STATE OF NEW JERSEY v. LAVONTA BASS

NOT FOR PUBLICATION WITHOUT THE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.

LAVONTA BASS,

Defendant-Appellant.

_________________________________________

September 25, 2014

Submitted September 9, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-08-1051.

Michael B. Campagna, attorney for appellant.

Grace H. Park, Acting Union County Prosecutor,attorney forrespondent (Kimberly L.Donnelly, SpecialDeputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lavonta Bass appeals from an order entered by the Law Division on January 31, 2012, which denied his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged in Indictment No. 04-08-1051 with 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 aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree possession of a handgun without a permit, N.J.S.A. 2C: 39-5b (count five). In addition, defendant was charged in Indictment No. 04-08-1052 with unlawful possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b. Defendant was tried before a jury.

At the trial, the State presented evidence that around 7:00 p.m. on May 13, 2004, D.J. drove from Rahway to Linden with his cousins, A.L.S. and A.N.S. They were in a Honda Accord. A.L.S. was driving. D.J. was in the front passenger seat, and A.N.S. was seated in the rear. They drove towards A.L.S.'s home on Cleveland Avenue.

Defendant, who is known by the nicknames "V-tay" and "Vontae," was at the corner of Cleveland Avenue and Lincoln Street. He was standing near the automobile of his girlfriend, T.H., who was in the car with her two daughters and her half-sisters, I.S. and T.S. Defendant approached the car and told T.H. to "pull off."

A.L.S.'s car was parked on Cleveland Avenue, across from her residence. The car was facing McCandless Street. She entered her house. D.J. remained in the front passenger seat, and A.N.S. remained in the back seat. After about five minutes, A.L.S. returned to the car. She noticed T.H. drive by slowly. T.H. and T.S. stared at A.L.S. as they passed.

A.L.S. was alarmed and put her car in reverse. A.L.S. intended to turn around, and, as she was doing so, she observed a black male in dark clothing in her rear-view mirror. He was approaching from the rear passenger side of the car. D.J. caught a glimpse of this individual as he approached.

The man sprinted to the side of the car, turned toward D.J. and fired five shots into the car. D.J. leapt away and told A.L.S. to drive away. He told her he had been hit. A.L.S. backed down Cleveland Avenue. The man continued to fire at the car. He then ran toward McCandless Street.

D.J. had been shot in the stomach and on the left side of his body. A.L.S. drove D.J. to his home. He was able to get out of the car but collapsed. The police responded and D.J. was taken to a hospital in critical condition. In the ambulance, D.J. told one of the officers that he had been shot by "Vontae from down Linden." The officer asked D.J. if he knew the shooter, and he said, "Yeah, I know him."

The police questioned D.J. in the hospital. He verbally identified defendant as the person who shot him. He also identified defendant from a photograph and provided the police with written and audiotaped statements. However, D.J. was reluctant to testify at trial, and a warrant was issued to compel his appearance.

At trial, D.J. identified defendant as a person he knew. He acknowledged his voice on the recorded statement and admitted that his handwriting was on a written statement given to the police, but recanted his out-of-court identifications of defendant as the person who shot him. A.L.S. also identified defendant in court, but she did not identify him as the shooter. A.N.S. testified he was unable to identify the shooter.

After the incident, I.S. had provided the police with a sworn statement describing defendant's actions before, during and after the shooting. I.S. also had identified defendant as the shooter from a photograph. She later approached a police detective and attempted to "take back" her statement.

At trial, I.S. identified defendant, but claimed the statement she gave to the police was not true. However, later in the trial, I.S. changed her testimony. She identified defendant in court as the shooter and testified about the events surrounding the shooting.

I.S. said she was in her sister's car and she observed defendant on the street corner. He was speaking with another person and changed into black clothes. Defendant approached the car and told T.H. to "pull off." T.H. drove past A.L.S.'s car and turned onto McCandless Street. I.S. heard gunshots. She saw defendant running down the street with a silver gun.

According to I.S., defendant came up to T.H.'s car and put the gun inside his pants. Defendant got into the car. They drove to a location where defendant gave the gun to another person. Defendant told that individual to give the gun to "somebody." They then drove to Elizabeth. On the way, defendant took off his clothes and threw them out the window.

The next day, I.S. called defendant and told him she was afraid. He said he could not discuss the matter on the phone and later came to her residence. I.S. told defendant how upset she was about the incident. He said "[h]e would do the same" for her and his life was "on the line."

I.S. also said that, after she testified earlier in the trial, she received a message indicating that defendant appreciated what she had done for him. She testified that she understood this to mean he was thanking her "for lying." She said that her testimony now was the truth. She changed her earlier testimony because "no one should take the blame for the actions that Vonte do [sic]."

Defendant presented one witness in his defense, a police detective. He testified that A.L.S. had provided a statement to the police, in which she said she believed T.H. was the driver of the getaway car.

The jury found defendant not guilty of attempted murder but guilty of the other charges. Thereafter, defendant filed a motion for a new trial, which the court denied.

The court granted the State's motion to sentence defendant to an extended term as a persistent offender. On count two of Indictment No. 04-08-1051, the court imposed an extended term of seventeen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

In addition, the court merged counts three and four with count five of the indictment and sentenced defendant to a concurrent term of five years. The court also imposed a consecutive nine-year term, with a five-year period of parole ineligibility, on the weapon possession charge in Indictment No. 04-08-1052. Appropriate fines and penalties were imposed.

Defendant later filed a motion for reconsideration of his sentence, which the court denied.

II.

Defendant appealed from the judgment of conviction and raised the following issues for our consideration

POINT I

THE TRIAL COURT'S EXCLUSION OF EXCULPATORY EVIDENCE, INDICATING THAT AN EYEWITNESS TO THE SHOOTING MADE A PHOTOGRAPHIC IDENTIFICATION OF SOMEONE OTHER THAN DEFENDANT AS THE GUNMAN, DEPRIVED DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND., XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III

THE UNNECESSARY INTRODUCTION OF THE UNSANITIZED DETAILS OF DEFENDANT'S PRIOR CONVICTIONS TO PROVE HIS FORMER FELON STATUS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I. PARS. 1, 9, 10 (Not Raised Below).

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We affirmed defendant's conviction and the sentences imposed. State v. Bass, No. A-6051-05 (App. Div. Nov. 12, 2008).

On March 1, 2010, defendant filed a PCR petition, seeking to vacate his conviction on two grounds. He claimed that he was denied the counsel of his choice. He also claimed that he was denied the effective assistance of counsel because his trial attorney failed to procure the testimony of S.S. at trial.

The PCR court conducted a preliminary hearing on March 4, 2011. The court found no merit in the claim that defendant was denied the right to counsel of his choice, and determined that an evidentiary hearing should be held on defendant's claim of ineffective assistance of counsel. The court conducted that hearing on August 25, 2011, and thereafter filed a written opinion and order dated January 31, 2012, denying PCR.

On this appeal, defendant raises the following arguments for our consideration

POINT I

DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND SHOULD BE GRANTED A NEW TRIAL.

A. Appellant's Trial Counsel's Performance Was Deficient.

B. There is a Reasonable Probability That, But For Counsel's Unprofessional Errors, the Result of the Proceeding Would Have Been Different.

III.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant must show that his counsel's performance was deficient and he was prejudiced thereby. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

To establish that his or her attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to establish that defendant was prejudiced by the attorney's deficient performance, the defendant must show that 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.

Here, defendant claims that his attorney was deficient because she failed to take sufficient actions to secure the trial testimony of S.S., who had witnessed the shooting from her kitchen window. The police showed S.S. a photo array, which included defendant's photo. She identified a person other than defendant as the shooter.

Defense counsel issued a subpoena for S.S. to testify at trial, but she failed to respond to the subpoena or to attempts by a defense investigator to secure her testimony for trial. Defense counsel then sought to introduce testimony that S.S. had identified someone other than defendant from the photo array.

The trial judge ruled that defense counsel had not made sufficient efforts to have S.S. testify and refused to relax the rules on the admission of hearsay to allow the introduction of S.S.'s prior out-of-court identifications. We affirmed the trial judge's ruling. Bass, supra, slip op. at 8-9.

At the evidentiary hearing on defendant's PCR petition, S.S. testified that on May 13, 2004, she was in her kitchen and heard gunshots outside her home. S.S. looked out the window and observed someone on the side of a car. She saw the car back up and the person ran off in the opposite direction of the car. S.S. called the police. She was interviewed the following day, after school.

S.S. testified that she told the detective she did not know what the perpetrator looked like. She admitted, however, that she identified the person in one of the photos as the person she saw. She said she told the detective she "did not see a face" but she was told that she still had to identify "someone."

S.S. further testified that she told the police that the person she saw was a black male, with a medium build. He had "dreads" and was dressed all in black. S.S. said he was wearing a "black hoody." She saw the "back of him as he was running away."

S.S. stated that she had been contacted by the defense sometime prior to the trial but she was away for the summer on vacation. S.S. did not recall speaking to anyone about a subpoena to testify at the trial in August 2007. She was living at the time with her parents. She said no one told her that anyone had come to the house looking for her.

On cross-examination, S.S. testified that it was dark out when she heard the shots and looked out the kitchen window. She did not recall seeing anything in the man's hand. She said she picked one of the photos in the array because she was told to do so, but she never told the police that she was one-hundred percent positive of her identification. She stated that she had no idea who the shooter was. On re-direct examination, S.S. said she selected the photo of the person who "most closely resembled" the shooter.

The PCR judge found that S.S.'s prior identification was inadmissible hearsay and could not have been admitted even if she was considered to be an unavailable witness, thereby foreclosing any claim that defense counsel was ineffective in establishing S.S.'s unavailability. The PCR judge said the only claim that could be made was that defendant was denied the effective assistance of counsel because his attorney failed to produce S.S. to testify at trial.

The PCR judge noted that defendant's attorney had attempted to secure S.S.'s appearance. An investigator for the defense had relayed a message to S.S. that she was going to be called to testify at trial, and a subpoena was issued to S.S., but she could not be located. The investigator also attempted to call S.S., but she failed to respond. Although the trial judge had characterized these attempts as "less than diligent" for purposes of determining whether S.S. was an unavailable witness, the PCR judge found that this did not mean counsel provided ineffective assistance.

The PCR judge noted that S.S. was not simply a reluctant witness. She was, in fact, "hiding from the defense." Although defense counsel could have made further efforts to locate S.S., such efforts would in all likelihood have "proven futile." The PCR judge said that "[S.S.] did not want to be found." Therefore, counsel's failure to call her as a witness was not ineffective assistance.

The PCR judge additionally determined that defense counsel made a reasonable strategic judgment in limiting her search for S.S.. The judge noted that counsel did not view S.S.'s testimony as crucial to the defense. The defense strategy was based on undermining the other eyewitness identifications of defendant.

The judge said that, in pursuing this strategy, defendant's trial counsel had focused on various factors, such as lack of illumination, but those factors also would have undermined S.S.'s identification. The judge found that it was "not unreasonable" for counsel "to limit her search [for] a witness who she did not feel would greatly strengthen the defense and it [was] appropriate to give deference to her decision."

In addition, the judge determined that, even if defense counsel had been deficient in failing to call S.S., defendant was not prejudiced thereby. The judge noted that S.S. had testified that she did not know the shooter's identity. Therefore, S.S. could neither identify nor eliminate defendant as the perpetrator. S.S.'s testimony also could have undermined the defense because she would have corroborated some of the facts as to which the State's witnesses had testified, and could have opened the door to introduction of further evidence of witness tampering.

The judge added that it was unlikely the jury would have found that S.S.'s testimony was against the weight of the evidence, and unlikely that her testimony would "vitiate the credibility" of the testimony of the other witnesses, upon which the verdict was based. S.S.'s testimony was insufficient to raise reasonable doubt as to whether defendant was the person who committed the charged offenses. The judge concluded that defendant had not demonstrated prejudice "sufficient to undermine the reliability of the trial verdict."
We are convinced that the record fully supports the PCR judge's findings and his conclusion that defendant was not denied the effective assistance of trial counsel. As the judge determined, defense counsel was not deficient in failing to call S.S. as a witness. Even if counsel erred in this regard, defendant was not prejudiced by the error.

Affirmed.