STATE OF NEW JERSEY v. KEVIN B. ROGERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2992-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN B. ROGERS,

Defendant-Appellant.

April 9, 2014

Submitted March 17, 2014 Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1621.

Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Rogers appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Indicted for the murder of Royden Parks, N.J.S.A. 2C:11-3(a)(1) and (2), defendant was convicted of the lesser offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as well as two counts of possession of a weapon (hammer and frying pan) for an unlawful purpose, N.J.S.A. 2C:39-4(d). At sentencing, the court merged the two convictions for possession of a weapon for unlawful purposes into the aggravated manslaughter conviction and sentenced defendant to a term of twenty years, subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's judgment of conviction, State v. Rogers, No. A-1427-07 (App. Div. Dec. 11, 2008) (slip op. at 9), and the Supreme Court denied defendant's petition for certification, State v. Rogers, 198 N.J. 314 (2009).

We recount the facts underlying these crimes as stated in our previous opinion:

On May 10, 2005, defendant and the victim, Royden Parks, became involved in a physical altercation at defendant's home. During the fight, defendant hit Parks in the head with a hammer and frying pan, fracturing Parks's skull and killing him. Defendant attempted to clean up the blood in his house from the killing, and he dragged Parks's body to the street where it was discovered by a passerby.

Physical evidence at the scene confirmed that defendant had killed Parks in defendant's house. The police found drag marks at the rear of defendant's house. After obtaining a search warrant, law enforcement officers entered the house and found blood stains on the floor, carpeting, and walls. DNA testing of the blood on a hammer, carpet, and blue jeans found in defendant's house matched that of Parks. The medical examiner testified that Parks's head had multiple scalp lacerations and skull fractures, and he found crescent shaped wounds consistent with a hammer.

At trial defendant asserted the claim of self-defense. In his tape recorded statement to the police on May 13, 2005, and in his testimony at trial, defendant contended that Parks had been the aggressor. According to defendant, Parks, who was a person known to him, had been using defendant's yard to stash drugs, despite defendant's objections. On the day of the death, Parks entered defendant's residence uninvited and when he was asked to leave, an argument erupted. The confrontation escalated into a fight when Parks grabbed and pushed defendant. During the course of the ensuing struggle, Parks choked defendant and threatened to kill him, so that defendant became fearful for his life. Defendant maintained that he had to use force to defend himself. To buttress his assertion that Parks was the aggressor, defendant presented the testimony of three witnesses who testified to Parks's aggressive character.

[State v. Rogers, supra, slip op. at 1-3.]

Defendant filed a timely PCR petition wherein he claimed primarily that trial counsel was ineffective for failing to object to the jury verdict sheet and then failing to file a post-judgment motion based thereon. Specifically, defendant argued that since the verdict sheet included a question regarding whether or not the homicide victim was an "intruder," it should also "have included additional questions to make it clear to the jury that there were two theories of self-defense they could consider[,]" and that this omission created "clear potential for misleading the jury regarding their ability to consider self-defense for someone who was not an intruder."1

Defendant waived oral argument and after considering the record as well as the submissions of both counsel, the PCR court denied defendant's petition on both procedural and substantive grounds. As to the former, the court found defendant's present claims barred under Rule 3:22-4 because "all of counsel's alleged derelictions relate to things he said (or failed to say) during the course of the trial[,] [and] [n]one of the alleged derelictions would have been beyond the appellate panel's competence to evaluate based on the record that was before them."

As to the merits, the court found there was no need "for trial counsel to have asked for additional questions on the verdict sheet 'to make it clear that there were two theories of self-defense that [the jury] could consider[,]'" and that "even if it was an error, [it] was [not] so serious that the 'counsel guarantee' of the Sixth Amendment was thereby rendered

nugatory . . . ." The court explained further:

On its face, the jury question which gives rise to PCR counsel's constitutional concerns is a question which implicitly acknowledges that there were two theories of self-defense on which the jury had been instructed. A fair reading of the jury charge shows that [the] [j]udge['s] point was that the fulcrum for determining which self-defense theory applied -- if either one applied -- was an initial determination as to whether Mr. Parks was an 'intruder.' If he was an intruder, then [defendant] could rely on the broader 'defense of dwelling' theory. If Mr. Parks was not an intruder, then the jury charge was clear that only the generic [N.J.S.A.] 2C:3-4 theory was available. Competent lawyers could reasonably and easily differ on the issue of whether some additional instruction on self-defense should have been requested. The fact that this defense attorney made no such request in this case does not come close to raising the spectre of constitutionally ineffective lawyering.

On appeal, defendant raises the following issues:

I. THE PCR COURT ERRED IN FINDING THAT MR. ROGERS' PETITION FOR POST-CONVICTION RELIEF SHOULD BE BARRED UNDER R. 3:22-4.

II. DEFENDANT IS ENTITLED TO A HEARING ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO ADEQUATELY IDENTIFY ROYDEN PARKS AS AN INTRUDER AND THE INITIAL AGGRESSOR DURING EITHER THE TRIAL OR HIS SUMMATION. (NOT RAISED BELOW)

B. TRIAL COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO RAISE APPROPRIATE OBJECTIONS TO THE VERDICT SHEET.

C. TRIAL COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO FILE APPROPRIATE POST-JUDGMENT MOTIONS AFTER THE JURY VERDICT.

III. DEFENDANT IS ENTITLED TO A HEARING ON INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

A. APPELLATE COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO CHALLENGE THE TRIAL COURT'S ERRONEOUS JURY CHARGE AND INSTRUCTIONS ON THE LEGAL DEFINITION OF INTRUDER. (NOT RAISED BELOW)

B. APPELLATE COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO CHALLENGE THE TRIAL COURT'S ERRONEOUS JURY VERDICT SHEET. (NOT RAISED BELOW)

IV. THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT. (NOT RAISED BELOW)

Assuming, without deciding, that these arguments are not procedurally barred under Rule 3:22-4, we nevertheless find them to be substantively without merit, Rule 2:11-3(e)(2).

It is axiomatic that in order for defendant to

obtain relief 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Defendant's first contention that counsel was ineffective for failing to identify the victim Parks as an "intruder" and "initial aggressor" during trial and in his summation to enhance defendant's self-defense claim was never raised in his PCR petition and therefore is not cognizable on this appeal. See State v. Robinson, 200 N.J. 1, 20 (2009); State v. Souss, 65 N.J. 453, 460 (1974); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, the issue lacks merit. Contrary to defendant's contention, trial counsel, in his summation, argued that "Parks entered [defendant's] house uninvited, unwanted and without permission. He was an intruder in [defendant's] house and he assaulted [defendant] in his own living room." Also, on direct examination, counsel elicited from defendant that Parks entered his home without being invited and that Parks "grabbed" and "pushed" defendant "real hard" first. Counsel's summation and defendant's testimony on direct, if accepted by the jury, provided sufficient evidence to support defendant's theory that Parks was an intruder and the initial aggressor. Even though trial counsel's efforts were ultimately unsuccessful, it is clear that defendant failed to establish any errors in this regard that were "'so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment.'" 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).

Similarly unavailing is defendant's claim of counsel's ineffectiveness for failing to object to the jury verdict sheet. Here, during the jury charge, the trial court instructed on three theories of self-defense: (1) self-defense against someone considered an intruder; (2) self-defense against someone not considered an intruder; and (3) imperfect self-defense. The trial court defined "intruder" as "one who is unlawfully in the dwelling, that is, . . . he is not licensed or privileged to be in that dwelling." Defendant contends that trial counsel's failure to address the court's omission of legal definitions for "licensed" or "privileged" constituted deficient performance because competent attorneys, at a minimum, would have ensured the jury was given the Black's Law Dictionary definitions of these terms. However, this bald assertion lacks the "facts sufficient to demonstrate [trial counsel provided] substandard performance[,]" State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), and thus fails to satisfy the performance prong. Other than his conclusory claim, defendant offers nothing to overcome the presumption, under these circumstances, that "the challenged [omission] might be considered sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal quotation marks omitted); see also State v. Castagna, 187 N.J. 293, 314 (2006). On this score, trial counsel's decision to not insist that the jury be given elaborate definitions of the terms "licensed" and "privileged," especially the technical definitions provided in the Black's Law Dictionary, may very well have been done to avoid confusing the jury. "Trial counsel may not be considered ineffective merely because his trial strategy failed." State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.) (citing State v. Davis, 116 N.J.341, 357 (1989)), certif. denied, 169 N.J.609 (2001).

Moreover, as to the prejudice prong, defendant failed to provide any substantive support to establish that using the Black's Law Dictionary definitions of the terms "licensed" and "privileged" would have resulted in a different outcome. Indeed, there was substantial evidence adduced at trial, including defendant's own recorded statement and testimony, that well supports the jury's verdict of aggravated manslaughter.

Defendant also argues trial counsel was ineffective for failing to file appropriate post-judgment motions challenging the verdict sheets' omission of definitions for the terms "privileged" and "licensed." We reject this claim for the very same reasons we found no deficiency or prejudice in counsel's earlier failure to request enhanced definitions of these terms.

Having found neither of the Strickland prongs implicated in trial counsel's challenged omission, appellate counsel may not be faulted for failing to raise this issue on appeal. As for defendant's contention that appellate counsel was ineffective in failing to challenge the jury charge as inadequately instructing on his self-defense claim, this issue was not raised before the PCR court and therefore is not cognizable here. See Robinson, supra, 200 N.J. at 20. In any event, defendant has simply not demonstrated that but for appellate counsel's failure to raise this issue, defendant's conviction would have been reversed.

Defendant's remaining argument that the matter should be remanded for oral argument is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

1 Defendant also argued ineffective assistance of appellate counsel for failing to raise appropriate issues, including the issues identified in his PCR petition, on appeal.