 2C:20-7a, two counts of third-degree aggravated assault on a law enforcement officer in violation of N.J.S.A. 2C:12-1b(5), and third-degree resisting arrest in violation of N.J.S.A. 2C:29-2a(2) and a(3)(a). He was sentenced to an aggregate term of nineteen years with an eighty-five percent period of parole ineligibility, and five years of parole supervision. We affirmed defendant's conviction and sentence on direct appeal, State v. Coleman, No. A-2099-06 (App. Div. Oct. 23, 2008), and the Supreme Court denied certification, 197 N.J. 476 (2009).

Defendant's arrest and conviction arose out of his efforts to steal a car from the parking lot of a restaurant with the help of two colleagues. A police officer was dispatched to the scene to respond to an auto theft in progress. When the officer arrived in a marked police vehicle, he saw a Lexus emerge from the rear of the parking lot. We described the unfolding events in our opinion on defendant's direct appeal.

The Lexus stopped briefly, turned its headlights off, and then accelerated toward [the officer's] vehicle at a speed of approximately 30 miles per hour, striking the patrol vehicle on the front driver's side. After hitting two other parked vehicles, the Lexus stopped. Due to the impact, the left side of [the] patrol vehicle was crushed, pinning [the officer] in the vehicle and bruising his ribs and left shoulder. . . .

 

As [the officer] struggled to get out of his patrol vehicle, he shouted commands at defendant to stop and freeze. When [the officer] was finally able to force open the door of his patrol vehicle, defendant climbed out the window of the Lexus and attempted to flee. [The officer] was able to grab the back of defendant's shirt, but after a brief struggle, defendant broke free.

 

As defendant and [co-defendant] Daniels ran toward Roosevelt Avenue, an Infiniti operated by [another] co-defendant [ ] drove past [the officer's] patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of defendant and Daniels. As [their co-defendant] drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, defendant and Daniels were partially hanging out of the vehicle.

 

The Infiniti then accelerated, traveling at a speed of thirty to thirty-five miles per hour toward [another officer's] vehicle. Like [the first officer, the second officer] arrived at the scene after hearing the police dispatch. [The second officer] testified that he attempted to avoid a collision with the Infiniti, but the Infiniti struck his right front bumper.

The impact caused [the second officer] to sustain a separated shoulder and torn ligaments. The Infiniti kept driving and disappeared into a parking lot behind some businesses.

 

[Coleman, supra, slip op. at 3-5.]

 

Following an extended foot chase by officers from several surrounding communities, defendant was apprehended along with his two co-defendants.

In his amended petition for PCR, defendant claimed that his trial counsel was ineffective for failing to adequately investigate the collision of the Lexus with the patrol car and for not retaining an expert witness to testify about the accident. Defendant also claimed his appellate counsel was ineffective because he failed to raise an issue regarding the verdict sheet and the prosecutor's alleged misconduct at trial. Following argument, the motion judge denied the petition in its entirety.

On this appeal defendant raises the following arguments:

POINT I:

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. Trial counsel failed to consult or

retain a crash expert.

 

B. Trial counsel failed to provide

effective assistance during sentencing.

 

C. Trial counsel failed to object to

the State's summation.

 

D. Trial counsel failed to consult with

defendant.

 

POINT II:

 

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

A. Appellate counsel failed to challenge

the verdict sheet.

 

B. Appellate counsel failed to challenge

the State's summation.

 

C. Appellate counsel failed to confer

with defendant and failed to raise

defendant's issues.

 

POINT III:

 

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL.

 

POINT IV:

 

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

 

POINT V:

 

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

In his pro se supplemental brief defendant raises the following arguments:

POINT I:

 

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

A. Appellate counsel failed to confer

with defendant and failed to raise

defendant's issues.

 

POINT II:

 

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL.

 

A. Judge's charge to the jury.

 

B. [United States] v. Webster, 442 F.3d

1065, 1066-67 (8th Cir. 2006)

(instruction allowing jury to infer

consciousness of guilt from

defendant's flight from police

created permissive presumption).

 

To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record.

Defendant's chief claim on this appeal is that an accident reconstruction expert would have been able to undermine the police officer's testimony that defendant intentionally rammed the patrol car and thus establish that defendant was guilty only of third-degree car theft instead of first-degree robbery. Defendant presented this theory to the jury and his counsel cross-examined the state's witnesses about the Lexus having stopped prior to driving into the patrol car, the officer's slight and not visible injuries, and the failure of the airbags in either car to deploy, despite the officer's testimony that the Lexus was traveling at thirty miles per hour on impact. Counsel also used photographs of the damage to the vehicles to show that defendant did not intentionally ram the officer but was merely trying to get around the patrol car, which was blocking the exit to the parking lot, in his attempt to flee the police.

Defendant has not shown how his counsel's choice to bring those points to the attention of the jury through cross-examination of the State's witnesses, instead of through a defense expert, was objectively unreasonable. Even assuming arguendo that this was a strategic miscalculation by trial counsel, it would not result in the reversal of defendant's conviction unless he could show that it deprived him of a fair trial. State v. Buonadonna, 122 N.J. 22, 42 (1991). Defense counsel's decisions as to trial strategy are "virtually unchallengeable" if made following reasonable investigation. State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695)).

Defendant's trial counsel had obviously investigated the circumstances of the crash and his cross examination of the state's witnesses demonstrates his knowledge of those facts. Counsel made a deliberate, strategic choice to challenge the State's proof that defendant had used the car as a battering ram by undermining the testimony of the State's witnesses on cross-examination rather than through a defense expert. That decision is entitled to deference, State v. Arthur, 184 N.J. 307, 320-21 (2005), and thus "virtually unchallengeable" on this appeal. Savage, supra, 120 N.J. at 617-18. Further, defendant has not proffered any certification from an accident reconstruction expert to demonstrate what more could have been accomplished through the expert's testimony. Defendant's assertions as to what an expert might have testified are thus only speculation and insufficient to prove that counsel's failure to call such expert materially contributed to his conviction. Fritz, supra, 105 N.J. at 58.

We likewise reject defendant's arguments that his counsel was ineffective at sentencing, by failing to object to the prosecutor's closing, and by failing to consult with him. Defendant contends that his counsel should have argued in mitigation that defendant was remorseful and that his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8), and that his character and attitude make him unlikely to reoffend, N.J.S.A. 2C:44-1b(9). The sentencing judge, however, found defendant truly remorseful and yet rejected both those mitigating factors on the basis of defendant's extensive prior record, which consisted of five adjudications of delinquency and four criminal convictions, all of which occurred prior to his twenty-fourth birthday. We upheld the judge's identification and balancing of the aggravating and mitigating factors on direct appeal. We also note that defendant was extended-term eligible and that defense counsel was successful in arguing against imposition of an extended term.

Defendant also claims that he was prejudiced by his counsel's failure to object to the prosecution's vouching for its witnesses and comments on the law. We agree that the prosecutor's references to the officers "professionalism, honesty and integrity" and their being "the best and finest" exhibiting "restraint and courage" and giving testimony that was "completely and utterly honest" were highly inappropriate. State v. Walden, 370 N.J. Super. 549, 560-61 (App. Div.), certif. denied, 182 N.J. 148 (2004). Nevertheless, in light of the overwhelming evidence of defendant's guilt, we cannot find that the prosecutor's attempt to bolster the credibility of the testifying officers "substantially prejudice[d] the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Similarly, we reject that any comments the prosecutor may have made about the law could be considered harmful in light of the trial judge's thorough and accurate instructions to the jury. 1 See State v. Hipplewith, 33 N.J. 300, 315 (1960). Accordingly, defendant cannot demonstrate any prejudice flowing from his counsel's failure to object to the prosecutor's summation under the second prong of Strickland.

Defendant further contends that his trial counsel was ineffective because he failed to consult with him about the selection of jurors and the retention of an accident reconstruction expert. We have already determined that counsel's tactical decision to cross examine the state's witnesses on the accident, instead of presenting a defense expert, was neither objectively unreasonable nor prejudicial. Defendant does not specify what, if anything, he wished to convey to his counsel during jury selection or how counsel's failure to consult with him affected the outcome of the trial. Accordingly, we deem this claim to be without merit.

Defendant also claims ineffective assistance of appellate counsel by counsel's failure to object to the verdict sheet as unduly confusing, to challenge the prosecutor's summation, and to consult with defendant and raise issues he thought viable. We reject each of these arguments. Our review of the verdict sheet convinces us that it was clear and not in the least confusing. We have already addressed defendant's arguments regarding summation. Even had counsel raised this issue on appeal, it would not have resulted in the reversal of his conviction. As for failing to consult and omitting issues defendant wished included in the appeal, it is well-established that appellate counsel need not advance every argument a defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308, 3312-14, 77 L. Ed. 2d 987, 992-95 (1983). Defendant has failed to demonstrate that any argument he claims omitted was stronger than those counsel chose to advance. Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 765-66, 145 L. Ed. 2d 756, 782 (2000).

Upon review of each of defendant's alleged points of error, we reject his contention that any error, either singly or in combination, could be deemed to have rendered his trial unfair. State v. Orecchio, 16 N.J. 125, 129 (1954). No further discussion of any particular claim is warranted. R. 2:11-3(e)(2). Finally, we agree with the trial judge that no evidentiary hearing on defendant's PCR petition was required as defendant failed to establish a prima facie case of ineffective

assistance of counsel under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

1 In his pro se supplemental brief, defendant contends that the judge's charge on flight constituted error. The judge's instruction on flight was in accord with the model charge and entirely proper. State v. Mann, 132 N.J. 410, 420-21 (1993). Moreover, as defendant contended that he did not intentionally ram the police car but only damaged it in his attempt to flee the officer, he can hardly argue that he was prejudiced by the charge.