STATE OF NEW JERSEY v. MWANSA CHIPEPO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04812-10T1

A-2850-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MWANSA CHIPEPO,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIETTE CHIPEPO,

Defendant-Appellant.

___________________________

March 27, 2014

 

Submitted December 10, 2013 Decided

 

Before Judges Messano and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0010.

 

Joseph E. Krakora, Public Defender, attorney for appellant Mwansa Chipepo (Karen A. Lodeserto, Designated Counsel, on the brief).

 

 

Joseph E. Krakora, Public Defender, attorney for appellant Viette Chipepo (Joan T. Buckley, Designated Counsel, on the brief).

 

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

Appellant Mwansa Chipepo filed a pro se supplemental brief.

PER CURIAM

Defendants Viette and Mwansa Chipepo,1 husband and wife, appeal from their respective Law Division orders denying their separate post-conviction relief (PCR) petitions. We consolidate their appeals in this opinion for clarity. After considering the facts, the parties' legal contentions, and the applicable legal principles, we affirm.

I.

The record reveals that on April 9, 2004, defendants' neighbor's house in Maplewood was set on fire. Surveillance video maintained by the victim disclosed two individuals pouring gasoline at the base of the house and lighting it on fire. The individuals could not be identified due to their faces being obscured by clothing. When questioned by police, both defendants denied any involvement.

The next day, police located a gas can in some bushes near the crime scene. The can and bag had latent prints that did not match either defendant and remained unidentified. The police then discovered that gas cans of the same manufacturer, model, and barcode were sold at a nearby Home Depot store.

The employees of the Home Depot retrieved a receipt from the day of the fire for the purchase of that type of gas can as well as video of the sale. The video revealed that defendants had purchased that type of gas can, along with a lighter, gloves, and garbage bags. When they told police their activities for April 9, 2004, defendants both omitted their trip to Home Depot.

On January 3, 2005, an Essex County grand jury indicted defendants for second-degree conspiracy to commit aggravated arson in Maplewood, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1(a), and second-degree aggravated arson in Maplewood, N.J.S.A. 2C:17-1(a)(2). In the same indictment, the grand jury also charged Mwansa with three additional counts stemming from an incident in Newark, which were severed and ultimately dismissed.

At the beginning of the joint trial in May 2006, the State indicated that it did not intend to prove that defendants actually started the fire, but rather that they were accomplices to the people seen in the video surveillance starting the fire. Defendants' attorneys expressed surprise as they had prepared their case on a direct liability theory, but they did not request an adjournment.

At the end of the five-day trial, the jury found both defendants guilty on both counts. At the sentencing hearing on February 6, 2007, the trial judge, Judge Michael L. Ravin, sentenced Viette to five years incarceration and Mwansa to eight years incarceration.

II.

On direct appeal, Viette raised numerous points alleging the prosecutor's opening statement and summation were prejudicial, the verdict was against the weight of the evidence, a judgment of acquittal should have been granted, and the sentence was illegal and excessive. On July 26, 2010, we affirmed Viette's conviction, but remanded the case for a correction of the judgment of conviction. State v. Chipepo, A-3756-06 (App. Div. July 26, 2010). The Supreme Court denied certification on January 18, 2011. State v. Chipepo, 205 N.J. 79 (2011).

On April 8, 2011, Viette filed a timely pro se PCR petition in which she raised the following:

POINT I: THE INDICTMENT IS THE PRODUCT OF POLICE AND PROSECUTOR MISCONDUCT BEFORE THE GRAND JURY PROCEEDINGS SO MUCH SO THAT THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR AND DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AND A FAIR TRIAL BEFORE AN IMPARTIAL JURY, CONTRARY TO THE UNITED [STATES] AND NEW JERSEY CONSTITUTIONS.

 

POINT II: THE DEFENDANT WAS DENIED HER RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, RIGHT TO A FAIR TRIAL AND TO THE DUE PROCESS OF LAW UNDER THE UNITED [STATES] AND NEW JERSEY CONSTITUTIONS. TRIAL COUNSEL'S MISJUDGMENT AND FAILURE TO INVESTIGATE RESULTED IN AN UNRELIABLE CONVICTION.

 

Viette's counsel filed a brief in support of her PCR petition on August 8, 2011. Counsel raised the following:

POINT I: PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES IS NOT BARRED BY R. 3:22 ET SEQ.

 

POINT II: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

POINT III: PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HER PETITION.

On October 21, 2011, without holding oral argument, Judge Ravin issued a comprehensive written opinion explaining why oral argument was unnecessary, denying the request for an evidentiary hearing, and denying the PCR petition. The judge found that Viette had failed to establish a prima facie claim of ineffective assistance of counsel.

The judge held that the indictment was based on sufficient evidence, and any motion to dismiss the indictment had no reasonable prospect of success. The judge also found that Viette failed to demonstrate any prejudice from her counsel's failure to make a motion for mistrial or adjournment due to the State asserting its theory of accomplice liability rather than direct responsibility.

Judge Ravin rejected Viette's contention that her attorney appeared at trial "unprepared and clueless." Rather, the judge observed, the transcript revealed that trial counsel came to trial prepared. The judge also noted that it was reasonable for defense counsel to believe that the State was pursuing a direct case, even though an accomplice liability theory was also an acceptable theory of the case. Thus, the judge determined that trial counsel's reasonable interpretation and resulting strategy did not rise to the level of ineffective assistance.

In addition, the judge found that Viette failed to establish that counsel's alleged deficiency in failing to get more time to prepare for the accomplice liability theory prejudiced her case. Viette failed to articulate with specificity anything her counsel should have done differently. Instead, the judge found that her assertions were "entirely speculative," and she did not "elaborate exactly how the proceeding would have or could have differed[.]" The judge stated that Viette's arguments were "vague, conclusory, [and] speculative[.]" Thus, Judge Ravin denied Viette's petition without an evidentiary hearing.

On appeal, Viette raises the following:

POINT I: THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH HER POST-CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON COUNSEL'S FAILURE TO PREPARE A DEFENSE TO THE STATE'S THEORY OF ACCOMPLICE LIABILITY.

 

III.

On direct appeal, Mwansa raised numerous issues, including prosecutorial misconduct, admission of prejudicial evidence, and excessive and illegal sentence. On September 10, 2009, we affirmed Mwansa's conviction and sentence. State v. Chipepo, A-0783-07 (App. Div. Sept. 10, 2009). The Supreme Court denied Mwansa's petition for certification on January 14, 2010. State v. Chipepo, 201 N.J. 153 (2010).

On June 21, 2011, Mwansa filed a PCR petition, raising the following in his pro se brief:

POINT I: DEFENSE COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE FOR NOT FILING PRE-TRIAL MOTIONS TO ALLEGE PERJURY, RECKLESS OMISSIONS COUPLED WITH WILLFUL DELIBERATE WITHHOLDING OF UNDERLYING FACTS AND CIRCUMSTANCES OF THE AFFIDAVIT SUBMITTED [IN] SUPPORT [OF] ARREST AND SEARCH OF MR. CHIPEPO, THAT WERE CONTRARY [TO] THE PROVISIONS [OF] U.S. CONST. AMEND. XIV AND N.J. CONST. ART. I, PARA. 7.

 

POINT II: THE INDICTMENT IS THE PRODUCT OF POLICE AND PROSECUTOR MISCONDUCT BEFORE THE TRIAL AND PRETRIAL PROCEEDINGS SO MUCH SO THAT THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR AND DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AND A FAIR TRIAL, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS: U.S. CONST. AMEND. [XIV]; N.J. CONST. ART. I, PARA. 8.

 

POINT III: THE LOWER COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE CASE.

 

POINT IV: INSUFFICIENT EVIDENCE TO SUSTAIN MR. CHIPEPO'S CONVICTION FOR COUNT (1) AND COUNT (2).

 

POINT V: DEFENSE COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE FOR NOT FILING PRETRIAL MOTION TO DISMISS THE INDICTMENT FOR ALLEGED PERJURY AND WITHHOLDING OF EXCULPATORY EVIDENCE BEFORE THE GRAND JURY; THAT THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR AND DEPRIVED MR. CHIPEPO [OF] DUE PROCESS OF LAW.

 

POINT VI: THE APPELLATE DEFENSE COUNSEL [] RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE FOR NOT ADEQUATELY EXAMINING, RAISING, AND ARGUING THE PERTINENT LEGAL AND FACTUAL ISSUES PERTAINING TO THE APPEAL AND FOR NOT COMMUNICATING SUFFICIENTLY WITH PETITIONER TO ELICIT SUPPORT FOR THOSE ISSUES.

 

Counsel for Mwansa filed a brief in support of his PCR petition and raised the following:

POINT I: PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE FILING ON THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS.

 

POINT II: PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS THE ARREST WARRANT/PROBABLE CAUSE TO ARREST.

 

B. TRIAL COUNSEL FAILED TO MOVE TO DISMISS THE INDICTMENT WHICH WAS A PRODUCT OF POLICE AND PROSECUTORIAL MISCONDUCT.

 

C. PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO SEE[K] AN ADJOURNMENT OF THE TRIAL DATE.

 

D. THE LOWER COURT ERRED BY NOT GRANTING PETITIONER'S APPLICATION FOR AN ACQUITTAL.

 

E. THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AS TO COUNTS ONE AND TWO.

 

F. THE CUMULATIVE EFFECT OF ALL THE CONSTITUTIONAL VIOLATIONS DEPRIVED THE PETITIONER A FAIR AND JUST TRIAL.

 

G. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE FOLLOWING ISSUES.

POINT III: ALL ADDITIONAL ISSUES RAISED IN PETITIONER'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT PETITION FOR POST CONVICTION RELIEF.

 

POINT IV: PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE CONSTITUTION.

On May 20, 2011, Judge Ravin heard oral argument and in a thorough written opinion denied Mwansa's PCR petition without granting an evidentiary hearing. The judge found that Mwansa "did not prove that he suffered prejudice by any of the individual allegations of errors by counsel and failed to establish a prima facie claim of ineffective assistance on any ground."

Judge Ravin found that Mwansa failed to explain how counsel's failure to file a motion attacking the sufficiency of the arrest warrant prejudiced him at trial. The arrest warrant was issued for the charges concerning an incident in Newark, which were later dismissed. Regardless, the judge observed that sufficient probable cause existed for an arrest warrant on both the Newark incident and independently for the Maplewood fire incident at issue.

Regarding counsel's failure to move to dismiss the indictment, Judge Ravin determined that Mwansa failed to show how he suffered any prejudice as a result of the alleged omissions or inconsistencies of the grand jury witnesses. The judge also determined that the State's ultimate assertion of accomplice liability was not a willful deception of the grand jury nor did it "constitute misconduct on behalf of the prosecutor such that the resulting indictment was 'manifestly deficient or palpably defective.'" The judge concluded that Mwansa did not meet his burden to prove prejudice.

Concerning Mwansa's counsel's failure to request an adjournment to prepare for the accomplice liability theory, Judge Ravin found that Mwansa's argument was "without doubt, conclusory." The judge pointed out that Mwansa failed to offer any coherent reason that a requested adjournment was needed, would have been granted, or if granted, would have led to a different outcome. The judge also noted, as he presided over the trial, he would have denied an adjournment request.

Judge Ravin also rejected Mwansa's claim of ineffectiveness of appellate counsel. The judge determined that Mwansa suffered no prejudice because the claims his appellate counsel omitted were not appropriate for direct appeal and lacked merit.

On appeal, counsel for Mwansa raises the following points:

POINT I: MR. CHIPEPO IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE

A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO SUPPRESS THE ARREST WARRANT FOR A LACK OF PROBABLE CAUSE.

 

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO DISMISS THE INDICTMENT.

 

C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK AN ADJOURNMENT OF THE TRIAL DATE.

 

D. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

E. CUMULATIVE ERROR.

 

In a pro see supplemental brief, Mwansa raises the following additional arguments:

POINT I: THE COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO PETITIONER TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PARA. 10.

 

POINT II: PETITIONER IS ENTITLED TO A REMAND FOR AN EVIDENTIARY HEARING BECAUSE PETITIONER ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

 

IV.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of "counsel encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel and "'that the deficient performance prejudiced the defense.'" 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).

Under the first prong, we give great deference to counsel's professional performance, and evaluate the decisions made, not with hindsight, but in light of counsel's state of mind at the time. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). "Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.'" Id. at 22 (alteration in original) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

The "second prong is satisfied by a defendant's showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 367 (2008) (internal quotation marks and citations omitted). "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached." State v. Castangna, 187 N.J. 293, 315 (2006).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (citing Preciose, supra, 129 N.J. at 463). However, a court shall not hold an evidentiary hearing if it "will not aid the court's analysis of the defendant's entitlement to post-conviction relief." R. 3:22-10(e)(1). Indeed, an evidentiary hearing need not be granted where "the defendant's allegations are too vague, conclusory, or speculative[.]" Marshall, supra, 148 N.J. at 158. But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record an evidentiary hearing should be held." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

V.

Having considered both defendants' contentions in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Ravin's thorough and cogent written opinions of October 21 and May 20, 2011. We add only the following brief comments.

Defendants' arguments regarding their counsels' failure to anticipate the State's strategy or request an adjournment when the State's theory was different than anticipated lack merit. Their attorneys had full access to all discovery, and prepared their cases based on their evaluation that the State would pursue a theory of direct liability. This evaluation was wholly reasonable in light of the discovery presented and thus was within the "wide range of reasonable professional assistance[.]" Allegro, supra, 193 N.J. at 366 (internal quotation marks and citation omitted). In addition, although counsel was initially surprised by the State's theory, it is clear from the record that counsel was amply prepared and vigorously questioned all witnesses. The State's alternate theory of the case did not change the circumstantial evidence presented by the State, and that evidence was forcefully challenged by defense counsel.

In any event, defendants present no evidence that had an adjournment been requested, it would have been granted, or had it been denied, it would have been a manifest wrong. State v. Miller, 216 N.J. 40, 66-67 (2013), cert. denied, __ U.S. __, __ S. Ct. __, __ L. Ed.2d __ (2014). Defendants' arguments amount to bald assertions lacking any supporting evidence that had their counsel asked for an adjournment, the outcome of their case would have been different. This is insufficient to demonstrate the requisite prejudice. See Cummings, supra, 321 N.J. Super. at 170.

Mwansa's claims concerning the indictment are impossible to fully evaluate as he failed to provide the grand jury transcripts. Of greater importance, his subsequent conviction renders any errors during the grand jury proceeding and resulting indictment harmless. See United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941-42, 89 L. Ed. 2d 50, 56 (1986); State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1996). In addition, Mwansa cannot demonstrate that he suffered any prejudice at trial since the information he claimed was omitted or misconstrued before the grand jury was exhaustively covered.

In sum, from our review of the entire record, and for the reasons stated above, we are satisfied that defendants have not established a prima facie case of ineffective assistance of counsel as they have not shown their trial or appellate attorneys' performances were deficient or that their performances resulted in prejudice to their case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Affirmed.

1 As defendants share a common last name, we will refer to them by their first names; no disrespect is intended.