STATE OF NEW JERSEY v. MOSES B. LOCKETT

NOT FOR PUBLICATION WITHOUT THE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.

MOSES B. LOCKETT, a/k/a MOSES

BERNARD LOCKETT, MOSEES B. LOCKETT,

MOSES BARNARD LOCKETT,

Defendant-Appellant.

____________________________________

June 23, 2014

Submitted February 3, 2014 Decided

Before Judges St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-02-0192.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Moses B. Lockett appeals from the denial of his petition for post-conviction relief (PCR). Although he was acquitted of murder at trial, he claims his trial counsel was ineffective. We affirm.

I.

We related the facts in detail in affirming defendant's conviction on direct appeal. State v. Lockett, No. A-3835-07 (App. Div. Apr. 6, 2010), certif. denied, 203 N.J. 438 (2010). We summarize the facts here.

On the morning of March 22, 2005, defendant took his grandson to school. There he encountered Lavon Walls (Lavon), the wife of Elliot Walls (Walls). Defendant knew the couple. As Lavon kissed her child goodbye, defendant jokingly asked her, "what about me?" That afternoon, defendant visited Walls' store, and Walls confronted defendant, saying Lavon told him about defendant's earlier comment. Defendant testified that Walls appeared angry and warned him not to say "crazy things" to his wife again, or else he would "break [defendant's] jaw."

Defendant regularly hosted card games in his basement. That afternoon, another acquaintance, Anderson Reid1, repeatedly phoned defendant about hosting a card game for the usual group, which included Walls, Terrence James, and Larry McLeod. After Reid's second call insisted that the group was coming over, defendant retrieved a loaded gun from his bedroom dresser. He was also carrying a knife.

Although defendant did not play in the card game, he kept 10% of the winnings as the host. Once the game ended, defendant asked Walls to pay his $20 debt. Walls declined, telling defendant to get the "f--- out of his face." Defendant told Walls "well you be here when I come back," and went upstairs.

Shortly thereafter, defendant and Walls argued and struggled with each other in the front yard. When defendant brandished a metal object in his hand, Walls responded, "oh, you wanna play with knives," and pulled a razor knife out of his pocket. As Reid and James separated the combatants, Walls grabbed defendant and said, "I should have gave you a buck fifty," meaning 150 stitches. Reid then attempted to calm Walls down.

Several eyewitnesses saw defendant reappear holding a gun. Walls said "now what you gonna do with that? Don't be crazy." Defendant raised the gun and fired it, injuring McLeod with the stray bullet. Reid and the others fled, but Walls, holding the razor knife, ran towards defendant and began to cut him. Defendant fired several more shots and struck Walls. Walls stumbled, fell to the ground, and died shortly thereafter with six bullets in his arms, neck and abdomen.

Reid flagged down a passing police car. An officer entered defendant's house after seeing blood on the steps, and found defendant bleeding from deep lacerations around his left eye. Another officer found the razor knife near Walls' body. A third officer followed a trail of blood leading to the back of the shed behind the house, and discovered a handgun. Later, officers searched the property and found eight empty shell casings on the path to the shed, and a bloody knife in a dresser in defendant's bedroom. Defendant later admitted that he hid the gun behind the shed, and put the knife in his dresser.

Defendant told police that after the card game, he had gone outside and told the men to leave. He said Walls, angry over defendant's earlier comment to Lavon, said, "I'm going to f--- you up," and then drew a knife and slashed at defendant. Defendant initially did not mention shooting a gun. He next denied possessing or owning a gun or shooting anyone, saying he heard a shot but did not know who fired it. Later, defendant admitted that he was the first to pull a knife, and that he shot Walls before Walls lunged at him with the razor knife.

At trial, defendant claimed that Walls threatened him with the razor knife, that he then pulled his own knife, and that he drew and fired his gun while Walls slashed his face.

Defendant was acquitted of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one); instead, the jury convicted defendant of the lesser-included offense of second-degree manslaughter committed in the heat of passion resulting from reasonable provocation, N.J.S.A. 2C:11-4(b)(2). He was also acquitted of first-degree transferred-intent attempted murder against McLeod, N.J.S.A. 2C:2-3, 2C:5-1, and 2C:11-3(a) (count two); and fourth-degree aggravated assault against McLeod, N.J.S.A. 2C:12-1(b)(4) (count five). The jury also convicted defendant of second-degree transferred-intent aggravated assault against McLeod, N.J.S.A. 2C:2-3, 2C:12-1(b)(1) (count three); fourth-degree aggravated assault against Walls, N.J.S.A. 2C:12-1(b)(4) (count four); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count eight); third-degree hindering prosecution by hiding the gun, N.J.S.A. 2C:29-3(b)(1) (count nine); and fourth-degree maintenance of a gambling resort, N.J.S.A. 2C:37-4(a) (count ten).

On September 21, 2007, the trial court merged counts six and eight into counts one and seven, respectively. The court then sentenced defendant to eight years in prison, with a consecutive five-year prison term on count three. Both sentences were subject to the 85% parole disqualification provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed concurrent terms of incarceration of one year on count four; four years on count seven; three years on count nine; and time already served on count ten.

Defendant appealed. We upheld his conviction and sentence, and the Supreme Court denied certification. In October 2010, defendant filed a PCR petition before a different judge. On February 17, 2012, the PCR judge issued an opinion and order denying defendant's petition. Defendant appeals.

II.

To show ineffective assistance of counsel, defendant must meet the two-pronged test of 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). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012).

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. '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 279-80. This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008).

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.

If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

Defendant's appeal raises these points and subpoints:

POINT I- THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel Failed To Adequately Consult With Defendant And To Adequately Investigate His Matter.

B. Trial Counsel Failed To Request A Timely Clawans Charge.

POINT II- THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING TRIAL COUNSEL'S NOT OBJECTING TO PROSECUTORIAL MISCONDUCT DURING THE OPENING AND CLOSING STATEMENTS. (Not Raised Below).

III.

Defendant's first subpoint, is referring to the following claims of ineffectiveness raised in defendant's counseled PCR brief:

TRIAL COUNSEL FAILED TO CONSULT WITH PETITIONER TO REVIEW THE EVIDENCE AND PREPARE POTENTIAL DEFENSES FOR TRIAL.

1. Trial Counsel Failed To Call The Proper Character Witnesses To Testify At Trial.

2. Trial Counsel Failed To Retain Expert Witness Testimony.

3. Trial Counsel's Investigation Of The Physical Evidence Was Ineffective.

4. Trial Counsel Failed To Conduct A Thorough Investigation Into State's Witness Anderson Reid.

Defendant simply asserts that "his claim as to trial counsel's failure to adequately consult with him and to adequately investigate his matter constituted a prima facie case of ineffectiveness," and that the PCR court did not view the allegations "in the light most favorable to defendant." Defendant fails to support these assertions.

The PCR court properly rejected these claims. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant did not supply any such information to support his claims that trial counsel failed to investigate, prepare, or consult with him. Indeed, defendant did not even identify witnesses who could testify that he had a reputation for non-violence, an expert witness who could show that McLeod was shot by an unknown gunman rather than defendant, or witnesses with material, favorable evidence concerning the physical evidence or Reid.

In any event, trial counsel could reasonably decide to call three character witnesses to testify to defendant's reputation for honesty, and focus on defendant's testimony that he shot the gun in self-defense, rather than call these alleged witnesses. "Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront[,]" and thus "a court's review of such a decision should be 'highly deferential.'" State v. Arthur, 184 N.J. 307, 320-21 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Here, trial counsel's decision led to defendant's acquittal of the charge of murdering Walls and of two charges regarding McLeod.

IV.

Defendant's next subpoint concerns trial counsel's alleged ineffectiveness in seeking an instruction allowing an adverse inference for failure to call a witness under State v. Clawans, 38 N.J. 162 (1962). At the charge conference, trial counsel vigorously argued for a Clawans instruction because the State did not call Lavon as a witness. Trial counsel correctly asserted that "'[t]he failure to call a witness available to both parties'" does not preclude the raising of an inference. State v. Hill, 199 N.J. 545, 560 (2009) (quoting Clawans, supra, 38 N.J. at 171).

The trial court declined to give such an instruction because: (1) Lavon could not testify to the events of the crime, but only to Walls' alleged motive to harm defendant because of defendant's earlier comment to Lavon at the school; (2) any testimony from Lavon thus "relates to the defense theory of the case as opposed to any necessary proofs on the part of the State," for which Lavon was not "a necessary witness"; (3) Lavon was not on the State's witness list but was on the defense witness list; (4) as a result, Lavon was present in the courtroom, and "certainly the defense had the ability to call her if they so chose"; (5) Lavon was not peculiarly in the control of one party; and (6) Lavon's testimony would have been cumulative to the testimony of other witnesses who related the interchange at the school and Wall's reaction to it. The trial court ruled that "for all these reasons I find that the request for the [Clawans] charge is inappropriate."

After thus ruling, the trial court also cited the "better practice" that the party seeking a Clawans instruction should "advise the trial judge and counsel . . . at the close of his opponent's case." Clawans, supra, 38 N.J. at 172. The trial court noted that trial counsel advised court and counsel after both parties had rested. The court reiterated it would deny a Clawans instruction "for all those reasons."

Defendant claims trial counsel was ineffective for not seeking the Clawans instruction earlier. It is not clear that the trial court put any significant weight on Clawans' "suggested" better practice of requesting the instruction at the close of an opponent's case, which "has never been denominated a 'requirement.'" State v. Irving, 114 N.J. 427, 443 (1989).

Moreover, as set forth above, the trial court denied the request for a Clawans instruction even before commenting on its timeliness. Further, the trial court based that denial on multiple factors that could justify denial of a Clawans instruction, including that the uncalled witness: was "likely to give favorable testimony to the defendant," State v. Dabas, 215 N.J. 114, 140 (2013); would give "cumulative" testimony that would not "have been superior to the testimony actually developed on that point," State v. Wilson, 128 N.J. 233, 244 (1992); was not "'peculiarly within the control or power of only the [State],'" Hill, supra, 199 N.J. at 561; and "was not necessary to [the State's] case," State v. Swed, 255 N.J. Super. 228, 245 (App. Div. 1992).

Thus, as the PCR court noted, "there is no evidence to suggest that the [trial court] would have granted a timely request." Nor did defendant show a reasonable probability that a successful request for a Clawans instruction would have changed the verdicts, particularly as the jury did find passion-provocation manslaughter instead of murder. Because defendant failed to show a reasonable likelihood of success, he did not demonstrate a prima facie case.

V.

Defendant's final point asserts the PCR court failed to review his allegations that trial counsel was ineffective for not objecting to improper comments in the prosecutor's opening and closing statements. The PCR court simply ruled:

While this Court makes no determination as to whether competent trial counsel should have objected to certain statements made by the prosecutor during opening and closing arguments, failure to do so at a few specific points during the trial would constitute a trial mistake and not an egregious error depriving the petitioner of [a] fair trial.

The State agrees the PCR court did not make findings of fact.

Under Rule 3:22-11, a PCR court must "make specific fact findings as required by Rule 1:7-4(a) and state his or her conclusions of law." State v. Thompson, 405 N.J. Super. 163, 172 (App. Div. 2009). "Anything less is a 'disservice to the litigants, the attorneys, and the appellate court.'" Ibid. (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).

The PCR court "'need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.'" Marshall, supra, 148 N.J. at 261 (quoting Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699). Although the PCR court could have more clearly stated that it had examined and found no prejudice from the dozen comments in the prosecutor's opening and closing challenged in defendant's counseled PCR brief, we have reviewed those comments and agree with the PCR court's ultimate conclusion. See Harris, supra, 181 N.J. at 419-21; State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); see also State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971).

Defendant has failed to show that trial counsel was ineffective for failing to object to any of the prosecutor's comments during opening and closing. "Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009). A prosecutor is "entitled to argue the merits of the State's case 'graphically and forcefully,' and is not required to present those arguments as if he were addressing a lecture hall." State v. Smith, 212 N.J. 365, 403 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

"A prosecutor in her opening statement may state only those facts that she intends to prove in good faith[,]" and "also may argue all inferences that properly may be drawn from those facts." State v. Timmendequas, 161 N.J. 515, 577 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Here, the prosecutor commented in opening: "You've probably heard psychologists or other people talk about the two responses most individuals have to extreme stress, to extreme trauma, the fight or flight syndrome." The State does not claim that the prosecutor intended to introduce such psychological evidence. It is unclear that the "fight or flight" comment "was an acceptable reference to a matter of common knowledge." State v. Kennedy, 135 N.J. Super. 513, 527 (App. Div. 1975).

However, the comment could not have prejudiced defendant. The prosecutor solely used it to preface her observation that, after defendant's first gunshot, some individuals ran for cover and chose "flight," but "Walls chose fight" and charged at defendant with the razor knife. Walls' choice to fight, and his reasons for doing so, were the subject of ample eyewitnesses' testimony and other evidence, much of which supported the prosecutor's comment that Walls was responding to the extreme stress of defendant's attack. See State v. Engel, 249 N.J. Super. 336, 381 (App. Div.), certif. denied, 130 N.J. 393 (1991). We have no doubt that the jury decided the case based on that evidence, and not on the prosecutor's comment, particularly as the trial judge repeatedly instructed the jury that the attorneys' statements were not evidence. See Timmendequas, supra, 161 N.J. at 578.

Defendant challenges other statements in the prosecutor's opening, but we find that they were not inflammatory and were supported by the evidence. Defendant challenges the prosecutor's inferences about defendant's mental state, but such comments are appropriate if the prosecutor intends to introduce evidence from which such a reasonable inference can be drawn. See State v. Hipplewith, 33 N.J. 300, 309-10 (1960). Defendant attacks the prosecutor's statement that Walls' "bark was worse than his bite," but the prosecutor could comment on the evidence "relating to the victim's character and personality [which was] probative of critical aspects of the trial, e.g., defendant's assertion of self-defense or provocation." State v. Williams, 113 N.J. 393, 451 (1988).

Defendant argues that the prosecutor's comments in closing impugned defense counsel's closing, and suggested that the jurors would be uneducated unless they convicted defendant. However, a "prosecutor may respond to defense claims, even if the response tends to undermine the defense case." State v. Nelson, 173 N.J. 417, 473 (2002); see State v. Patterson, ___ N.J. Super. ___, No. A-2055-10 (App. Div. May 9, 2014) (slip op. at 14). In particular, the prosecutor could respond to the defense argument that conviction would be "illogical" by arguing that the question was not complicated and by asking the jurors to use their common sense. See State v. Anderson, 127 N.J. 191, 205 (1992) (the jury is "'the embodiment of the common sense . . . of society'"); State v. Gould, 123 N.J. Super. 444, 448 (App. Div.), certif. denied, 64 N.J. 312 (1973) ("Jurors are expected to use their common sense and experiences in evaluating evidence and arriving at a verdict.").

Accordingly, "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object to the comments . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial . . . counsel, the outcome would have been different." Echols, supra, 199 N.J. at 361. Defendant's remaining arguments are without sufficient merit to warrant further discussion. See R. 2:11-3(e)(2).

Finally, we reiterate that trial counsel's representation led to defendant's acquittal of murder and other serious charges. "'The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt.'" Allegro, supra, 193 N.J. at 367. Here, defendant failed to show his trial counsel was ineffective.

Affirmed.

1 Reid is also referred to as "Andy Reed" in the record.