STATE OF NEW JERSEY v. RENALDO CHAVIS

NOT FOR PUBLICATION WITHOUT THE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.

RENALDO CHAVIS,

Defendant-Appellant.

____________________________________

March 11, 2014

Submitted September 25, 2013 Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4001.

Ferro & Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

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

PER CURIAM

This case returns to us after our remand to the Law Division, Criminal Part, for an evidentiary hearing on one of the issues defendant Renaldo Chavis raised when he first appealed the denial of his petition for post-conviction relief (PCR). In that appeal defendant claimed, among other things, that the State compromised the impartiality of the jury that convicted him of reckless manslaughter, aggravated assault, and a weapons offense by displaying the crime scene sketch of an unrelated homicide; and that the attorney who filed his direct appeal was ineffective for not raising the issue. We remanded for a hearing. Following the remand hearing, the court concluded that the jury had not seen the sketch of the unrelated crime scene and denied defendant's PCR petition. We affirm.

The background of the case is this. A grand jury charged defendant in a five-count indictment with murder, attempted murder, and three weapons offenses for shooting Moresse and Terrell Germany outside a bar in Irvington. Moresse1 survived; Terrell died. A petit jury convicted defendant of the lesser-included offenses of second-degree reckless manslaughter, N.J.S.A. 2C:11-4, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and of one weapons offense, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). For those offenses, the court sentenced defendant to an aggregate custodial term of twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence in an unreported decision and the Supreme Court denied certification. State v. Chavis (Chavis I), No. A-3194-02 (App. Div. Oct. 15, 2004), certif. denied, 183 N.J. 591 (2005).

Two months after the Supreme Court denied defendant's petition for certification, he filed a PCR petition. The PCR court did not conduct an evidentiary hearing, but rather denied the petition based on the parties' briefs and oral argument. Defendant appealed.

On appeal, defendant raised four issues, including the failure of his appellate counsel on direct appeal "to raise the issue of the admission of the unrelated homicide sketch." State v. Chavis (Chavis II), No. A-6326-06 (App. Div. June 28, 2010) (slip op. at 5). During the trial, the assistant prosecutor had shown Moresse an enlarged photograph of the crime scene outside the bar. Either the prosecutor or her investigator had enlarged and mounted the photograph on a poster board, which on the reverse side contained the sketch of the unrelated homicide scene. As we recounted in our opinion remanding for a hearing:

Defendant's trial attorney objected to display of the photograph and its admission into evidence on the ground that the sketch was unrelated to this case and he did not know what it depicted. The trial judge did not respond to that objection.

At the close of Moresse's testimony, defense counsel renewed the objection. He argued: "The back of S 47 has a [h]omicide sketch with another body from another case and I asked that it be removed, Judge. I asked [the prosecutor to do] that when I first saw it. [She] did nothing with it and she paraded this before the jury." The court responded, "It's in evidence." The prosecutor explained that she had tried to "rip it out when [defense counsel] pointed it out, it's not coming off properly." The court noted, "It's in evidence and with that we will say good night and see you in the morning."

Before the exhibits were provided to the jury for use during deliberations, defense counsel and the State acknowledged that the exhibits were "correct." But there was no discussion as to whether the sketch from another homicide had been removed. As the judge had not directed the prosecutor to remove the sketch, defense counsel's admission that the exhibits were "correct" is not informative. Admission with the sketch appended would have been "correct" in the sense that it would have been in conformity with the judge's prior ruling.

[Id. at 18-19 (alteration in original).]

Explaining that "admission of a wholly irrelevant sketch of an unrelated homicide scene raises a serious question about the validity of defendant's conviction," id. at 20, and concluding that defendant had raised a prima facie claim of ineffective assistance of counsel, we remanded for an evidentiary hearing "to permit the trial judge to develop a record and make findings of fact supported by competent evidence before resolving this claim." Id. at 21.

At the evidentiary hearing on remand, the assistant prosecutor who tried the State's case was the sole witness to testify. Prior to the State presenting her testimony, the court remarked "that the burden of going forward . . . is on the State because I don't imagine that the defense has any evidence that it wishes to offer in the course of an evidentiary proceeding relative to the admission of the offending unrelated homicide sketch." Defense counsel acknowledged that the court's assumption was correct. The assistant prosecutor who had tried the case then testified.

The prosecutor explained that she and her investigator enlarged and mounted on poster boards photographs related to defendant's prosecution. Her office did not have a sufficient number of poster boards, so either she or her investigator found a poster board on which to mount the crime scene photo relevant to defendant's case. She showed it to defense counsel while they were off the record, before Moresse testified. Defense counsel pointed out the unrelated homicide sketch on the reverse side, and the prosecutor tried to remove it, but in doing so she would have ripped the relevant photograph. Not wanting to destroy her exhibit, the prosecutor left the relevant photograph on the poster board. During Moresse's testimony, the prosecutor made sure that the jury did not see the back of the poster board containing the unrelated sketch. She "made sure . . . to show just the front of the photo to the jury, not the back of the poster board."

Defense counsel objected to the exhibit being admitted into evidence with the unrelated sketch on the back. Following Moresse's testimony, the prosecutor was able to take the time to remove the unrelated homicide sketch. Although the prosecutor did not recall if she showed the photograph of the crime scene to other witnesses, she did recall that the unrelated sketch "was removed before it was shown to other witnesses, if [she] did show it to other witnesses, because [defense counsel] had no further objections after that." Thus, the prosecutor had removed the unrelated sketch before the exhibit was given to the jury during deliberations. During cross-examination, she reiterated that she did not permit the jury to see the unrelated homicide sketch on the back of the poster board.

After the prosecutor testified, defense counsel told the court, "I think it's imperative that [defendant's trial counsel] be asked to come in and give his version of what he recalls." But defendant's trial counsel had not been asked to testify, so the court decided the case. The court found the prosecutor's testimony credible and further found, as a fact, that the jury had never seen the unrelated homicide sketch. Based on its findings of fact, the court denied defendant's PCR petition and entered an order memorializing its decision. Defendant appealed.

Defendant raises the following arguments for our consideration:

POINT ONE

BASED ON THE REMAND HEARING, DEFENDANT PRESENTED SUFFICIENT EVIDENCE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL SO THAT DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR A NEW TRIAL.

POINT TWO

IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED BECAUSE THE COURT BELOW FAILED TO CONDUCT A COMPLETE HEARING BY REFUSING TO ALLOW DEFENSE COUNSEL TO CALL DEFENDANT'S TRIAL ATTORNEY AND THE COURT MISCONCEIVED THE PURPOSE OF THE REMAND.

Defendant's first point that he presented sufficient evidence of his ineffective-assistance-of-counsel claim has no merit. His claim is based on the supposition that the jury saw the unrelated crime scene sketch. The court found as a fact that the jury did not see the unrelated sketch. We must uphold the court's factual findings if "they could reasonably have been reached on sufficient credible evidence in the record." State

v. Nu ez-Vald z, 200 N.J. 129, 141 (2009); see also State v. Arthur, 184 N.J. 307, 320 (2005). We "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

Here, the court's finding that the jury did not see the unrelated sketch is supported by the evidence, namely, the testimony of the assistant prosecutor who tried the case. The court found the prosecutor's testimony credible. Because the court's factual finding on the dispositive issue is supported by the credible evidence in the record, we uphold it.

Defendant's second point is equally devoid of merit. He argues that the trial court abused its discretion by not allowing defendant to call his trial counsel as a witness at the PCR hearing, and by wrongfully determining that his trial counsel was not ineffective when he was supposed to determine whether the attorney who filed his direct appeal was ineffective. A trial court has discretion to adjourn, or not adjourn, a hearing "to allow a party additional time to secure witnesses." State v. Matarama, 306 N.J. Super. 6, 14 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Here, as in Matarama, defendant "was unable to demonstrate that a further postponement would prove beneficial to [him]." Id. at 14-15. Under those circumstances, the court did not abuse its discretion.

Defendant correctly points out that the PCR court determined that trial counsel was not ineffective, whereas in our previous opinion we addressed the issue in the context of appellate counsel not raising the issue on direct appeal. Chavis II, supra, slip op. at 21. Nevertheless, the PCR court's factual finding disposes of the issue.

To prove ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; accord State v. Fritz, 105 N.J. 42, 58 (1987). This standard applies to a claim of ineffective assistance of appellate counsel as well. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). When defendants establish a prima facie claim of ineffective assistance of counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992).

In the case before us, defendant established in his PCR petition a prima facie case that his attorney on direct appeal was ineffective for not raising the issue concerning the unrelated homicide sketch. Although the trial record did not settle one way or the other whether the jury had seen the sketch, defendant was entitled to a favorable inference as to that issue when the first PCR court was evaluating his petition to decide whether he was entitled to a hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("As in a summary judgment motion, the [PCR] motion judge should review the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim.").

Now, however, defendant has had his hearing. Following the hearing, the court determined that the jury did not see the irrelevant sketch. In view of that finding, defendant cannot establish either that trial counsel or counsel who represented him on direct appeal was ineffective, because he cannot establish the second Strickland prong, namely, that "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.

Affirmed.

1 We refer to Moresse by his first name to distinguish him from his brother Terrell. We mean no disrespect.