STATE OF NEW JERSEY v. DAW'UD FARRIED

NOT FOR PUBLICATION WITHOUT THE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.

DAW'UD FARRIED,

Defendant-Appellant.

__________________________

March 28, 2014

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3588.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a June 4, 2012 order denying his petition for post-conviction relief (PCR), contending that he received ineffective assistance of trial counsel. We affirm.

In November 2006, a grand jury indicted defendant for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree unlawful possession of a rifle without first having obtained a firearm purchaser identification card to purchase same, N.J.S.A. 2C:39-5c (count three); second-degree unlawful possession of a rifle, N.J.S.A. 2C:39-4a (count four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count five).

During a four-day trial in May 2007, the State produced eyewitness testimony that, on June 1, 2006, defendant shot the victim in the leg while the two were in a physical altercation and then beat him after he fell to the ground. The jury found defendant guilty of second-degree aggravated assault and the weapons charges (counts two, three, and four).

In July 2007, Judge Michael R. Casale merged counts two and four and sentenced defendant to an aggregate term of seventeen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1 Defendant appealed, arguing that the judge gave an erroneous limiting instruction and imposed an excessive sentence. We affirmed, State v. Farried, No. A-3039-07 (App. Div. Oct. 21, 2010), and the Supreme Court denied certification, State v. Farried, 205 N.J. 272 (2011).

In May 2011, defendant filed his petition for PCR. Defendant argued that he was denied effective assistance of counsel by trial counsel's failure to advise him of the consequences of his guilty plea under the separate indictment, failure to perform ballistics tests, and failure to argue mitigating factors. He also argued appellate counsel was ineffective by failing to raise these issues on direct appeal. Defendant's PCR counsel submitted a brief arguing that trial counsel was ineffective by failing to interview and call three eyewitnesses who might have provided exonerating testimony.

Judge Michael L. Ravin conducted an evidentiary hearing and denied defendant's petition, memorializing his reasons in a forty-two page written opinion. The judge stated in part that

trial counsel's failure to interview and call [three of the women who witnessed the altercation] as defense witnesses at trial was a strategic decision. It was not a strategic decision that trial counsel made on a whim without the consent of [defendant] or without deliberation. Rather, [defendant] and trial counsel discussed the possibility of these three witnesses testifying at trial through a number of meetings. . . . Ultimately, trial counsel and [defendant] mutually decided that the calling of these[] witnesses would not be helpful to [defendant]'s case and could instead harm his case . . . .

The Court found that trial counsel did not interview these witnesses himself or employ an investigator to determine which of them, if any, might be helpful. Although this practice is not recommended, it does not amount to a constitutional violation in the form of ineffective assistance of counsel. Instead of employing the traditional means of witness investigation, trial counsel relied on [defendant] to reach out to the witnesses and preliminarily assess whether they would be helpful at his trial. [Defendant] clearly had a close relationship with each of the potential witnesses . . . . Therefore, trial counsel reasonably relied on [defendant] to determine what these witnesses had observed, as well as their likely testimony at trial.

. . . .

Even if [defendant] had proven that trial counsel was deficient with regard to the witness issue, [defendant] has not satisfied the second prong of [Strickland v. Washington, 486 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] -- the prejudice prong. . . .

Despite [defendant's] claims of prejudice, the evidentiary [PCR] hearing testimony of [the three witnesses] undermine any finding of prejudice. . . . [N]one of these witnesses were credible for a multitude of reasons. First, all of the witnesses had a bias in favor of [defendant] . . . . Second, key aspects of each of these witnesses' testimony were contradicted by the other witnesses' testimony . . . . Third, there were inconsistencies and contradictory statements as between each witness's own testimony and/or her own written certification. Fourth, the fact that [two of the witnesses] could not hear any gunshot even though [the other witness] could hear same questions the reasonableness of [the two witnesses'] testimony. For these reasons, the Court cannot find by a preponderance of the credible evidence that the jury would have found these witnesses[] credible and would have acquitted [defendant] of the charged offenses. [] On the contrary, due to the witnesses' lack of credibility and the fact that they candidly admitted to being involved in the fight preceding the shooting of [the victim], it is very likely that they could have in fact harmed [defendant]'s case.

The judge rejected defendant's pro se arguments because defendant relied on unsupported factual assertions and impermissibly attempted to challenge the sufficiency of the evidence supporting his conviction.

On appeal, defendant raises the following arguments:

POINT I

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

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S PRO SE CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S PRO SE CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

For a defendant to obtain PCR based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The court should presume that counsel "rendered adequate assistance and made all the significant decisions in exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. at 695. Defendant must establish with "reasonable probability" that the result would have been different if not for counsel's deficient performance. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. at 698.

We are not convinced that defendant has satisfied prong one of Strickland. Trial counsel conferred with defendant about whether the three eyewitnesses' testimony would be helpful or detrimental to his case, and determined after consultation with defendant that, for strategic reasons, he would not produce testimony from these witnesses for strategic reasons. He did not, however, personally interview the potential witnesses or engage the services of a professional investigator to do so.

Yet even assuming that defendant met prong one, which is not the case here, defendant has failed to meet prong two of Strickland because he has not demonstrated that the alleged deficient performance prejudiced defendant's right to a fair trial. The State introduced overwhelming evidence of guilt, including the victim's testimony that defendant shot him with a rifle, the victim's daughter's testimony that she saw defendant with a rifle immediately before his fight with the victim, a detective's testimony that the victim identified defendant, the arresting detective's testimony that he found a rifle under defendant's mattress at the time of the arrest, and the victim's testimony that that same rifle "looks exactly like" the one defendant used to shoot him. In addition, Judge Ravin found that the three other eyewitnesses, whom trial counsel did not call to testify, lacked credibility. We defer to the judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

We conclude that defendant's other arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 The judge imposed a concurrent prison sentence of three years under a separate indictment.