STATE OF NEW JERSEY v. ANTHONY KIDD

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY KIDD,

Defendant-Appellant.

_______________________________________________________________

May 14, 2015

Submitted December 17, 2014 Decided

Before Judges Waugh and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-11-1492.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Anthony Kidd appeals from the February 12, 2013 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). We affirm.

Following a ten-day trial, a jury found Kidd guilty of second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). Defendant later pled guilty to the charge of certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b).

After appropriate mergers, the court sentenced Kidd to an aggregate term of forty-seven years imprisonment with twenty-eight and one-half years of parole ineligibility. Kidd appealed. We affirmed the conviction but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005). State v. Kidd, No. A-2487-03 (App. Div. Sept. 28, 2005) (slip op. at 3), certif. denied, 185 N.J. 392 (2005). After being resentenced on December 16, 2005, the matter was once again remanded to allow Kidd the right of allocution. On January 8, 2008, the court reimposed the same sentence.

In our opinion affirming the conviction, we outlined the underlying facts relevant to the issues raised on appeal as follows

The State introduced evidence that authorities in Pennsylvania wanted to question defendant in connection with an incident that had occurred in that State. The Trenton police, who had been asked to cooperate with the Pennsylvania authorities and to locate defendant, received information that he was an occupant of a maroon station wagon. When a vehicle matching that description was located, Officers Wittmer and Virella attempted to stop the station wagon. As they did so, the station wagon accelerated and the officers gave chase, activating the patrol car's lights and siren. The station wagon, traveling at speeds of up to forty miles per hour on roads that were covered with ice and snow, proceeded the wrong way on a one way street, eventually fishtailed, and came to rest against a fence.

At trial, the officers testified that an individual matching defendant's description exited the car wearing a blue, hooded jacket and immediately began to fire a revolver at them. He then fled. The officers gave chase but were unable to apprehend the individual.

[Id. at 5-6.]

At trial, Kidd's brother testified for the State. During his direct examination, he stated that he believed Kidd "was [being] sought for something that happened in Philadelphia, something about seven people being killed or something." At sidebar, defense counsel moved for a mistrial arguing that defendant was prejudiced by his brother's testimony. The trial court denied Kidd's motion and reasoned that the jury had already heard about the Philadelphia incident through the testimony of police officers, which it permitted following a Rule 404(b) hearing. In addition, another witness, S.C., referenced it during her testimony regarding a letter she received from Kidd that also discussed the incident. The letter had been admitted into evidence as State's Exhibit S-3 following a Rule 104 hearing.

After denying the motion, the court gave a curative instruction to the jury advising that Kidd had not been charged with any offense in Philadelphia. In addition, in the final instructions, the court charged the jury on "other crimes evidence" stating

Normally, evidence that a defendant has committed a crime or other crimes is not admissible because it has the tendency to suggest that he, therefore, must be guilty of the crimes charged in the present indictment. There are exceptions to the rule. Evidence of other crimes may be admitted for specific limited purposes, such as proof of motive, intent, preparation, plan, or knowledge.

. . . Evidence has also been presented in the form of a letter, State's Exhibit S-3, which the [S]tate contends was . . . directed to [S.C.] for the purpose[] of threatening her or intimidating her and that the letter is evidential of the defendant's consciousness of guilt and constitutes an admission on his part.

In addition, you have heard testimony about an incident in Philadelphia, a murder, and that the defendant was wanted by the police and/or a bail bondsman. It has not been established that the defendant was involved in the Philadelphia incident, and no arrest warrants for him have been issued, nor was he ever charged with such an offense.

You may not use evidence that the defendant is presently incarcerated at Northern State, that he committed a prior crime, that he was awaiting sentencing on two other charges, or that his name was mentioned in connection with any Philadelphia incident as evidence of his guilt in this case. You may, however, consider such evidence for very limited purposes.

The court then explained to the jury how it must limit its use of the information about the Philadelphia incident during deliberations.

On direct appeal, relevant to this petition, Kidd argued

POINT III: THE TRIAL COURT'S CHARGE TO THE JURY REGARDING THE TESTIMONY ADMITTED PURSUANT TO N.J.R.E. 404 (B) WAS INADEQUATE, INACCURATE AND INSUFFICIENT.

We found

[T]he prosecution provided evidence that defendant was wanted for questioning in connection with another incident in Pennsylvania. That evidence was necessary to give context to the actions of both the police and defendant. The trial judge took great pains to explain the nature of the evidence received respecting the incident in Pennsylvania about which the police wanted to question defendant. The judge then limited the purpose for which it . . . was received to an explanation of defendant's intent and motive. There was no objection at trial to the way in which the issue was handled. . . . Our independent review of the instructions given to the jury with respect to the issue of "other crimes evidence" convinces us that the jury was appropriately instructed with respect to this evidence. There was no error, let alone plain error.

[State v. Kidd, supra, slip op. at 8-9.]

In 2006, Kidd filed a timely pro se PCR petition, which was amended by counsel. Kidd later submitted an amended pro se petition and brief, dated April 2009, alleging numerous claims of trial error and ineffective assistance of trial and appellate counsel.1 Oral argument on the petition was held in July 2009. On October 17, 2011, the PCR judge issued a written opinion denying PCR relief and dismissing the petition. The implementing order was entered on February 12, 2013.

The PCR judge determined that the claims related to the Philadelphia incident and the trial court's denial of the mistrial motion, were either barred under Rule 3:22-4, because the claims could have been addressed on appeal; or, precluded under Rule 3:22-5 because they are identical or substantially equivalent to those claims adjudicated previously on direct appeal. State v. Marshall, 173 N.J. 343, 351 (2002). The judge addressed the merits of the claims of ineffective assistance of trial and appellate counsel, and concluded that in each instance Kidd failed to meet the Strickland/Fritz standard by a preponderance of the evidence. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

On this appeal, Kidd raises two arguments for our consideration

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF APPELLATE COUNSEL'S INEFFECTIVENESS FOR NOT PURSUING THE DENIAL OF A MOTION FOR A MISTRIAL REGARDING A WITNESS'S PREJUDICIAL REMARKS.

POINT II

THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CLAIMS NOT ADDRESSED BY THE PCR COURT. (Not Raised Below).

We begin with a review of the legal principles that guide our analysis. In order to establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two-prong test articulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . 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). The defendant must then show that counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, the defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction." Id. at 58. This standard also applies to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

In Point I, Kidd contends that his appellate counsel was ineffective for failing to challenge the denial of the mistrial motion related to testimony of "other crimes evidence." Though Kidd acknowledges that the PCR court correctly noted that we addressed "the 404(b) Philadelphia incident" on direct appeal, he contends the PCR court erred "by joining those points with the separate and distinct argument that appellate counsel was ineffective for not pursuing the mistrial argument" based upon his brother's testimony. We disagree.

The PCR judge found that the panel that heard the direct appeal addressed essentially the "same territory" as that raised in the PCR petition, namely the trial court's consideration of the probative value versus the prejudicial impact of the evidence related to the Philadelphia incident. The present claim alleging that Kidd was prejudiced by his brother's testimony would necessitate an assessment of the same evidentiary rulings already reviewed on appeal.

It is well established that "a defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal." Id. at 515 (citing Jones v. Barnes, 463 U.S. 745, 753-54, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987, 996 (1983)). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. However, if appellate counsel erred by failing to raise this issue, in order to satisfy the second Strickland test and establish prejudice, a defendant would at a minimum need to show that he would have prevailed on the omitted issue. See Gaither, supra, 396 N.J. Super. at 513-14.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court." State v. Harvey, 151 N.J. 117, 205 (1997). A reviewing court would defer to the decision of the trial court because,

[t]he decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[State v. L.P., 352 N.J. Super. 369, 379(App Div.) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 174 N.J. 546 (2002).]

On direct appeal, we determined that the trial court did not err in considering the testimony and that the curative and limiting instructions given by the court were appropriate. Therefore, we find it highly unlikely that any argument by appellate counsel challenging the denial of the motion for mistrial would have been successful. Thus, we agree with the PCR judge that Kidd has failed to satisfy the second prong of the Strickland/Fritz standard that but for counsel's errors the outcome of the appeal would have been different.

As for Point II, we reject Kidd's claim that the matter must be remanded because the PCR judge failed to make separate findings of fact and conclusions of law on each additional point of error raised in his amended petition as required under Rule 3:22-11. After examining the record, the assertions raised in Kidd's brief, and the PCR judge's written opinion addressing these points, we conclude this contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The judge addressed several of Kidd's claims on the merits. Specifically, the judge reviewed trial counsel's decision not to call the police dispatcher and supervisor as witnesses, trial counsel's failure to object to the State's handwriting expert, and appellate counsel's failure to challenge the jury instruction on attempted murder and aggravated assault, noting that the jury acquitted Kidd of attempted murder. We are satisfied that in each instance the judge made adequate findings of fact and conclusions therefore. Accordingly, a remand is not warranted.

Affirmed.

1 Although the opinion states that it is based upon the amended petition submitted by counsel, the judge also addressed the merits of several additional claims raised in Kidd's amended pro se brief.