STATE OF NEW JERSEY v. DEVOE MCBRIDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEVOE MCBRIDE,

Defendant-Appellant.

September 30, 2013

Submitted September 24, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-12-0808.

Joseph E. Krakora, Public Defender, attorney for appellant (Ernest Anemone, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Devoe McBride appeals from the December 12, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). The trial court sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility on September 12, 2005. On direct appeal we affirmed defendant's conviction but remanded the matter for resentencing. State v. McBride, No. A-3855-05 (App. Div. September 27, 2007). On May 22, 2008, the trial court reviewed the matter and again imposed the same sentence.

In our prior unpublished opinion, we summarized the facts of the case as follows:

On June 11, 2002, at about 9:15 p.m., Lieutenant Chad Callahan of the Ocean County Police Department saw defendant driving an Acura automobile. Although it was night, the area was well-lit by streetlights and light coming from stores. Callahan testified that he recognized defendant because he had been in contact with him hundreds of times. Because Callahan knew that defendant's driver's license was suspended, he followed him, noting that he failed to stop at a stop sign and was driving fifty miles per hour in a twenty-miles per hour zone. Callahan activated his police lights and siren, and defendant pulled to a stop. Callahan saw no one else in the car. Callahan walked up to the driver's side of defendant's automobile, and defendant said, What's up Chad? Callahan replied, Mr. McBride, Devoe, turn your f'king car off. Instead of doing as he was told, defendant drove away at a high rate of speed.

During the chase, defendant almost hit another motor vehicle, then turned into a narrow alleyway, turned off the automobile's lights, made a turn back on the street, and drove through several stop signs. Callahan stopped his pursuit because of safety concerns. Another officer, Michael Gray, who had joined the effort to arrest defendant, saw defendant standing next to his automobile and watched as he ran into his home on West Avenue.

A third officer, David Hall, who also had numerous contacts with defendant, and identified him in court, testified that he saw defendant look out of the window on the second floor of the West Avenue house. Callahan and Gray went upstairs and placed defendant under arrest.

Defendant's uncle, Julius Adams, testified for the defendant, indicating that he was the driver of the Acura on the night in question, and that defendant was in a passenger seat. Adams's testimony contained many inconsistencies, but there is no need to detail them here. Nor, since defendant does not contend the verdict was against the weight of the evidence, need we describe the testimony of other defense witnesses who attempted to corroborate Adams's story.

[State v. McBride, No. A-3855-05 (App. Div. September 27, 2007)(slip op. at 2-3).]

In July 2008 defendant filed a PCR petition, and counsel was thereafter assigned. Judge Raymond A. Batten heard oral argument on defendant's PCR petition on November 15, 2011, and issued a comprehensive oral opinion denying relief.

On this appeal, defendant raises the following arguments:

I. BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION WITHOUT AN EVIDENTIARY HEARING

A. TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF EVIDENCE DENIED DEFENDANT EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL'S FAILURE TO RAISE THIS ISSUE DENIED DEFENDANT EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE 404(B) OBJECTIONS TO THE POLICE OFFICER'S BELIEF THAT DEFENDANT HAD A PROPENSITY TO ELUDE POLICE AND THE "PROBLEM AREA" WHERE PETITIONER RESIDED

C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE THAT EVIDENCE OF DEFENDANT'S REVOKED LICENSE COULD NOT BE USED TO INFER GUILT

D. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE ISSUE OF THE TRIAL COURT'S LIMITATIONS ON THE DIRECT EXAMINATION OF JULIUS ADAMS

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Batten in his thorough oral opinion. We add the following comments.

We consider a defendant's claim of ineffective assistance of counsel under the standards established under Strickland v.Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J.42, 58 (1987). In order to establish an ineffective assistance of counsel claim, a defendant must first show "that counsel's performance was deficient". Fritz, supra, 105 N.J.at 52 (quoting Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must then demonstrate "that the deficient performance prejudiced the defense". Ibid.

A defendant is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J.89, 158 (citing State v.Preciose, 129 N.J.451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). An evidentiary hearing on an ineffective assistance of counsel claim is therefore required only where the defendant has established a prima facie case that alleges facts not already part of the record. State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also Preciose, supra, 129 N.J. at 462.

Defendant first argues that trial counsel's failure to move to suppress defendant's arrest, which the police carried out in a private residence without consent to entry and without a warrant, constituted ineffective assistance of counsel. Also, defendant argues that appellate counsel was similarly ineffective in failing to advance this argument on appeal. We disagree. Judge Batten rejected defendant's argument, finding that the "hot pursuit" exception to the warrant requirement applied, citing Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). We find defendant's substantial reliance on State v. Bolte, 115 N.J. 579 (1989), cert. den. 493 U.S. 936 (1989), misplaced. In Bolte, a police officer, after observing certain erratic driving, followed defendant to his residence. Bolte then exited his car and entered his home. The officer followed Bolte into the house and upstairs to his bedroom, where the officer arrested Bolte and charged him with various motor vehicle and disorderly persons offenses, including eluding. Our Supreme Court held that these offenses fell within the category of "minor offenses" which were insufficient to justify a warrantless home entry. Id. at 597.

Following the decision in Bolte, the Legislature amended N.J.S.A. 2C:29-2(b) so as to designate, as a crime of the fourth-degree, flight or an attempt to elude which creates a risk of death or serious injury.1 The statute was subsequently further amended so as to upgrade flight or attempt to elude from a disorderly persons offense to a third-degree crime.2 Additionally, this amendment further upgraded flight or attempt to elude which created a risk of death or injury to any person, from a fourth-degree crime to a second-degree crime. Hence, unlike Bolte, at the time of this incident, defendant's eluding charge no longer constituted a disorderly persons offense. Rather, it was a second-degree crime. As such, defendant's conduct did not fall within the proscription of "minor offenses", and which Bolte found insufficient to justify a warrantless entry under the "hot pursuit" and exigent circumstances exceptions to the warrant requirement.

As Judge Batten correctly recognized, when a defendant's ineffective assistance of counsel claim is based on a failure to file a Fourth Amendment suppression motion, "the defendant not only must satisfy both prongs of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). Since we do not consider trial counsel's failure to seek suppression of defendant's arrest to have any prospect of success, we similarly do not view appellate counsel's failure to raise the issue as ineffective assistance. The State's arrest and seizure of defendant was not unconstitutional; therefore, the failure to litigate the issue was not ineffective assistance of counsel.

Regarding defendant's second point on appeal, he contends that trial counsel was ineffective in failing to object to the police officer's testimony (1) that defendant had the "potential to flee" from police, and (2) with regard to the "problem area" where defendant resided. The record reveals otherwise.

Here, defense counsel moved prior to trial to preclude Callahan's intended testimony, which included any mention of prior or subsequent contact with defendant, asserting that it was prejudicial and improper character evidence, and should be excluded under N.J.R.E. 404(b). The trial court ruled:

I will allow general testimony with regard to familiarity with the identity of this defendant.

It is to be couched in general terms. It is not to include the word[s] "investigation" or "interaction". It is not to include any other phraseology that could fairly be perceived by the jury as negative, in terms of personality traits, in terms of prior record[,] prior criminal involvement.

Which, stated otherwise, Mr. Herlihy[,] I'll try to give you more direction on this. You may ask an officer, or more than one, however many you wish, whether or not he or she is familiar with the defendant, but not to include any law enforcement related component of questioning.

. . .

If they ran into each other on the Ocean City boardwalk every Sunday afternoon, I don't find that prejudicial. If it has to do with an officer patrolling a particular section of town, known or believed by police to be a high-crime area, or if it involved an officer's role as a confidential informant or any other police investigation, that's out.

During trial, the following line of questioning took place on direct examination of Callahan:

Q: In terms of contact with him, could you describe[] to the jury how familiar you are with Devoe McBride?

A: During the course since May of 1994 until I would say somewhere around 1998, 1999 before I got promoted to sergeant, I've had contact with the defendant hundreds of times. Like I said earlier, we were based in a specific part of Ocean City, where problems have occurred we were assigned to.

I would see the defendant in a specific area as the Ocean City housing projects during the course of that time . . . that's where a lot of the times we had our problems occur.

Shortly after this questioning, defense counsel objected:

[Defense Counsel]: Objection, Your Honor. Can we approach on this, Your Honor?

[The Court]: Sure.

(At sidebar conference)

[Defense Counsel]: The length of this questioning and the depth of it, the constant referral to [] it being an area where there's a lot of problems and the number of contacts is giving rise to undue prejudice to my client, and I believe that this is directly contrary to the order given earlier this week when we started the trial. You ruled on our motion in limine and I specifically asked for a mistrial. I think it s a matter of prosecutorial misconduct at this point.

[Prosecutor]: I indicated that he was (inaudible) information to conversations he had. He hasn't said anything about arresting this individual (inaudible). I think I'm beyond that aspect of the case. Now I'm going in a different direction. I certainly will direct him back on course, if there's a problem-- I don't think that there's any undue prejudice to this defendant by what's been testified to.

[The Court]: At this point I don't find any violation of the Court's prior order. The question is to familiarity the motion for mistrial is denied, and the objection [is] overruled. Thank you.

Over defendant's objection, the judge permitted the prosecutor's direct examination of Callahan regarding his familiarity with defendant and the area.

Defendant's ineffective assistance of counsel claim regarding the "problem area" testimony is clearly without merit, as counsel objected not only to the introduction of the testimony regarding the officer's familiarity with defendant, but also his residence in a "problem" area. It is also important to note that defendant previously challenged the introduction of this testimony on direct appeal. In rejecting defendant's argument, the panel in its 2007 decision stated:

Respecting defendant's first point, we note that the only substantial issue in this case was identification, and the critical testimony in that regard came from Lieutenant Callahan.

The evidence indicating that Callahan had hundreds of street contacts with defendant was highly relevant to the identification. Relevant evidence must be admitted unless its probative value is outweighed by the resulting prejudice. State v. Carter, 91 N.J.86, 106 (1982). Whether undue prejudice is present is generally left to the sound discretion of the judge. Ibid.Although defendant argues that Callahan's testimony prejudicially implied that he had a criminal record, in fact Callahan neither said nor intimated that. Rather, his testimony suggested that the relationship was collegial, merely involving conversations in a neighborhood to which Callahan had been then assigned. The judge carefully considered this issue on at least two occasions, during which he provided firm and clear instructions so that the witness's testimony would include no negative material. The witness stayed well within the judge's strictures, and we perceive no basis for reversal on this point.

[McBride, supra, slip op. at 5-6.]

In this same vein, at trial Callahan also testified:

[A]s the vehicle proceeded down Haven Avenue, and after realizing it was Mr. McBride driving, just to give you some insight [i]nto stopping the vehicle, Haven Avenue here, along with Simpson here, the defendant used to live and used to frequent. So, as far as doing a car stop . . . I wasn't going to do a car stop there, because his potential to flee on foot, he knew the area.

Defendant argues that this testimony was prejudicial in that it constituted impermissible evidence of defendant's propensity to flee, contrary to N.J.R.E. 404(b)3, and that trial counsel was ineffective in objecting to it on such basis. Here, Judge Batten noted that Callahan never stated that defendant had a propensity to flee from police or had ever done so in the past. Rather, Callahan testified that he was afraid defendant would flee on foot because of his knowledge of the area. Judge Batten, who also presided over the trial, noted the strength of the State's proofs, and concluded that even if trial counsel was mistaken in failing to object on this basis, that such mistake "was not so serious as to undermine this [c]ourt's confidence in the outcome of the trial." We agree, and similarly conclude that defendant failed to establish the second prong of the Strickland analysis.

Finally, defendant was not entitled to an evidentiary hearing because he did not present a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462.

Affirmed.

1 L. 1991, c. 341, 3, eff. January 7, 1992.

2 L. 1993, c. 219, 5, eff. August 2, 1993.

3 N.J.R.E. 404(b) states: "Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to provide the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."