STATE OF NEW JERSEY v. VINCENT HAWKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1093-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT HAWKINS,

Defendant-Appellant.

____________________________________

May 14, 2013

Submitted March 19, 2013 Decided

Before Judges St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0146.

Joseph E. Krakora, Public Defender, attorney forappellant (KarenA. Lodeserto, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Vincent Hawkins appeals from the order denying his petition for post-conviction relief (PCR) challenging his convictions for burglary and theft. First, defendant claims that his trial counsel was ineffective for not using the victim's testimony that he was an illegal immigrant in cross-examining the victim. Second, defendant claims that his trial counsel was ineffective in not raising various objections, and that appellate counsel was ineffective. The PCR judge denied the first claim after an evidential hearing, and found the remaining claims insufficient to require a hearing. We affirm.

I.

On direct appeal, we outlined the facts proved at trial:

The victim, Pedro Santiago, testified at trial that at approximately 11:00 a.m. on September 23, 2005, he was in bed in his apartment in Bridgeton when he heard his apartment door open. He went into the living room to find defendant stuffing his belongings into a bag. As Santiago approached, defendant, who was wearing white and grey socks on his hands, dropped the bag and pulled out an approximately three to four inch knife. The two men struggled, and the struggle continued into the street. When defendant heard someone say that the police had been called, he redoubled his efforts and fled. When his shirt came off, he was freed from Santiago's grip and ran.

When the dispatch went out regarding the incident, police who were gathered at an unrelated investigation site nearby almost immediately observed a man who matched defendant's description running toward them. Among others, Patrolman Deena Glover-Bertolini and Lieutenant Mark Ott pursued defendant in their separate patrol cars. Glover-Bertolini pulled up in front of defendant, who upon seeing her, said "Oh, s--t," and ran the other way. Lieutenant Ott also pulled up alongside defendant, got out of his car and drew his weapon, at which time defendant stopped running and dropped to his knees. Once arrested, police found a pocket knife, a screwdriver, and some socks in defendant's pockets.

Patrolman John Sloboda observed fresh pry marks on Santiago's door, the door latch and the knob. There were paint chips on the floor, directly below the door frame.

One of the State's witnesses was the victim's landlord, who observed the struggle between Santiago and defendant. She testified that defendant shouted out, "Does anybody here speak English?" and, "Can't you tell them I just wanted to feed my family?" She was the person who triggered defendant's flight by saying that she was calling police.

At trial, defendant testified that he was in Santiago's apartment solely to collect $80 he had loaned Santiago the prior day to buy drugs. He said that the victim would not pay him back in cash, but agreed that he could take some of the victim's belongings in lieu of the money. When he attempted to place items of value in the bag, however, Santiago assaulted him. Defendant claimed that the screwdriver actually belonged to Santiago, who threw it at him, striking the door and thereby causing the pry marks and chipping the paint. Defendant also claimed that he had been wearing two pairs of socks and had to remove one pair while running from the scene because his shoes were falling off. Defendant acknowledged three sanitized convictions on direct and was briefly examined about them on cross-examination as well.

[State v. Hawkins, No. A-0782-07 (App. Div. July 1, 2009) (slip op. at 2-4).]

Defendant also claimed that he had asked the landlord to call the police, and that he ran away to call the police, but he was afraid when he saw the first police car and kept going until the officer from the second police car drew his weapon.

A grand jury issued a five-count indictment, charging defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1b; third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d; second-degree burglary, N.J.S.A. 2C:18-2a(1); fourth-degree criminal trespass, N.J.S.A. 2C:18-3a; and second-degree robbery, N.J.S.A. 2C:15-1a(1)-(2). The criminal trespass count was dismissed before trial.

Defendant was tried in August 2006 before Judge Timothy G. Farrell. The jury acquitted defendant of aggravated assault, possession of a weapon for unlawful purposes, and robbery. The jury convicted defendant only of burglary and a lesser included charge of third-degree theft, N.J.S.A. 2C:20-2b(2)(d). At sentencing, the theft conviction merged into the burglary conviction. The trial judge sentenced defendant to twenty years in prison.

Defendant appealed, challenging his conviction and sentence. We affirmed. State v. Hawkins, No. A-0782-07 (App. Div. July 1, 2009) (Hawkins). The Supreme Court denied certification. State v. Hawkins, 201 N.J. 145 (2009).

Defendant filed a PCR petition. Judge Benjamin C. Telsey entered an order denying defendant's PCR petition on February 24, 2011. Defendant appeals, raising the following two points for our consideration:

POINT I

THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE VICTIM'S IMMIGRATION STATUS CLAIM.

POINT II

THE POST CONVICTION RELIEF COURT ERRED IN DENYING A HEARING ON ALL OTHER CLAIMS.

DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE APPROPRIATE OBJECTIONS DURING SUMMATIONS AND . . . THEREFORE SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.

DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE ADDITIONAL OBJECTIONS AND THEREFORE SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.

DEFENDANT MADE A PRIMA FACIE SHOWING THAT APPELLATE COUNSEL WAS INEFFECTIVE AND SHOULD BE ENTITLED TO AN EVIDENIARY HEARING.

Defendant must establish ineffective assistance of counsel under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009). "Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. Defendant must prove both prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

To establish the first prong, a defendant must show deficient performance by counsel "so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 349-50. There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted).

To satisfy the second prong, a defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 367 (2008) (citations omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (citation omitted).

II.

The victim, Pedro Santiago, testified that he spoke no English, was Mexican, was not a U.S. citizen, and was here "illegal[ly]." Defendant argues that trial counsel was ineffective because during her cross-examination, she did not ask Santiago if he "created this story of defendant breaking and entering his home without permission because if he told police that the dispute was over money he owed for drugs, he would run the risk of being charged and possibly deported."1

The PCR judge granted an evidentiary hearing on this claim, and heard the testimony of trial counsel. "Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). We reject defendant's argument for substantially the reasons set forth in Judge Telsey's oral opinion after the February 23, 2011 evidentiary hearing. We add the following observations.

The United States Constitution and the New Jersey Constitution guarantee a criminal defendant the right to confront those who testify against him. U.S. Const. amend. VI; N.J. Const. art. I, 10. "The opportunity to cross-examine a witness is at the very core of the right of confrontation." State v. Cabbell, 207 N.J. 311, 328 (2011). "[A] paramount purpose of cross-examination is the impeachment of the credibility of the witness." State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002). "[A] defendant has a right to explore evidence tending to show that the State may have a 'hold' of some kind over a witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001) (officer-witness was under investigation for official misconduct); State v. Holmes, 290 N.J. Super. 302, 312-14 (App. Div. 1996) (prosecution witnesses faced potential loss of parole and probationary status).

However, a defendant's right to cross-examine witnesses is "not absolute." State v. J.A.C., 210 N.J. 281, 298 (2012). The cross-examiner may not "roam at will under the guise of impeaching credibility." Gaikwad, supra, 349 N.J. Super. at 87 (quoting State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991)). Thus, a "cross-examiner may not ask a potentially inflammatory question without a good faith basis to support it." State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1991).2 "The question must be based upon facts in evidence or based upon a proffer by the cross-examiner indicating his ability to prove the facts contained in the question." Ibid. Otherwise, the question would improperly suggest the existence of evidence and possess the potential to mislead the jury. Ibid.

Although at the time of the cross-examination, no evidence had yet been admitted that Santiago owed defendant money for drugs, defendant did later testify that Santiago asked for $80 so he could purchase four bags of cocaine from a "gentleman that was standing in front of the house." Defendant did not testify, however, that he witnessed such a purchase take place. No drugs were found by the police. Counsel had good reason not to ask a question without "facts in evidence" where defendant had no "ability to prove the facts contained in the question." Ibid.

Further, trial counsel testified that she made "a judgment call" not to cross-examine Santiago using his status as an illegal immigrant. She pointed out that the evidence showed that Santiago tried to hold defendant and await the police contrary to defendant's theory advanced in the PCR proceedings that Santiago was trying to avoid police scrutiny. She emphasized that she did not want to take the risk of alienating this Cumberland County jury by "trying to make a huge deal out of the fact that this man was an alien," or suggesting that he had a "motive to lie about his home being burglarized because he was illegal." She testified that she did not think the dubious "return" on such questioning was worth the risk. The PCR judge credited her testimony, which was corroborated by her closing argument, and found that she had used a "reasonable trial strategy."

"In matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991). "Which witnesses to cross-examine and the nature of the questions asked fall within this broad zone of attorney discretion." State v. Hightower, 120 N.J. 378, 432 (1990). Here, "[w]e do not fault defense counsel for not pursuing cross-examination that may have damaged defendant's case." State v. Nyhammer, 197 N.J. 383, 414, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Such "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds." State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

Finally, we agree with the PCR judge that defendant failed to show a reasonable probability that, had trial counsel done the cross-examination defendant proposed in the PCR proceedings, the result of the proceeding would have been different. See Allegro, supra, 193 N.J. at 367. As we noted on direct appeal in upholding the references to defendant's criminal history, "the victim's version of the incident was in sharp contrast with defendant's version," so "[c]redibility was the key issue during the trial." Hawkins, supra, slip op. at 6. As the PCR judge detailed, however, Santiago's testimony was in large part corroborated by the other evidence, while defendant's version was uncorroborated, inconsistent, and implausible.

III.

Defendant argues that the PCR judge erred in finding defendant's remaining claims of ineffectiveness insufficient to justify an evidentiary hearing. A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her [ineffectiveness] claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid. (citation omitted).

Applying that standard, we affirm the denial of an evidentiary hearing on defendant's remaining claims for substantially the reasons expressed by Judge Telsey in his oral opinions on January 3 and February 23, 2011. We add the following observations.

Defendant claims that trial counsel was ineffective for not objecting to a comment by the prosecutor during summation. That comment concerned defendant's testimony that, while he was leaving Santiago's apartment via the hallway, "Santiago came up from behind me and punched me in my mouth and knocked my [front] tooth out of my mouth" and "my mouth was bleeding." Defendant then stated that his tooth was "hanging" and that when he got to the county jail, "I brought it to the medical department's attention and I just plucked it out in the nurse's department." Santiago denied punching defendant, and no police or civilian witness testified that defendant's mouth was bleeding or that his front tooth was knocked out or hanging. In his summation, the prosecutor argued:

. . . Mr. Hawkins wants you to believe that he was just walking down the hallway and that out of nowhere, . . . somehow [Santiago] gets in front of Mr. Hawkins, punches him in the mouth and knocks out his tooth. Now, folks, is there any evidence to corroborate from any of the evidence and testimony in this case that his tooth was knocked out? Or that he was bleeding or he had bruising on his face or swelling or anything like that? Was there anything to corroborate that?

Defendant claims that the prosecutor's comment shifted the burden to the defense to produce additional evidence. To the contrary, the prosecutor did not suggest that the defense had the burden of proof, or had an obligation to call witnesses or to produce evidence. Instead, the prosecutor just asked the jury to examine "the testimony and evidence in this case" to see if there was "any evidence to corroborate" defendant's testimony.

New Jersey's model criminal jury charges suggest that, at the beginning and at the end of a trial, the judge instruct the jurors:

As the judges of the facts you are to determine the credibility of the witnesses, and, in determining whether a witness is worthy of belief and therefore credible, you may take into consideration . . . the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence . . . ."

[Model Jury Charge (Criminal), "Instructions After Jury is Sworn" (January 2011) & "Criminal Final Charge" (February 2003).]

The trial judge here gave this instruction to the jury at the beginning and end of the trial.

The prosecutor's comment simply asked the jury to consider the extent to which defendant's testimony was corroborated by other evidence in the case, just as the instructions said they could do. It is not improper for the prosecutor to ask the jury to consider precisely what the trial court's instructions, and indeed the model instructions, say they can consider. See State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005) (no error where the prosecutor accurately stated the law). Therefore, trial counsel was not ineffective for not objecting to this comment by the prosecutor.

"A prosecutor may suggest to the jury that the defense's presentation of the evidence was unbalanced and incomplete." State v. Josephs, 174 N.J. 44, 127 (2002). Similarly, "remarks on the credibility of defendant's testimony" are "unobjectionable." State v. Bauman, 298 N.J. Super. 176, 208 (App. Div.), certif. denied, 150 N.J. 25 (1997); see also State v. Harris, 141 N.J. 525, 559 (1995) ("A prosecutor in a criminal case is expected to make a vigorous and forceful closing argument to the jury."). There was, in fact, no evidence at trial corroborating defendant's testimony. Indeed, the PCR judge allowed defendant to seek corroborating evidence, but after a month defendant presented no such evidence at the evidentiary hearing.3

Defendant also claims trial counsel was ineffective for not objecting to (a) the prosecutor's question to Santiago, "Was that the knife he had?"; (b) Officer John Sloboda's testimony relating his understanding that "[t]he one who did the assaulting" fled the crime scene; (c) the prosecutor's argument in summation that when defendant's "own attorney was asking him questions, it went a lot more smoothly" than did defendant's cross-examination; and (d) an alleged discovery violation because Santiago testified that he spoke to Officer Sloboda through two ladies who interpreted, and the officer did not record in his report and could not recall whether he was assisted by civilians interpreting Santiago. Trial counsel in fact did object to this alleged "discovery violation," but the trial judge properly rejected her claim. For substantially the reasons given by the PCR judge, we find these arguments, and the arguments that appellate counsel was ineffective, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Finally, we note that trial counsel's representation resulted in defendant's acquittal of aggravated assault, possession of a weapon for unlawful purposes, and robbery. The Supreme Court has instructed that "[t]he 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." Allegro, supra, 193 N.J. at 367. We reject defendant's effort to do so here.

1 Defendant does not claim that, absent any alleged drug crime, Santiago's status as an illegal immigrant was itself sufficient to justify such a question. We note that "[a]s a general rule, it is not a crime for a removable alien to remain present in the United States." Arizona v. United States, __ U.S. __, 132 S. Ct. 2492, 2505, 183 L. Ed. 2d 351, 374 (2012). Further, "Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances" not present here. Id., 132 S. Ct. at 2507, 183 L. Ed. 2d at 376.

2 Defendant does not dispute that this was a potentially inflammatory question. See Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 274 (App. Div. 2009) ("illegal status in this country is very likely to trigger negative sentiments in the minds of some jurors").

3 Defendant nonetheless claims that the need for such evidence would have been clear if trial counsel had "met with her client and prepared him to testify." Defendant is in a poor position to make that claim, as he initially refused to prepare with counsel, until spoken to by the court. In any event, counsel's examination and cross-examinations during trial showed that she had discussed defendant's testimony with him.