STATE OF NEW JERSEY v. RAY JACKSON

NOT FOR PUBLICATION WITHOUT THE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.

RAY JACKSON,

Defendant-Appellant.

_________________________________

May 13, 2014

Argued October 17, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment

Nos. 03-07-0681 and 04-08-1078.

Thomas G. Hand, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hand, on the brief).

Christopher W. Hsieh, Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

PER CURIAM

A jury found defendant Ray Jackson guilty of second-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree impersonating a police officer, N.J.S.A. 2C:28-8b. The jury found defendant not guilty of fourth-degree stalking, N.J.S.A. 2C:12-10b, and was unable to reach a verdict on the remaining charges, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); second-degree robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:11-3a(1) and 2C:5-1; third-degree attempt to hinder prosecution, N.J.S.A. 2C:29-3b(3) and 2C:5-1; and conspiracy to commit murder, N.J.S.A. 2C:11-3 and 2C:5-2.

The judge sentenced defendant to an extended term of twenty years on the burglary conviction subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conviction for impersonating a police officer, the judge sentenced defendant to a consecutive eighteen-month term with nine months of parole ineligibility. We affirmed defendant's convictions and sentence, State v. Jackson, No. A-0148-07 (App. Div. Mar. 1, 2010), and the Supreme Court denied certification, 203 N.J. 438 (2010).

Defendant's appeal is from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel. Because the judge's decision denying the petition is supported by the record and in accord with controlling law, we affirm.

Posing as an immigration official, defendant gained entry to the apartment shared by a twenty-two year old woman and her husband in Paterson. According to the young woman, defendant sexually assaulted her and stole her jewelry. Based on his conduct following the burglary and sexual assault, defendant was also charged with stalking. In a separate indictment, defendant was charged with several offenses, including attempted murder, stemming from his alleged solicitation of someone to kill the victim while defendant was awaiting trial on the first set of charges. The charges in the second indictment were joined with the first indictment and tried together with the result we noted above.

No physical evidence linked defendant to the crimes. He was apprehended based on cell phone records of calls made to the victim and a sketch developed on the basis of her detailed description. Defendant declined to make any statement to the police, and he unsuccessfully moved to suppress the seizure of his cell phone and the victim's identification resulting from a photo array. Defendant was successful in suppressing testimony regarding a show-up conducted after the array. Defendant did not testify at trial. His brother testified that he took defendant's cell phone, which he gave to a drug dealer during the period in which the calls were made to the victim, and retrieved it from said drug dealer for return to his brother without his brother's knowledge. The manager of defendant's health club testified that defendant swiped an entry card at the health club shortly around the time that the victim was assaulted. One of defendant's cellmates testified that defendant told him that he used his swipe card at his gym to establish an alibi.

After waiving his right to a hearing in the PCR proceeding, defendant argued that his trial counsel was ineffective for failing to argue that the police did not follow the Attorney General Guidelines in conducting the photo array; failed to cross-examine the victim at the Wade1 hearing regarding the victim's several different descriptions of defendant; and failed to request an adverse inference charge after the investigating detective testified he destroyed his notes upon completion of his report. Defendant argued that his appellate counsel was ineffective for failing to appeal the trial court's decision to deny defendant's motion for a jury view of the route from the victim's apartment to defendant's health club. Following argument, Judge Reddin denied the petition in its entirety.

Defendant renews those arguments on appeal and adds two arguments not raised to the PCR court, that appellate counsel was ineffective for failing to argue that the detective took defendant's cell phone before he was placed under arrest and that the photo array was not performed in accordance with the Attorney General Guidelines.

To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record.

Judge Reddin not only heard defendant's PCR application, he presided over his trial and decided the pre-trial motions. Further, a review of the transcript of the judge's oral decision on the PCR application makes clear that the judge reviewed the transcripts of those motions and the trial testimony in considering the issues defendant raised on PCR. The judge noted that the case was tried exceptionally well on both sides. Although no physical evidence linked defendant to the crimes, other evidence of defendant's guilt, notably the remarkable likeness of the police sketch to defendant and the extensive cell phone evidence, was overwhelming.

The judge commented on the professionalism of the police in conducting the photo array at the time of the Wade hearing. The Attorney General Guidelines had only been in place for eighteen months at the time of the array. Although the officer conducting the array allowed the victim to view all six photos simultaneously instead of sequentially as specified in the Guidelines, the judge was satisfied "that it was a fair and excellent process." He found the officer who conducted the array credible and that his failure to have the victim view the photos one-at-a-time did not inject any suggestiveness or improper influence into the process.

Moreover, the judge noted the impossibility of ignoring the uncanny likeness of the police sketch to defendant, which the judge described as "for all intents and purposes, . . . a photograph of [defendant] Ray Jackson." A police artist drew the sketch from the victim's description of her attacker well before she identified his photograph. The judge concluded that the combination of the array and the sketch "obliterates any argument that this identification process was in any way marred."

As to defense counsel's failure to cross-examine the victim at the Wade hearing on the discrepant descriptions she provided of defendant, the judge concluded that the decision was legitimate trial strategy by an effective defense lawyer. The judge concluded that the cross would not have inclined him to suppress the identification in light of the other evidence adduced at the hearing. Not employing it allowed counsel to very effectively cross the victim at trial on the topic before the jury, without the preview the Wade hearing would have provided. Defense counsel relied heavily on that testimony in summation.

Judge Reddin rejected defendant's argument that counsel was ineffective for failure to ask for an adverse inference charge after the detective testified that he destroyed his notes upon completing his report. Although Judge Reddin noted that he raised the issue at trial in light of the Supreme Court's comments in State v. Cook, 179 N.J. 533, 542 n.3 (2004), and State v. Branch, 182 N.J. 338, 367 n.10 (2005), disapproving of the practice, he concluded that he would not have given the adverse inference charge had defense counsel asked for it based on the facts. He noted that the Court did not mandate preservation of such notes until five years after this case was tried, in State v. W.B., 205 N.J. 588, 608 (2011), and even then made its ruling prospective to allow police departments thirty days to conform their practices. Most important, the judge observed that the Court noted that not every instance of such conduct would necessitate an adverse inference charge in light of other evidence. Id. at 609 n.10. The judge concluded that even viewing the issue in hindsight, a request for the charge would not have altered his thinking or the outcome of the trial.

The judge found that trial counsel, far from falling below an objective standard of reasonableness, performed exceptionally well with a very difficult case. Defense counsel's skill, in the judge's view, was reflected in the result he obtained for his client. The judge likewise rejected defendant's argument that appellate counsel was ineffective for failing to argue that the trial court erred in denying the request for a jury view of the route from the victim's home to defendant's gym. The judge found that the number of variables involved, such as traffic, route, time of day, and whether one was traveling by car or, as the jury would, in a bus, made a jury view wholly inappropriate. The judge found the argument so lacking in merit that including it in an appellate brief would border on frivolous. Accordingly, the judge denied defendant's petition in its entirety.

Our review of the record, the applicable law, and the arguments of counsel convinces us that the judge carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his counsel was substandard or that, but for the alleged errors, the result would have been different. Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Accordingly, we affirm substantially for the reasons expressed by Judge Reddin in his thorough and thoughtful oral opinion.

We need not consider defendant's arguments not raised in the trial court. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Having done so, however, we conclude that neither is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's argument that the detective lied in testifying as to when he seized defendant's cell phone based on the detective's answer in defendant's subsequent 19832 action in federal court is especially specious. Judge Reddin considered and rejected that the array was not in accord with the Attorney General Guidelines in considering defendant's other challenges to the Wade hearing. Finally, we reject defendant's argument that we remand for an evidentiary hearing on the petition. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462-64 (1992).

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 42 U.S.C.A. 1983.