STATE OF NEW JERSEY v. LARRY FLEMING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4691-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY FLEMING,

Defendant-Appellant.

__________________________________

October 10, 2013

Submitted September 9, 2013 Decided

Before Judges Yannotti and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0286.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Larry Fleming was convicted of first-degree murder, N.J.S.A. 2C:11-3a, first-degree felony murder, N.J.S.A. 2C:11-3a(3), and second-degree aggravated arson, N.J.S.A. 2C:17-1a(1). We affirmed his conviction on direct appeal. State v. Fleming, A-1217-04 (Mar. 14, 2007), certif. denied, 192 N.J. 69 (2007). Defendant now appeals the denial of his petition for post-conviction relief (PCR), claiming that he established a prima facie case that trial counsel was ineffective. We affirm.

I.

As we summarized on direct appeal, the pertinent evidence presented at trial was as follows:

On the evening of May 11, 2002, sometime after 10:15 p.m., firefighters responded to a blaze in an abandoned house at 340 Brunswick Avenue, in Trenton, New Jersey. Ellis McNeill (McNeill) was found dead in the second-floor hallway. . . .

Edwin Warren (Warren) was McNeill's friend. He testified that on the day of the fire, he went to the house at 340 Brunswick Avenue with Carmen Jones (Jones). Jones stayed there at times in a room in the rear of the second floor. McNeill also stayed with a woman called Bernadine in a room on the second floor of the house. Warren said that earlier that day, he had purchased beer, wine and some "rock cocaine." Warren and Jones went to Jones' room and "got high."

Warren testified that, late in the afternoon, defendant walked into Jones' room and asked whether Warren wanted to buy drugs. Warren had purchased drugs from defendant in the past. Warren told defendant that he did not have any money. Later, Warren went into the hallway and saw Jones running in his direction. She told him that the house was on fire. Warren saw a "big ball of black smoke and fire."

Jones testified that McNeill was a "good friend." She said that on May 11, 2002, she was in the house with Warren. During the day, Jones left the house about ten times to purchase cocaine. Jones said that drug dealers would come into the house and make sales. Around 8:00 p.m., Jones saw McNeill talking in his room with Bernadine. Jones left the house and went down to the bar and to a store. Jones saw defendant, who told her that she was a "cross-artist," apparently because she had not spent any money with defendant or come to see him.

Jones returned to the house. Jones and Warren were in her room when defendant appeared. Defendant told Warren that he was a "cross-artist" and Warren had "crossed" him. Jones said that she did not purchase any drugs from defendant at this time. According to Jones, defendant did not have any drugs for sale at that time. Defendant left the room and said that if "anyone needed him, they knew where to find him."

Later, Jones went down the stairs and saw defendant with Curtis Hawkins (Hawkins) and Joseph McKinney (McKinney). Jones said that there was a light in defendant's hand "but it wasn't [a] flashlight." Jones also saw a red can with a yellow nozzle in defendant's left hand. Jones testified that she thought defendant was going to put some gasoline in his car.

McKinney went upstairs to a room on the second floor and Jones returned to her room. Jones said that she and Warren were getting "high" when she heard stones being tossed at the window. She heard someone calling "fire, fire." Jones walked out of the room and started down the steps but she was "hit in the face with the smoke" and she "felt the heat." Jones retreated to her room and told Warren that the house was on fire. Jones, McKinney and Warren jumped from a window on the second floor.

Hawkins testified that he knew defendant. Hawkins used to "watch [defendant's] back" while defendant sold drugs. On May 11, 2002, Hawkins was with defendant near a bar close to the abandoned house. Hawkins and defendant had been selling drugs. According to Hawkins, on the day of the fire, he also helped a person named P.J. sell drugs in or around 340 Brunswick Avenue. Defendant was not aware that Hawkins assisted P.J. in the sale of the drugs. Hawkins and defendant watched P.J., and defendant wondered why he was "running in and out of" the house.

Hawkins entered the house with defendant. They went upstairs and entered Jones' room on the second floor. Defendant asked Warren about $50 that defendant claimed was owed to him. Warren told defendant he did not owe him any money, and defendant replied that if another $50 was "spent out of here," Warren would "suffer the consequences." Defendant and Hawkins exited the house and Hawkins returned to the bar.

Hawkins later left the bar and spoke with P.J. who was several houses away from 340 Brunswick Avenue. Hawkins saw defendant "down on the corner." Defendant came towards him. Defendant had a gasoline can in his hand, and he told Hawkins that a "[l]ady across the street wants some gas." Defendant gave [Hawkins] two or three dollars to purchase gasoline. Hawkins took the can and purchased gasoline. Hawkins returned and met defendant in an alleyway near 340 Brunswick Avenue. Hawkins gave defendant the can with the gasoline and, in return, defendant gave Hawkins some cocaine.

Defendant went into the alleyway towards the rear of the house. Hawkins said that the next thing he saw was defendant "coming running, and flames is [sic] behind him." Hawkins was outside when the police arrived on the scene. Detective Timothy Thomas (Thomas) of the Trenton Police Department said that Hawkins was slumped over and he was shaking his head. According to Thomas, Hawkins did not smell of fire or gasoline and there were no burns or singe marks on his hands. Hawkins told Thomas that defendant "did this shit."

[State v. Fleming, A-1217-04, supra, slip op. at 2-6.]

McKinney similarly testified that when he arrived at 340 Brunswick Avenue, he saw defendant holding a gasoline can. McKinney then went upstairs, heard a boom, discovered the fire, and escaped with Jones. The prosecution also presented expert testimony that "someone had taken gasoline, poured it on the floor by the front door, as well as in other places on the first floor, and then ignited the gasoline," and that McNeill had died from smoke inhalation. Id. at 1-2. Defendant did not testify and called no witnesses.

A jury convicted defendant on all charges. The trial judge sentenced defendant to eighty-five years in prison. Defendant took an unsuccessful direct appeal.

Defendant then filed a pro se PCR petition, and PCR counsel filed a supplemental petition, both claiming that trial counsel was ineffective. After hearing argument, the PCR judge denied the petitions on May 12, 2011. In a thorough written opinion, the PCR judge found that defendant failed to show that counsel's representation was deficient, and failed to establish a prima facie case of prejudice justifying an evidentiary hearing.

Defendant appeals. His counseled brief argues:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVENESS DUE TO TRIAL COUNSEL'S FAILURE TO EMPLOY/OBTAIN IMPEACHMENT EVIDENCE REGARDING THE STATE'S KEY WITNESSES.

Defendant also filed a pro se brief arguing:

BECAUSE THE PCR COURT MISINTERPRETED DEFENDANT'S ARGUMENT AND MISCHARACTERIZED THE DISPATCH LOGS IN DENYING HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, THIS MATTER MUST BE REMANDED BACK TO THE PCR COURT TO CLARIFY THE COURT'S FINDING OF FACT.

BECAUSE DEFENDANT HAS PRESENTED A PRIMA FACIE CLAIM THAT HIS TRIAL ATTORNEY WAS IN FACT INEFFECTIVE DUE TO HIS FAILURE TO CROSS EXAMINE/TO IMPEACH THE STATE'S WITNESS TESTIFIED TIME-LINE AND SEQUENCE OF EVENTS USING THE COMPUTER GENERATED DISPATCH LOGS, THIS MATTER MUST BE REMANDED FOR A FULL EVIDENTIARY HEARING.

II.

In considering defendant's claims, we must apply the identical standards the PCR judge applied. See State v. Nash, 212 N.J. 518, 540-41 (2013). 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).

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). 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.'" State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). 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).

"'Second, the defendant must show that the deficient performance prejudiced the defense.'" Taccetta, supra, 200 N.J. at 193 (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).

Finally, we note that "[i]n 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). 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, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

III.

Defendant's counseled brief argues that trial counsel failed to use in cross-examination information known to him which allegedly showed criminal convictions or charges for witnesses Jones, Hawkins, and McKinney, and failed to obtain additional details discovered during the PCR proceedings. We reject defendant's arguments for substantially the reasons set forth in the PCR judge's opinion.

IV.

Defendant's counseled PCR petition also claimed that trial counsel was ineffective for not confronting Detective Thomas with a dispatcher's log containing a timeline of radio calls. PCR counsel has not renewed that claim on appeal, but defendant has raised it in his pro se brief. We are convinced from our own review of the record that the claim is without merit.

As the PCR judge correctly summarized, defendant argues that "it was implausible that Det. Thomas could have conducted his on-scene interviews, and spoken to Hawkins in just six minutes." To make this argument, defendant notes Thomas's testimony that he arrived on the scene at 11:45 p.m.. Defendant then claims that the log showed Hawkins was transported from the scene to police headquarters at 11:51 p.m. Defendant next states, that, after Thomas arrived, he was briefed by fellow officers and interviewed Nicole Blackshear and Warren before he spoke to Hawkins. Based on these assertions, defendant argues that Thomas could not have heard Hawkins identify defendant at the scene before Hawkins was transported. Defendant's claim overstates both the log and Thomas's testimony.

In fact, the log states:

23:51:29 WS4N-WS4N AUTHORITY OF LT TRAM BRING IN 2 WITNESSES AND BRING THEM INTO HQ'S

00:03:02 WS4N-TAKING 2 TO HQ'S WITNESS WSRN

00:07:11 **UNIT> WS4N ENROUTE TO TAKING PARTIES HQ'S

The log does not mention Hawkins by name, or state the identity or departure time of the "witnesses," "witness," or "parties." Defendant assumes that Hawkins was one of the person(s) referred to as being transported to headquarters. Even making that assumption, it appears that the 23:51:29 entry reflects only an order to transport, and that the actual transportation did not occur until approximately 00:03:02 or later.

Further, Thomas testified that he was "detailed" to the fire scene at "approximately 11:45" p.m., that he "responded around quarter to 12:00," and that he spoke to Hawkins "[p]robably a half hour after being on the scene," and "within an hour or so of the fire." Thus, all of Thomas's time estimates were approximations, made two years after the fire. Confronting Thomas with the log therefore could have simply caused him to make his estimates more precise.

Indeed, had trial counsel confronted Thomas with the log,

it would have revealed the following entry:

22:47:26 WSG-CIB DETECTIVE THOMAS ON THE WAY

It would also have revealed an entry at 23:41:37 issuing an alert for officers to be on the lookout for defendant an alert Thomas testified was issued after he spoke to Hawkins. Those entries would have suggested that Thomas was dispatched, and interviewed Hawkins, much earlier than Thomas remembered when he testified two years later. The log's earlier timetable was more consistent with Thomas's testimony that he had talked to Hawkins "within an hour or so of the fire."1

Any points gained from using the log to question Detective Thomas's memory, moreover, would likely have been outweighed by the damage the log would do to defendant's main defense at trial. Because the log suggested that Thomas spoke to Hawkins much earlier, use of the log would have undermined defendant's principal argument that Hawkins set the fire and had lots of time to clean himself up before police spoke to him.

Defendant's petition emphasized Thomas's testimony that he did not see burn or singe marks or smell fire or gasoline on Hawkins. Defendant argued that "had defense counsel confronted Detective Thomas with the [log] it would have been clear that there was over a one hour window of time from when the fire started to when Detective Thomas actually saw Curtis Hawkins," which would have given Hawkins "ample opportunity to clean up." Trial counsel made that argument using the more favorable timetable in Thomas's testimony. As set forth above, Thomas's time estimates at trial indicated that he was dispatched and responded around 11:45 p.m. and spoke to Hawkins at about 12:15 a.m., two hours after the 10:15 p.m. fire. Thus, trial counsel argued in summation that Hawkins had "a couple hours" to wash up and change clothes to get rid of any telltale scents, burns, or singes, and therefore that Hawkins could have set the fire.

Using the log's earlier timetable would have weakened trial counsel's "opportunity" argument. The log, which indicated that Hawkins encountered Thomas much earlier, would have given Hawkins less opportunity to clean up. Thus, there was an obvious strategic reason not to use the log. See State v. Nyhammer, 197 N.J. 383, 414 ("We do not fault defense counsel for not pursuing cross-examination that may have damaged defendant's case."), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Also, the dispatch and alert entries undermine defendant's argument why counsel should have used the log to show that Thomas could not have spoken to Hawkins before his alleged 11:51 p.m. transportation. Because cross-examination with the log may have damaged defendant's principal defense, and was unlikely to advance the purpose defendant now asserts, defendant has not shown a prima facie case that his trial counsel was deficient.

In any event, we do not believe that defendant has demonstrated a prima facie case of prejudice. It is unlikely such cross-examination would cause the jury to doubt that Thomas had seen Hawkins at the scene, because Thomas's testimony was corroborated by Hawkins, and by Detective Lloyd Mathis, who testified that Thomas introduced him to Hawkins at the scene. Furthermore, Lloyd testified that Hawkins also told Lloyd that "Fruit" was the person who started the fire, and that Hawkins did not smell of smoke or gasoline and had no soot on him.

More importantly, even if the proposed cross-examination caused the jury to discount Thomas's testimony about Hawkins' on-scene identification, Hawkins identified defendant at trial. In State v. Cotto, 182 N.J. 316 (2005), the Supreme Court held that, "[a]lthough it was error to admit the testimony of police officers concerning the statements" by eyewitnesses identifying the defendant, made at the crime scene and the police station, the "defendant suffered no significant harm from that testimony" because the eyewitnesses "identified defendant in court," and the "defendant had the opportunity to cross-examine the [eyewitnesses] when they testified." Id. at 668-69. The same is true here. We therefore reject defendant's claim that trial counsel was ineffective for failing to cross-examine Thomas with the log.

V.

Finally, we note that defendant's pro se brief is wide-ranging in its arguments allegedly supporting the claim addressed above. To the extent he is re-raising the other claims raised in his PCR petition, we reject them for substantially the reasons given in the PCR judge's opinion. We find any remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 Defendant contends that the PCR judge misunderstood the argument in his petition. In fact, Defendant mistakenly argued that the "logs support the fact that Detective Thomas arrived at the scene at 11:45 p.m.," which the log did not do. The judge then correctly noted that the logs indicate that "Detective Thomas on the way" at 22:47:26. As the judge noted, that entry suggests that "there was not an hour-and-a-half of time between the fire and when Det. Thomas met with Hawkins."