STATE OF NEW JERSEY v. MALIK SIMMONSAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-01
STATE OF NEW JERSEY,
STATE OF NEW JERSEY,
November 26, 2014
Submitted May 7, 2014 Decided
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1284.
Joseph E. Krakora, Public Defender, attorney for appellant Malik Simmons (Andrew J. Shaw,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Raheem Venable (Monique Moyse, 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 briefs).
Appellant Raheem Venable filed a pro se supplemental brief.
The opinion of the court was delivered by
Following a jury trial, co-defendants Malik Simmons and Raheem Venable were convicted of purposeful or knowing murder, N.J.S.A.2C:11-3(a)(1)and(2), and various weapons offenses. In April 2007, the court sentenced Venable to an aggregate term of life imprisonment, subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2, and Simmons to an aggregate forty-year term of imprisonment, subject to NERA. We affirmed the convictions and sentences in a consolidated direct appeal. State v. Venable, 411 N.J. Super. 458, 460 (App. Div.), certif. denied, 202 N.J.347 (2010).2
Defendants filed motions for post-conviction relief (PCR) alleging ineffective assistance of counsel, which were considered by the same judge and denied. We affirm.
We derive the salient facts from our published opinion.
Defendants' convictions were based on the death of Fahiym Phelps as a result of a shooting outside a bar in Irvington on the night of November 27, 2004. Before the shooting, Phelps was inside the bar with his brother, [S.P.], and a cousin, [T.Y.]. During that time, Phelps had a verbal altercation with Venable, which was witnessed by [S.P.], [T.Y.], and the manager of the bar [ ]. The altercation was interrupted by [the manager], who had a security guard, [ ], escort Venable outside the bar, while [the manager] stayed inside with Phelps.
The bar closed approximately ten minutes later, at which time Phelps, [S.P.], and [T.Y.] walked outside, where they encountered Venable and Simmons, both of whom were armed with handguns. Defendants began shooting in Phelps's direction, discharging between six and ten bullets. Six of the bullets struck Phelps, causing fatal injuries.
After the crime, [S.P.] and [T.Y.] identified both Venable and Simmons as the shooters from photographic arrays shown to them by the police. [S.P.] and [T.Y.] also identified Venable and Simmons as the shooters at trial. In addition, although he did not witness the shooting, [the security guard] identified Venable as the person who had the altercation with Phelps and was escorted out of the bar.
Neither Venable nor Simmons testified or presented any witnesses in their defense.
[Id. at 461.]
The following additional facts are relevant to the issues raised in these appeals. S.P. and T.Y. testified extensively on direct and cross-examination with respect to the events of that night and their observations of the shooting. According to S.P., on November 27, 2004, he rode with his friend, who he referred to as "Q", to the Steps bar where they planned to meet Phelps and T.Y. Once he and Q entered the bar they separated. He occasionally saw Q wandering around the bar. He did not know where Q was while Phelps and Venable were involved in the altercation inside the bar.
S.P. testified Phelps and T.Y. followed him out of the bar. Once outside, he stood by the fire hydrant trying to reconnect with Q, but he did not see him until after the shooting occurred. Phelps and T.Y. continued to walk towards the corner of the building. At that moment, he heard gunshots and turned to see Phelps fall to his knees. He saw Venable and Simmons standing in front of Phelps, each shooting him several more times. S.P. said he ran to take cover, but after the shooting stopped he ran to Phelps' side.
T.Y. testified after he and Phelps exited the bar, within seconds he saw Venable, who he referred to as "the lighter one," pull out a gun from his red North Face jacket and shoot Phelps two times. He saw Phelps "go down." He then saw Simmons, the "dark skinned one," shoot him three more times. Together they shot Phelps about six times then ran off. T.Y. said while standing next to Phelps, he was six and one-half to seven feet from Venable, and approximately two feet from Simmons. He stayed next to Phelps with S.P. until the police and ambulance arrived.
The PCR petitions, filed in August 2010, center on alleged newly discovered facts expressed in the certifications authored by Q. He stated
1. I am also known by the name Q.
2. On November 27, 2004, between 12:30 am to around 1 am, I was with [S.P.] at Steps, a bar on the corner of Western Parkway and Woodlawn Avenue in Irvington, New Jersey.
3. At the time of the shooting of Fahiym Phelps, me and [S.P.] were standing next to my car, which was parked on Brookside and Woodlawn away from the area of the shooting.
4. After the shooting, me and [S.P.] ran down to the front of Steps. There we saw Fahiym Phelps lying on the ground. [T.Y.] was with Fahiym.
5. [S.P.] asked [T.Y.] what happened. [T.Y.] responded that he didn't know. He was talking to some girl. When he heard shots, he jogged off until the shooting stopped. He managed only to get a glance of a tall[,] dark[-]skin[ned] guy who ran from the scene with a gun.
6. I later learned that [S.P.] and [T.Y.] had told the police that they saw the shooters. I knew this was untrue but I did not get involved because [S.P.] was my boy and he had just lost his brother and I didn't know the guys who were identified as the shooters.
. . . .
8. Earlier this year, I learned for the first time that Raheem Venable had been sentenced to life imprisonment and would [not] be eligible for parole until after serving almost [sixty-four] years. After that, I just could [not] stop thinking about the fact that he would likely die in prison because of a false identification. I decided that I could no longer remain silent about what I knew was the truth. So I wrote Venable and told him all that I knew and that I would be willing to come to court on his behalf.
9. Prior to seeing him at Steps on November 27, 2004, I had never seen Raheem Venable. My first contact with him was as described in the preceding paragraph [writing to Venable in prison to disclose the aforementioned information].
Although he was S.P.'s friend, Q claimed he never discussed the case with him. In early 2010, upon learning of the sentences defendants' received, Q decided to break his silence and wrote to Venable to tell what he knew.
In support of his alternative request for a new trial, Venable certified that in March and April 2010, he received two letters from Q, a man he did not know. The letters stated that he was the person referred to at trial as "Q" and explained his assertions as set forth in his certification.
Following oral argument, Judge Patricia K. Costello issued a thorough and comprehensive nineteen page opinion, in which she denied defendants' petitions on all issues, except for Venable's claim in which he alleged ineffective assistance of counsel for failing to explain the full sentencing consequences of rejecting a plea agreement. On that sole issue, the judge held an evidentiary hearing. Following that hearing, Judge Costello determined defendants' claims were unsupported and denied PCR in a written opinion and order dated August 1, 2012.
In denying defendants' PCR claim of ineffective assistance of counsel, Judge Costello applied the well-settled two-prong Strickland test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). The court noted that a petitioner must make more than mere bald assertions in support of a request for relief. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In rejecting defendants' claims of ineffective assistance of counsel for failing to investigate Q as a potential defense witness, the judge reviewed the extensive trial record and made these findings and conclusions
[c]ounsel's investigation in preparation for defense was adequate under the circumstances. The record demonstrates that counsel was aware of [Q's] existence, but that there was no reason to believe that [Q] would possess potentially exonerating information. There is no showing that either defendant believed, at the time of trial, that [Q] might have been able to aid in their defense. When both defendants were asked on the record if they were satisfied with their discovery and their representation after the conclusion of the State's case, neither indicated they felt any need to pursue additional investigation. [Q] did not know either defendant, but was instead a friend of the victim, having arrived at the club with the victim's brother. There was no basis to believe he had information to impeach [S.P.] and [T.Y.'s] version of the shooting.
. . . .
Even if defendants did establish a prima facie case that their attorneys' failure to contact [Q] was unconstitutionally unreasonable, they do not demonstrate that their counsels' failure prejudiced them.
They do not assert that, if their lawyers had spoken to [Q], he would have cooperated with them, or testified on the defendants' behalf. They offer no support for their conclusory assertion that, if [Q] had testified to the impeaching statements contained in his letter, his testimony would have created reasonable doubt in the minds of the jurors. The witnesses whose testimony [Q] could have been called to impeach asserted repeatedly that they had witnessed the murder, including in statements to police, in line-up identifications, and on the witness stand. Other state's witnesses corroborated the identity of the shooters through their accounts of the alteration on the dance floor, and the subsequent actions of defendants. Defendants do not satisfy their burden of establishing that, but for counsel's failure to call [Q] to testify, those witnesses would not have been believed, and the result of the proceedings would thus have been different. For this reason, and because defendants fail to establish their attorneys' failure to investigate was unconstitutionally unreasonable, they are not entitled to a plenary hearing on this point.
[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
Turning to defendants' motions for new trials based upon newly discovered evidence, Judge Costello applied the three-pronged test enunciated in State v. Ways, 180 N.J. 171 (2004). The judge determined Q's certification constituted impeachment evidence because he only claims that the State's eyewitnesses, S.P. and T.Y., did not observe what they testified to have seen, and he does not claim that he witnessed the shooting himself. Although the judge recognized that for impeachment evidence to be material there must be a factual connection between Q's assertion and the State's witnesses' testimony at trial, she nevertheless, concluded, "this link does not directly suggest the defendants were convicted wrongly" because
[t]he State provided two eyewitnesses who identified defendants, one of whom knew one of the defendants for years. They produced several other witnesses who identified defendants by clothing, description and/or facial tattoo. All of them had ample opportunity to observe. None of these witnesses were damaged significantly on cross[-]examination. Several did not have any bias toward or against defendants, and were truly independent.
The trial judge determined defendants failed to satisfy the first and third prongs as Q's certification was merely impeachment evidence and there is no evidence to suggest his testimony would change the verdict. See Ways, supra, 180 N.J. at 187. She deemed it unnecessary to address the second prong. Ibid. Accordingly, the judge denied defendants' motions for a new trial.
On appeal, Simmons presents these arguments for review
I. THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS.
A. Trial Counsel's Failure to Conduct a Pre-Trial Investigation.
B. Trial Counsel's Failure to Establish a Record Regarding the Exclusion of the Defendant's Family During Jury Selection.
II. THE PCR JUDGE ERRED IN DENYING THE MOTION FOR A NEW TRIAL BASED UPON THE NEWLY DISCOVERED EVIDENCE FROM [Q].
On appeal, Venable raises the following arguments for review
I. THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
II. [DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO INVESTIGATE A WITNESS PRETRIAL AND FOR FAILING TO OBJECT WHEN THE TRIAL JUDGE CLOSED THE COURTROOM DURING VOIR DIRE.
Defendant Venable also raises three additional issues in a pro se supplemental submission.
I. THE TRIAL COURT'S EXCLUSION OF FAMILY MEMBERS OF THE VICTIMS AND OF THE DEFENDANTS FROM JURY SELECTION DEPRIVED DEFENDANT HIS SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL.
II. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE CLAIM IN POINT I, SUPRA, ON DIRECT APPEAL.
III. THE CLAIMS FOR RELIEF SHOULD NOT BE BARRED BY RULE 3:22-5.
We have considered each of these issues in light of the record, and we conclude they are without merit.
We begin by recognizing that Venable did not indicate in either his notice of appeal (NOA) or the case information statement (CIS) that he was appealing from the April 19, 2012 orders denying his motion for a new trial and his petition for PCR relief. Rather, he stated only his intent to appeal from the August 1, 2012 order, which addressed his issue of ineffective assistance of counsel regarding advice he received on his sentence exposure. Because Venable has not briefed any arguments pertaining to the August 1 order, we are without a specific claim of error supported by record references and relevant law, and cannot consider the issue on appeal. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (holding parties have a duty to justify their positions by specific reference to legal authority). Consequently, we determine that any issues related to the August 1, 2012 order are deemed waived and abandoned. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015); see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011), leave to appeal granted, 210 N.J. 25, 40 (2012).
Moreover, due to Venable's failure to file a proper NOA and CIS, the arguments presented in his briefs relative to the April 19, 2012 order are not properly before us for review. "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)(1) (2015). However, because the State has addressed the arguments, we choose to exercise our discretion and consider the issues on the merits.
Our standard of review of the denial of a PCR is whether the judge's findings of fact were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Echols, 199 N.J. 344, 357 (2009); State v. Arthur, 184 N.J. 307, 320 (2005). In specifically reviewing ineffective assistance of counsel cases, "judicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." Arthur, supra, 184 N.J. at 318-19 (internal quotations and citations omitted). See also State v. Hess, 207 N.J. 123, 147 (2011).
To succeed on a claim of ineffective assistance, defendants 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, supra, 466 U.S. at 687, 688, 694.
An ineffective assistance of counsel claim may occur when counsel fails to conduct an adequate pre-trial investigation. Preciose, 129 N.J. 451, 464 (1992); State v. Savage, 120 N.J. 594, 621-22 (1990). However, counsel has only a duty to act reasonably. See State v. Chew, 179 N.J. 186, 217 (2004) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695) (holding "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary").
In this matter, counsels' performance at the time of trial was reasonable. Neither defendant knew Q, yet counsel came to know that he was good friends with the Phelps brothers. Neither defendant has asserted any facts he may have known pre-trial that could have prompted his attorney to investigate Q as a possible witness for the defense. Defense counsel simply had no reason to believe that Q had information favorable to defendants under the factual circumstances. "A trial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts . . . clairvoyance is not required of effective trial counsel." Dooley v. Petsock, 816 F.2d 885, 891 (3d. Cir. 1987). Moreover, although Q was discussed throughout the lengthy cross-examination of S.P., counsel argued the State's failure to produce Q equated to a failure of proof creating reasonable doubt. Importantly, defendants clearly used Q's absence from trial strategically for their benefits. There was no reason to surmise that calling Q as a defense witness would have been beneficial. We, therefore, conclude defendants have failed to demonstrate their counsels rendered substandard performance, as such they have not satisfied the Strickland/Fritz test.
Defendants contend they are entitled to a new trial based on the information provided in Q's certification. We disagree, and affirm substantially, the denial of these motions for the reasons set forth by Judge Costello. R. 2:11-3(e)(2).
To the extent defendants raise any additional arguments not specifically addressed, they were found to lack sufficient merit
to warrant consideration in our opinion. R. 2:11-3(e)(2).3
1 These appeals, calendared back-to-back, are consolidated for purpose of opinion only.
2 We published the portion of the opinion that discussed defendants' argument that the trial court violated their constitutional right to a public trial. An unpublished supplemental opinion addressing the balance of defendants' arguments issued the same day. State v. Venable and State v. Simmons, Nos. A-5237-06 and A-5527-06 (App. Div. Jan. 29, 2010).
3 We will not address defendants' arguments related to the exclusion of family members and claims that appellate counsel was ineffective for failing to challenge the trial court's exclusion of defendants' family members, as these issues were fully adjudicated on direct appeal. Venable, supra, 411 N.J. Super. 458 at 347; R. 3:22-5.