STATE OF NEW JERSEY v. JEFFREY AYERS

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

JEFFREY AYERS,

Defendant-Respondent.

_____________________________

July 25, 2014

 

Argued February 25, 2014 Decided

 

Before Judges Messano and Rothstadt.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3331.

 

Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, on the brief).

 

William P. Welaj, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Welaj, on the brief).

 

PER CURIAM

The State appeals from an order granting defendant Jeffrey Ayers post-conviction relief (PCR) on the basis that his defense counsel rendered ineffective assistance when she failed to apprise defendant of the consequences of waiving his right to testify at trial. Defendant was convicted of charges that included murder, felony murder, armed robbery, and conspiracy to commit robbery, following a jury trial presided over by Judge Garry J. Furnari. He subsequently filed a PCR petition. A different judge held an evidentiary hearing on defendant's PCR petition, and concluded that counsel's failure to properly advise defendant amounted to constitutionally deficient representation, entitling defendant to a new trial. The PCR court granted the State's application for a stay and this appeal followed.

On appeal, the State argues that the PCR court "erred in presuming ineffectiveness [of counsel and in] presuming prejudice." Defendant disagrees and argues that the trial record and the PCR hearing record supported the PCR court's decision. We have considered these arguments after a careful review of the record, and conclude that we agree with the PCR court's decision that counsel failed to adequately advise defendant of the consequences of waiving his right to testify at trial; but we find no evidence, under the second prong of the Strickland/Fritz1 test, that the deficiency prejudiced defendant's right to a fair trial. Accordingly, we reverse the PCR court's granting of relief to defendant and reinstate his conviction and sentence.

I.

A.

On September 28, 2007, an Essex County grand jury returned an indictment charging defendant with first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), -3(a)(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1 (count six). At the conclusion of defendant's trial, a jury convicted defendant of all charges. Judge Furnari subsequently sentenced defendant to an aggregate term of thirty-five years imprisonment, subject to parole ineligibility for eighty-five percent of his term, and imposed applicable fines and penalties. Defendant appealed and we affirmed his convictions and sentences. State v. Ayers, No. A-0372-09 (App. Div. May 20, 2011). The Supreme Court later denied defendant's petition for certification. State v. Ayers, 208 N.J. 598 (2011).

B.2

Defendant's conviction arose from events that occurred on the evening of February 28, 2007, when Quenting Scott Lacewell was shot near Fifteenth Avenue and Bruce Street in Newark. Shortly after the shooting occurred, William Rowe, an off-duty East Orange police officer happened upon Lacewell, and stopped to give assistance. Before Lacewell died, he twice told the officer that "Al-Barr's son," a person other than defendant, had shot him. However, the police located two eyewitnesses, Jocelyn Brooks and Rosalyn Williams, who both identified defendant, and not "Al-Barr's son," as the shooter. The State also presented evidence that, shortly after the shooting, defendant was in possession of the victim's cell phone and allowed a friend to make calls from that phone.

Earlier that same evening, some time between 9:30 p.m. and 10:00 p.m., Lacewell, Brooks, and Williams were together in a car as Lacewell drove Brooks back to her home. According to Brooks, shortly after they arrived at her home, "a couple of [young] guys" between the ages of eighteen and twenty-two approached and stood around Lacewell's parked vehicle. Both Brooks and Williams recognized Al-Barr Edrington and his brother, Al-Meer Edrington, among the group. The Edrington brothers' father was known as Al-Barr, and his son of the same name was sometimes known as "little Al-Barr."

Lacewell had a brief conversation with the group, and then he and Brooks together walked some distance away and purchased cocaine from an unnamed person. Williams remained in the car. As the two began to walk back to the car, Brooks stated that "a tall, thin, dark-skinned man" wearing a black hoodie tied tight to his face approached Lacewell, brandishing a gun. He demanded that Lacewell give him "whatever he had." At trial, both Brooks and Williams apparently testified that they believed this man to be defendant, but Brooks also conceded that she was not "100 percent sure."

According to Brooks and Williams, after confronting Lacewell outside the car, the gunman dragged Lacewell into an alleyway. Lacewell "sounded scared" and asked, "Why are you doing this?" Meanwhile, Williams exited the car and witnessed Lacewell breaking away from the gunman and running out of the alley towards Fifteenth Avenue. The gunman then chased Lacewell and tripped him. According to Williams, when Lacewell fell, the gunman stood over him, pointed the gun at him, and attempted to shoot. The gun, however, did not fire. Lacewell then got up and started running again, with the gunman giving chase. Williams and Brooks then heard "at least" three gun shots, followed by a "holler" from Lacewell.

Both women ran to the back entrance of Brooks' apartment. As they headed for the steps to the apartment, Williams, who was approximately thirty-five feet from the gunman, saw him running past Brooks' apartment, down Fifteenth Avenue. The two women entered Brooks' apartment, and about fifteen minutes later, Williams went home. Neither Brooks nor Williams called the police.

At approximately 11:00 p.m., Officer Rowe was driving eastbound on Springfield Avenue towards downtown Newark. He saw Lacewell lying in the road, thought he had been hit by a car, and approached him. Lacewell told Rowe that "he had been shot two or three times in the side and the back." Rowe asked Lacewell who had shot him, to which Lacewell replied, "Al-Barr's son." Lacewell subsequently died from "a gunshot wound to the back," which perforated an artery in his upper right arm.

Newark police officers arrived at the scene minutes later. Detectives Richard Warren, of the Newark Police Department, and Steve Roberts, of the Essex County Prosecutor's Office, also responded to the scene. Roberts saw a blood trail beginning at Fifteenth Avenue and Bruce Street. Also on Bruce Street, Roberts found five spent bullet shell casings "spaced apart" and "a live round" of ammunition. A ballistics analysis of the spent shell casings concluded that all five bullets were fired from the same .40 caliber handgun, and the live round of unfired ammunition was most likely for the same weapon.

At defendant's trial, the State presented testimony from several witnesses, including Brooks and Williams. Brooks, who knew and liked defendant and lived in his neighborhood, was equivocal in her trial testimony. On the other hand, Williams, who lived elsewhere and had never seen defendant before the night of the shooting, testified without hesitation that defendant was the shooter. Williams, who knew Al-Barr and his son, "little Al-Barr," also testified unequivocally that Al-Barr's son was not the person who shot Lacewell.

Crucially, the State introduced evidence that police officers recovered the victim's cell phone from defendant following the shooting. To support this claim, the State introduced Jaquetta Britton as a witness. She explained that some time after 10:30 p.m. on the night of the shooting, defendant arrived at Britton's aunt's apartment on Bedford Street. Britton asked to use a cell phone that defendant was holding in his hand, and defendant let her use it. While Britton had the phone, it received incoming calls that the caller ID feature identified as "wifey." Although defendant told Britton not to answer the phone, she answered it once, but hung up. The State introduced evidence that the caller was Lacewell's wife, and that the phone belonged to Lacewell.

Defendant presented the testimony of a witnesses to support his defense of mistaken identity that one of Al-Barr's sons, and not defendant, was the shooter. To this end, defendant presented one of his friends, Darnell Bronson, as an alibi witness, who testified that defendant was with him at the time of the shooting.3 Defendant also presented character witness testimony from two of his former high school football coaches and teachers. One former coach described defendant as a peaceful, law-abiding, non-violent, good young man who was trying to get a football scholarship for college. The other coach, who also taught defendant physical education and health, likewise described him as peaceful, law-abiding, and non-violent.

Defendant chose to not testify at trial. Judge Furnari carefully questioned defendant to determine defendant's understanding of that decision:

COURT: Mr. Ayers, your attorney has indicated to me that you have made a choice not to testify at this trial, right?

 

DEFENDANT: Yes.

 

COURT: No one can stop you from testifying at your own trial, not even your attorney's advice, if that's what you want to do. Do you understand that?

 

DEFENDANT: Yes.

 

COURT: Have you felt like you had plenty of opportunity to talk that all over with your attorney?

 

DEFENDANT: Yes.

 

COURT: And you're satisfied not to testify at this time?

 

DEFENDANT: Absolutely.

 

COURT: Now, one of two things could happen. After that, I could either tell the jury the following, ["]As you know, the Defendant elected not to testify at trial. It is his constitutional right to remain silent. You must not consider it for any purpose or in any manner in arriving at your verdict, the fact that the Defendant did not testify; That fact should not enter into your deliberations or your discussions in any manner at any time. The Defendant is entitled to have the jury consider all the evidence presented at trial. He is presumed innocent even if he chooses not to testify.["]

 

Now, it's up to you whether I give that to the jury or whether I don't.

 

Now, I can tell you sometimes attorneys think that if you give it you are highlighting for the jury the fact that the Defendant didn't testify and they ask it not be given. On other occasions, people say it's obvious that you didn't testify because you didn't testify and this is an important principle of the law and you should give it.

 

But, again, your attorney can't make that decision for you. She can't insist that we don't if you want me to.

 

Do you understand that?

 

DEFENDANT: Yes.

 

COURT: Or vice versa, if you don't want me to, she can't insist that.

 

So I am going to ask you, she has indicated that she wants me to give this charge to the jury; is that what you would like?

 

DEFENDANT: I mean, like you said, it's pretty obvious, so it really shouldn't matter.

 

COURT: You don't have to tell me your reasons, you just have to tell me how you feel. So you want me to give that?

 

DEFENDANT: You can give that.

 

COURT: All right; okay. Then I will give that section. I will give the [d]efendant's election not to testify. I am going to give the standard version.

 

C.

 

In his certification filed in support of his PCR petition, defendant stated that his trial counsel "coerc[ed him] into not testifying [and h]ad [he] testified, [he] would have been acquitted of all charges." However, he did not disclose any facts to which he would have testified.

His trial counsel filed a certification that stated,

Mr. Ayers was also advised of his right to testify. Mr. Ayers never expressed a desire to do so. Upon informing Judge Furnari of my discussion with Mr. Ayers and his election not to testify, as well as his election to read the appropriate Jury charge, Judge Furnari questioned Mr. Ayers on the record. Judge Furnari wanted to ensure that Mr. Ayers understood his constitutional right to testify and that Mr. Ayers' decision was made knowingly, intelligently and voluntarily. Judge Furnari was satisfied that Mr. Ayers' decision was in fact knowing, intelligent and voluntary and free from any outside influence or coercion. Judge Furnari was also satisfied that Mr. Ayers understood the jury charge, that Mr. Ayers elected to be read to the jury, regarding his election not to testify.

 

. . . I attest that Mr. Ayers' was never coerced into not testifying on his own behalf. Had Mr. Ayers elected to testify, just []as he elected to call an Alibi witness against my advice, his decision to testify would have [been] scrupulously honored. However, no such request was made. Nor was a request made [b]y Mr. Ayers to not read the jury charge regarding his election not to testify.

 

. . . Mr. Ayers was consulted regarding all aspects of his trial and he was never coerced into making any decisions.

 

At defendant's later PCR hearing, both defendant and his trial counsel testified. Defendant spoke first about wanting to testify at trial:

PCR COUNSEL: . . . Did you as a [d]efendant desire to testify in this matter?

 

DEFENDANT: Absolutely.

 

PCR COUNSEL: Okay. Why didn't you testify?

 

DEFENDANT: Under the advice of my counsel, I didn't testify.

 

PCR COUNSEL: All right. Could you explain that a little bit more? What was did she

 

DEFENDANT: Well, basically I had someone testify in my defense for my alibi, . . . [Darnell Bronson], and basically my testimony would have coincided with what he was saying.

 

PCR COUNSEL: What would you have testified to, sir?

 

DEFENDANT: I would have said basically the same thing Mr.

 

PCR COUNSEL: Well, could you

 

DEFENDANT: - [Bronson] said. We

 

PCR COUNSEL: - please tell the [c]ourt that?

 

DEFENDANT: I would have said that we were together that night, what time we were together

 

PCR COUNSEL: Well, when what time were you together that night?

 

DEFENDANT: We were together maybe around maybe seven'ish, ear maybe it was a little earlier, maybe seven or eight'ish. We were at West Kenny (phonetic) playing basketball. After we got finished from West Kenny, we going to the store. The store closes maybe around ten'ish, something like that. We went back to his house, and we were sitting in the in the hallway of his apartment building talking the whole time.

 

PCR COUNSEL: Okay. And there's an allegation that you were coerced not to testify by counsel?

 

DEFENDANT: Yes.

 

PCR COUNSEL: Could you tell us about what, if anything, counsel did to coerce you not to testify?

 

DEFENDANT: Well, I basically asked her [trial counsel]; I said, "Do I need to testify," basically to say exactly well, not exactly, but say what happened that night, what Mr. [Bronson] was was saying. And basically [trial counsel said, "I don't think it's best for you to testify."

 

PCR COUNSEL: And did you disagree?

 

DEFENDANT: Yes, in a way, but I took her advice and she was a professional, so I

 

PCR COUNSEL: Yeah, but you

 

DEFENDANT: - took her advice.

 

PCR COUNSEL: - in your heart wanted to testify and tell your story?

 

DEFENDANT: Yeah.

 

. . . .

 

PCR COUNSEL: Why did you want to testify?

 

DEFENDANT: Basically in order to tell my side of the story, basically, because I know I didn't do it, so there was nothing really for me to hide.

 

[(Emphasis added).]

 

Absent from defendant's direct examination was any description of what his testimony would have been, other than corroborating his alibi witness' testimony. Defendant never mentioned anything about how he acquired the victim's cell phone.

On cross-examination, the prosecutor reviewed defendant's answers to Judge Furnari's questions when the judge conducted voir dire to confirm defendant's understanding of his decision to not testify:

PROSECUTOR: Okay. And then there came a time, sir, when Judge Furnari asked you in open court and swore you under oath, as you are here today, whether you wanted to testify on your own behalf; do you recall that?

 

DEFENDANT: Yes.

 

PROSECUTOR: Okay. And were you truthful to to Judge Furnari when he was asking you questions regarding your right to testify?

 

. . . .

 

DEFENDANT: Yes.

 

. . . .

 

PROSECUTOR: And did you recall did Judge Furnari continue to to ask you, "No one can stop you from testifying at your own trial, not even your lawyer, not even your lawyer's advice, if that's what you want to do; do you understand that?" Do you recall being asked that by Judge Furnari?

 

DEFENDANT: Yes.

 

. . . .

 

PROSECUTOR: Do you recall the Judge further asking you under oath, "Have you had the have you felt like you had plenty of opportunity to talk that all over with your attorney?" And do you recall your answer being yes; do you recall that?

 

DEFENDANT: Yes, I remember.

 

PROSECUTOR: And did the [c]ourt further ask you, "Are you satisfied not to testify at this time?"[] And do you recall what your answer was?

 

. . . .

 

Your answer was actually, "Ab absolutely," correct?

 

DEFENDANT: Yes.

 

. . . .

 

Absolutely, yes, yes. You're right. Correct.

 

PROSECUTOR: So, sir, it's fair to say at the time, on June 25th, 2009, you understood your right to testify on your own behalf on your case, is that correct?

 

DEFENDANT: Yes.

 

. . . .

 

PROSECUTOR: And you indicated to the Judge Furnari that it was your it was your decision solely your decision not to testify at your trial, is that correct?

 

DEFENDANT: Yes.

 

PROSECUTOR: Okay.

 

[(Emphasis added).]

 

On direct examination, defendant's trial counsel testified that defendant did not want to testify at trial::

PROSECUTOR: . . . And did at any time did Mr. Ayers ever express a desire to testify to you?

 

[TRIAL COUNSEL]: No, he did not.

 

. . . .

 

Well, if I can explain

 

. . . .

 

I I recall at one portion of the trial when the State was presenting its case that Mr. Ayers said to me, "When are we going to get our turn?"[] Didn't specifically mention anything about testifying, but he just said, "When are we going to get our turn?"[] And I explained to him that at this particular trial, in a criminal matter, he is presumed to be innocent, so he didn't have to defend himself or explain anything; it's the State's burden and that burden never shifted. That was the first time we started to have conv have conversations about it.

 

And then I told him at the end of the State's case we would talk about the evidence and we would make a decision whether or not I felt he needed to testify, but ultimately the decision would be his.

 

PROSECUTOR: Okay. Did you other than providing advice to Mr. Ayers, did you force or coerce him in any way not to testify [on] his own behalf?

 

[TRIAL COUNSEL]: Never.

 

 

The PCR judge also questioned trial counsel about her representation of defendant in his decision to not testify at trial:

COURT: [W]as there any meeting that you recall in which you prepared the [d]efendant to testify at trial?

 

[TRIAL COUNSEL]: Um.

 

. . . .

 

COURT: When did you discuss with the [d]efendant his right to testify or his right to elect not to testify?

 

[TRIAL COUNSEL]: At the clo well, we had conversations about it throughout the trial, but the last meaningful conversation was at the close of the State's case.

 

. . . .

COURT: After [your] three witnesses testified, it's your testimony that you then again asked the [d]efendant whether he was electing to testify or not.

 

[TRIAL COUNSEL]: No. After the three witnesses testified.

 

. . . .

 

The last time because I'm not really certain of the order because it's been a while . . . but I can tell the [c]ourt is the last time my client was asked about testifying was by Judge Furnari on the record. . . .

 

COURT: I'm asking you, [c]ounsel, the last time that you asked him discussed with your client whether he would testify or not, when was that? At the end of the State's case?

 

[TRIAL COUNSEL]: I believe it was at the end of the State's case and probably and I'm not exactly certain, but probably after probably after the alibi witness after every witness testified in the case, my I had a conversation with my client, so

 

. . . .

 

COURT: And where was that conversation?

 

[TRIAL COUNSEL]: At the courthouse.

 

[(Emphasis added).]

 

After considering the testimony adduced at the PCR hearing, the judge issued a written opinion on September 24, 2013 granting defendant's petition. Specifically, the judge explained that she did not find trial counsel's testimony credible.

While the passage of time does fade memories, [trial counsel], when questioned by this court, continued to change her story as to when she informed the Petitioner of his right to testify and how often she did so after unequivocally testifying that she told the Petitioner that he did not need to testify or present alibi witnesses. [Trial counsel] put on an alibi witness, but did not put the Petitioner on the stand.

 

. . . .

 

[Trial counsel] offered no reason why she advised the Petitioner not to testify, aside from the fact that the State has the burden of proof in a criminal case. By her own testimony before this court, she told the Petitioner not to testify and not [to] call alibi witnesses. She said that the jury could have found him to be credible, but not effective. She agreed that the Petitioner proclaimed his innocence throughout the trial and that he had no prior convictions to be impeached by.

 

The PCR judge also discussed defendant's testimony, highlighting salient facts including defendant's otherwise clean criminal record; his asking defense counsel, "When is it going to be our turn?" during the trial; his intention to have given substantially the same account as his alibi witness had he testified; and his reliance on his defense counsel's advice to not take the stand, "because she was the professional."

The PCR judge also considered the State's alternative argument that, even if trial counsel rendered ineffective assistance, Judge Furnari's explicit instructions to defendant during voir dire ameliorated that deficiency, based on State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005). The PCR judge, however, rejected this argument and stated only that:

[Judge Furnari] did not go above and beyond where counsel would have not been necessary to explain the consequences of testifying or not testifying to the Petitioner. The court is not charged with the responsibility of informing a represented defendant of his right to testify, his retained counsel is.

 

[ Citing State v. Bogus, 223 N.J. Super. 409, 424 (App. Div.), certif. denied, 111 N.J. 567 (1988)) (emphasis added).]

 

Consequently, the court found that defendant's trial counsel rendered deficient representation, as she had not "made [defendant] fully aware of his right to testify and the consequences of testifying or not testifying." It also found "that there is nothing in the record to suggest that [defendant] freely waived his right to testify." The PCR judge, however, did not analyze or make any findings regarding whether trial counsel's deficient representation prejudiced defendant's right to a fair trial.

II.

A.

We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in Fritz, supra, 105 N.J. at 52-53. The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" 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).

A petitioner must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992); State v. Zold, 105 N.J. Super. 194, 203 (Law Div. 1969), aff'd o.b., 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970)). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

In our review of a PCR court's determination after an evidentiary hearing, "we are not bound by and give no deference to the legal conclusions of the PCR court," but we will not disturb its factual findings if supported by "adequate substantial and credible evidence." State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005),

B.

The State argues that defendant failed to meet his burden to prove that his defense counsel's representation was so deficient as to trigger constitutional considerations. Defendant maintains that his counsel did not properly apprise him of either the benefits or detriments of not testifying at trial. He argues that without this advice, he was unable to make an informed decision, and that his election to waive his right to testify was invalid. The PCR court held that defense counsel did indeed render deficient representation because she had not provided defendant with sufficient information to make a knowing waiver of his right to testify. We agree.

To prevail on a claim of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2064, 80 L. Ed. 2d at 674. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Counsel's failure to properly advise a defendant about his or her right to testify can give rise to a claim of ineffectiveness of counsel. State v. Savage, 120 N.J. 594, 631 (1990). "It is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." Bogus, supra, 223 N.J. Super. at 423. "Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it." Savage, supra, 120 N.J. at 631.

Here, we are satisfied that defendant met his burden to establish his counsel's substandard performance. During the PCR hearing, defendant testified that he communicated to his trial counsel that he wanted to take the stand and present his account of the events that occurred on the night of the shooting. Defendant stated that he wanted to do this because "he had nothing to hide," and that his testimony would bolster that of his alibi witness, who had previously explained that defendant was not at the scene of the crime. Moreover, when asked why he did not ultimately testify on his own behalf, defendant explained that trial counsel had advised him against doing so. Defendant deferred to her advice "because she was the professional."

The record fails to demonstrate any evidence that trial counsel adequately apprised defendant so that defendant was able to make a knowing waiver of his right to testify on his own behalf. To be sure, factually, there may have been good reasons for trial counsel to advise defendant against testifying. This included not only the fact that she believed his alibi to be of questionable credibility, but also that doing so would have exposed defendant to potentially fatal cross-examination from the prosecutor, who would have questioned defendant why he had the victim's cell phone on his person that night.

Notwithstanding these valid reasons to advise defendant against taking the stand, however, the record is absent of evidence that trial counsel had, at the very least, undertaken efforts to inform defendant of the consequences of exercising his right to testify. Although trial counsel claimed that she asked defendant whether he wanted to testify, she never elaborated about the extent of those conversations, including whether she specifically discussed with him that testifying would open the door to cross-examination about his possession of the victim's cell phone that night.

Accordingly, we believe that counsel rendered inadequate representation to defendant because she failed to sufficiently provide him with information necessary to make a knowing waiver of his right to testify at trial. For these reasons, we find that the PCR court was correct in finding that this omission amounted to deficient representation by counsel.

C.

Having established that trial counsel's performance was deficient, the second prong of the Strickland/Fritz analysis requires a defendant to prove that his counsel's deficient representation prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. He must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Prejudice cannot be presumed "except in cases exemplified by egregious shortcomings in the professional performance of counsel." Fritz, supra, 105 N.J. at 61; see also Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695 ("[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."). The requirement for proving prejudice applies to a finding that trial counsel did not properly advise defendant regarding his right to testify at trial. State v. Bey, 161 N.J. 233, 271 (1999).

Despite that requirement, the PCR court did not undertake an analysis of the second prong. Following the court's finding of ineffective assistance of defense counsel, it concluded that defendant "did not receive a fair trial," vacated defendant's sentence, and ordered a new trial. The PCR judge's opinion does not mention how defense counsel's ineffective assistance prejudiced defendant. In essence, the opinion presumed that the defense counsel's failure to advise defendant of the consequences of testifying or not was per se prejudicial.

Defendant argues that he was prejudiced by not testifying because he "could only have hoped to obtain a favorable verdict from the jury by testifying himself, since he was the only individual who could have provided an explanation to the jury regarding the circumstances under which he came into possession of the victim's cell phone." (emphasis added). However, defendant never provided that explanation to the PCR court. Without it, there was no proof of any prejudice.

Our review of the record satisfies us that trial counsel's deficient representation did not prejudice defendant's right to a fair trial. The record is unequivocal that defendant's testimony would not have produced any new evidence; instead, it would merely have reiterated the testimony of his alibi witness. Second, had defendant testified, he would have opened the door to potentially devastating cross-examination, which would likely have proven fatal to his defense. Defendant therefore failed to demonstrate that trial counsel's error was "so serious as to undermine the court's confidence in the jury's verdict or the result rendered." State vs. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Finally, the record indicates that when Judge Furnari conducted his voir dire of defendant, he questioned him about his decision to not testify at trial. It is true that "[i]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages or doing so or not doing so." Bogus, supra, 223 N.J. Super. at 423. Nevertheless, the our Supreme Court has advised that "the better practice [may be] for a trial court to inquire of counsel whether he or she has advised a defendant . . . of his or her right to testify . . . [o]r, alternatively, to advise defendant directly." Ball, supra, 381 N.J. Super. at 556 (quoting Savage, supra, 120 N.J. at 631) (internal quotations omitted). "This will best ensure that defendant's constitutional rights are fully protected." Savage, supra, 120 N.J. at 631; see also Ball, supra, 381 N.J. Super. at 557 (finding defendant's case not prejudiced because "regardless of whether defendant was advised by counsel, the trial judge fully explained defendant's right to testify, the possible consequences of his choice and the option to have the jury instructed to draw no inference from defendant's choice not to testify").

We are satisfied that Judge Furnari's questioning provided the additional safeguard necessary to ensure that defendant understood his right to testify, even if counsel advised against him taking the stand. Here, during the voir dire, defendant indicated to Judge Furnari that he understood that his choice to testify at trial was his alone, and neither trial counsel nor the court could prevent him from exercising that right.4 He also indicated that he had ample opportunity to talk with his counsel about that decision to testify, and that he was satisfied to not do so. Judge Furnari gave defendant an option to present the appropriate charge to the jury, which would instruct the jury not to draw adverse inferences based on defendant's decision to not testify and defendant accepted that option himself.

We are satisfied that defendant understood he could testify no matter what his attorney advised. We are equally satisfied that trial counsel did not adequately discuss the ramifications of defendant's options. However, we cannot sustain the PCR's court's decision to vacate defendant's conviction and order a new trial as defendant failed to meet his burden to prove that it was more likely than not that the outcome of his trial would have been different if he had testified.

Reversed. Remanded for reinstatement of defendant's judgment of conviction and sentence.

 

 

 

 

1 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).

2 These facts are adopted from our earlier opinion, Ayers, supra, No. A-0372-09 (slip op. at 2-8).

3 As later developed during defendant's PCR hearing, his trial counsel advised him not to call Bronson as a witness. Despite that advice, defendant insisted that Bronson testify, and trial counsel followed defendant's instruction.

4 As previously noted, defendant understood and exercised his right to disagree with his trial counsel as she called Bronson to testify despite her advising defendant against having Bronson testify.