STATE OF NEW JERSEY v. MAURICE GREEN

NOT FOR PUBLICATION WITHOUT THE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.

MAURICE GREEN, a/k/a

QUAZEE E. JOHNSON,

MAURICE M. GREEN,

Defendant-Appellant.

________________________________

April 6, 2016

Submitted December 8, 2015 Decided

Before Judges Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1364 and 06-05-1365.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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).

PER CURIAM

Defendant Maurice Green appeals the denial of his post-conviction relief (PCR) petition. We affirm.

I.

We summarize the relevant trial testimony. Around noon on October 28, 2005, two men in ski masks entered a small convenience store in Newark. One of the men was wearing a green army jacket and a black ski mask, and was carrying a silver revolver (the gunman). The other man stood near the back of the store. The gunman approached the store's clerk, who was working the cash register. Pointing the gun at the clerk's chest, the gunman demanded the money from the register, the money the clerk had in his pockets, and "the bag you have down there." The bag was a black bag with a FedEx logo containing cell phones, batteries and chargers, which the clerk owned and traded with people in the neighborhood. The clerk immediately turned over all the items the gunman demanded. The gunman and his accomplice then fled the store.

The clerk told another store employee that the store had just been robbed. The clerk saw the gunman crossing Springfield Avenue and heading towards South Nineteenth Street. The clerk phoned the police while the other employee pursued the gunman. As he exited the store, the other employee observed the gunman wearing a green army jacket and a ski mask running down South Nineteenth Street, carrying the black FedEx bag, and heading towards a building off South Nineteenth Street.

Officer Darnell Brown Graham came to the store, where the clerk told him he had been robbed at gunpoint by a man in a green army jacket. The other employee directed the officers to the building where he observed the gunman fleeing. Officer Graham observed defendant in the backyard with one arm inside a green army jacket with the other hand in its pocket and a revolver in the same pocket. The officer also discovered "a small bag which contained cell phone parts" in the immediate area. The officers arrested defendant and Derrick Moultrie, who was with him, and transported them to the store.

Officer Graham asked the clerk if he could positively identify either man as the one who robbed him. The clerk identified defendant as the gunman.1 The clerk also identified the silver revolver. The clerk could not identify Moultrie.

Officer Graham testified that, rather than taking the army jacket as evidence, he let defendant wear his army jacket because the weather was chilly. The officer further explained that defendant was placed in a holding cell with Moultrie and several dozen other individuals who were waiting to be processed, none of whom were handcuffed or restrained.

At trial, defendant called Moultrie, his close friend. Moultrie testified that defendant was with him at noon that day and the pair did not go to the store. According to Moultrie, defendant was wearing a red and black jacket, and right before they were arrested, they discovered a small blue bag and a green army jacket lying on the ground. Defendant also called David Barmore, a corrections intake officer, who testified that defendant was wearing a black and red coat when he was processed at the Essex County Correctional Facility on Doremus Avenue. The army jacket was never located.

Defendant was indicted and convicted by a jury for first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Under a separate indictment, the trial judge found defendant guilty of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b).

On the robbery conviction, defendant was sentenced to sixteen years in prison with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the unlawful possession of a weapon conviction, defendant was sentenced to a concurrent five years in prison with an 85% parole disqualifier. The conviction for possession of a weapon for an unlawful purpose merged with the robbery conviction. On the possession of a weapon by a convicted person conviction, defendant was sentenced to a concurrent eight years in prison with a five-year parole disqualifier.

Defendant appealed his October 19, 2007 judgments of conviction, claiming trial counsel was ineffective for not requesting a hearing to challenge the clerk's out-of-court identification under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). We considered and rejected that claim. State v. Green, A-2726-07 (App. Div. Jan. 25, 2011).

Defendant filed a PCR petition on June 9, 2011, again claiming trial counsel was ineffective for not requesting a Wade hearing. After an evidentiary hearing, the PCR court denied defendant's petition in an opinion and order filed on June 3, 2013.

Defendant appealed. We granted his motion for a remand to reconstruct the record regarding defendant's other PCR claims. On December 9, 2014, the PCR court issued a supplemental opinion rejecting defendant's other claims.

Defendant now appeals, arguing

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL IN SEVERAL DIFFERENT RESPECTS.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT IN A TIMELY FASHION TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

C. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT IN A TIMELY FASHION TO THE TRIAL COURT'S CHARGE WITH RESPECT TO REASONABLE DOUBT.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL.

A. APPELLATE COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF COUNSEL'S FAILURE TO RAISE AN ISSUE RELATING TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

B. APPELLATE COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO RAISE AN ISSUE RELATING TO THE TRIAL COURT'S CHARGE TO THE JURY REGARDING REASONABLE DOUBT.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO RAISE AN ISSUE MAINTAINING THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

II.

As the PCR court did not hold an evidentiary hearing on the claims defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (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.

To showineffective assistance of counsel, a defendant must satisfy 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 theSixth Amendment.'" State v. Parker, 212 N.J.269, 279 (2012) (quotingStrickland,supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. 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(quotingStrickland,supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698).

Defendant now claims that trial counsel was ineffective for failing to timely object to prosecutorial remarks in summation, and to the trial court's jury charge on reasonable doubt. However, trial counsel did raise both of these claims in a motion for a new trial, which was denied by the trial court at sentencing. The sentencing court also rejected trial counsel's sentencing arguments that defendant now re-raises.

In a PCR proceeding, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal[.]" R. 3:22-5. "Rule 3:22-5 bars all grounds for relief that previously were adjudicated on the merits." State v. Marshall, 148 N.J. 89, 144, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Thus, "a defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits." State v. McQuaid, 147 N.J. 464, 483 (1997); see, e.g., State v. Marshall, 173 N.J. 343, 351 (2002); State v. Bey, 161 N.J. 233, 293 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

Nonetheless, we must address defendant's argument that his appellate counsel was ineffective for failing to appeal the trial court's rejection of those claims. See Harris, supra, 181 N.J. at 518. However, as set forth below, the prosecutor's remarks, the trial court's reasonable doubt instruction, and the court's sentence, were not reversible error. Therefore, we find no ineffectiveness by trial counsel for not timely objecting the first two claims. We also find appellate counsel was not ineffective for not raising these three claims on direct appeal.

A.

We first address defendant's challenge to the summation. In summation, defense counsel told the jurors that "when you get the evidence, one of the things you'll not have is the mask," because "the person who really did this ran away with the mask." Defense counsel argued the perpetrator "didn't take off with the jacket" because the green army "jacket identifies him." Defense counsel cited Derrick Moultrie's testimony that defendant "was wearing a red leather jacket" when they first went outside and when defendant "was put in the Essex County" Correctional Facility, adding "[w]hat does he need two jackets for?"

The prosecutor responded by making two arguments. First, the prosecutor argued

And where is the mask? I submit to you, ladies and gentleman, the mask is somewhere between [] Springfield Avenue and [] South 19th Street. Where? I don't know. In a sewer, in a bush maybe it's at Der[rick] [Moultrie]'s house. He got rid of the mask. He had more than ample opportunity based on the evidence you heard, and the way things made out to get risk [sic] of the mask.

Later, the prosecutor argued

Now, Derrick Moultrie said when they left the house that day the defendant had a black and red jacket on. I submit to you, that's not true. Because when he robbed the [store] he had a green army jacket on. When he walked down the street with the proceeds of the robbery in his hands he had on a green army jacket. When he was observed by Officer Graham with the gun in his hand he was wearing a green army jacket. And I said to Officer Graham: Officer, that jacket was a key piece of evidence, why didn't you keep it? What did he say? It was cold, I gave it back to him. What happened when he gave it back to him? Him and Derrick were both put in the holding cell together unrestrained. From there they went to the cell block downstairs with if you remember, hundreds of other inmates. Remember, I asked how many people the cell block holds? Hundreds. The reason I asked are they restrained? No, they're not. How easy is it to say: Could you switch jackets with me? You're wearing an item of clothing that is going to incriminate you in a crime, doesn't it make sense to switch it switch it with another inmate in the holding cell, nobody is wiser. And then, at your trial, your attorney can argue that everybody committed the crime had a green army jacket. He doesn't have a green army jacket, so he didn't commit the crime. Ladies and gentlemen, come on. Officer Barmore, the defenses' own witness, told you how common it is. When they get processed into Doremus Avenue, people leave stuff behind all the time. Who's to say if he doesn't switch the jacket with somebody else, he left it. The important thing see is he had the jacket on.

Defendant's trial counsel did not object to these arguments during summation, but did move for a new trial on the basis of the prosecutor's remarks, claiming the prosecutor had argued "inferences on top of inferences on top of inferences." However, the trial court found the claim without merit, and in particular noted

The testimony in the record develops the issue of the jacket and I think as argued by the State that there's a fair inference that could have been drawn, and the Prosecutor in the summation was arguing and articulating that the jury should draw that inference.

Even when a defendant objects to a prosecutor's argument, "'to 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, 438 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Here, the prosecutor's remarks were neither "egregious" nor improper. As set forth above, the record contained facts upon which such reasonable inferences could be drawn.

"[A] prosecutor is afforded considerable leeway to make forceful arguments in summation." State v. Bradshaw, 195 N.J. 493, 510 (2008). "Even so, in the prosecutor's effort to see that justice is done, the prosecutor 'should not make inaccurate legal or factual assertions during a trial.'" Ibid. (citation omitted). "Rather, a prosecutor should 'confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Ibid. (citation omitted). "So long as the prosecutor's comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments 'will afford no ground for reversal.'" Ibid. (citation omitted).

Here, the prosecutor's remarks were based on the evidence and drew reasonable inferences from the evidence. State v. T.J.M., 220 N.J. 220, 236 (2015). Moreover, the prosecutor's "remarks were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Furthermore, the prosecutor made clear he was making an argument from the facts by using the phrase "I submit," which is "a method of prefacing an argument." State v. Cagno, 409 N.J. Super. 552, 604 (App. Div. 2009) (citation omitted), aff d, 211 N.J. 488 (2012).

B.

We next address defendant's challenge to the trial court's final jury instructions. The trial court's opening instructions essentially read to the jury the fifteen-sentence instruction on reasonable doubt in the Model Jury Charge (Criminal), "Preliminary Instructions to the Jury" (2005). The trial court read the last two sentences of the model instruction

If based on your consideration of the evidence, you are firmly convinced that a defendant is guilty of the crime charged, you must find that defendant guilty of that crime. If on the other hand, you are not firmly convinced of a defendant's guilt on a crime charged, you must give that defendant the benefit of the doubt, and find him not guilty as to that crime. (emphasis added).

During the trial court's final charge to the jury, the court essentially read the sixteen-sentence instruction regarding reasonable doubt contained in the Model Jury Charge (Criminal), "Criminal Final Charge: Presumption of Innocence, Burden of Proof, Reasonable Doubt" (1997). The trial court read the last two sentences of the model instruction, but omitted the underlined words from the last sentence

If[] based on your consideration of the evidence[] you are firmly convinced that the defendant is guilty of the crime charged, you must find [that defendant] guilty. If[] on the other hand[] you are not firmly convinced of [a] defendant's guilt, you must give the defendant the benefit of the doubt and find [that defendant] not guilty.

[Ibid. (emphasis added).]

Defendant contends that this missing phrase resulted in the trial court failing to properly instruct the jury on reasonable doubt. Defendant's trial counsel did not object to this omission during trial, but did challenge the omission in his motion for a new trial. The trial court pointed out that it "did give the full word for word verbatim charge in my preliminary instructions," and that the reasonable doubt instructions regarding each substantive offense made clear when the jury must find defendant not guilty. The judge was "satisfied that . . . reasonable doubt[] was covered many times during the course of the instructions" and the omission did not present the jury with an incorrect statement of the law.

As the trial court acknowledged, its omission of this phrase from the last sentence was error. The phrase "'give defendant the benefit of the doubt'" is part of our Supreme Court's "definition of reasonable doubt." Wakefield, supra, 190 N.J. at 469-70 (2007) (quoting State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997)). The Court has "direct[ed] trial courts not to deviate from the definition," and stated that "failure to adhere to the definition, over an objection, runs the risk of reversible error." Ibid. (quoting Medina, supra, 147 N.J. at 61).

However, an omission from the Court's definition can be harmless. In Wakefield, the trial court omitted not only that phrase but the entire last two sentences of the model charge in instructing a capital sentencing jury. Our Supreme Court held that, reading "the trial court's charge as a whole, the absence of these two sentences at the conclusion of the reasonable doubt charge, standing alone, was insufficient to" show "that the reasonable doubt instructions issued by the trial court in any way lessened the State's burden of proof." Id. at 474-75; see also Medina, supra, 147 N.J. at 57-59 (finding a reasonable doubt instruction lacking the last two sentences "passe[d] muster"); State v. Fuqua, 303 N.J. Super. 40, 45 (App. Div. 1997) (finding the use of language "Medina strongly state[d] . . . should not be used" was harmless because "the totality of the charge correctly expressed the reasonable doubt burden").

Here, the omission of the phrase "give that defendant the benefit of the doubt" was harmless for several reasons. First, the omission of the phrase did not change the import of the final sentence, "If on the other hand, you are not firmly convinced of a defendant's guilt on a crime charged, you must . . . find him not guilty as to that crime." Second, the trial court had given the jury the full reasonable doubt instruction, including that phrase, in its opening instructions. Finally, the court's final instructions also gave the remaining fifteen sentences of the reasonable doubt instruction, which were found sufficient in Wakefield.

"The charge to the jury must be read as a whole in determining whether there was any error." State v. Adams, 194 N.J. 186, 206 (2008) (citation omitted). We are "satisfied from our review of the entire record including the trial judge's opening remarks to the jury and final instructions, that the jury was appropriately instructed." State v. Munoz, 340 N.J. Super. 204, 217 (App. Div. 2001).

C.

Finally, defendant complains that his mid-range sentence was excessive because the trial court failed to find any mitigating factors. It is well "'established that mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of post-conviction relief and can only be raised on direct appeal from the conviction.'" State v. Acevedo, 205 N.J. 40, 45-46 (2011) (citation omitted). Moreover, "the mitigating evidence that supports [defendant's] argument" was "presented to the sentencing court by [trial] counsel." Cf. State v. Hess, 207 N.J. 123, 145 (2011).

In any event, the trial court considered but properly rejected trial counsel's arguments that defendant's incarceration would cause serious hardship by separating him from a son he had never seen, that being twenty-five years old was a mitigating factor, or that he was unlikely to reoffend despite his prior firearm conviction and lack of remorse. Appellate counsel was not ineffective for failing to raise those meritless arguments. See State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); see also Jones v. Barnes, 463 U.S. 745, 753-54, 103 S. Ct. 3308, 3313-14, 77 L. Ed. 2d 987, 995-96 (1983).

Therefore, defendant has failed to satisfy the two-prong Strickland standard for ineffectiveness by either trial or appellate counsel on any of his claims. Indeed, defendant failed to "demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Marshall, supra, 148 N.J. at 158. Thus, defendant was not entitled to an evidentiary hearing, which he admits was unnecessary.

Affirmed.

1 The clerk testified that although the gunman was wearing a black ski mask, it was "a little bit clear" and "very tight on the face," and he immediately recognized him as defendant because he knew defendant from the neighborhood. Moreover, defendant had come to the store at least twice a week, and was aware of the contents of the FedEx bag, because he had once asked the clerk if he was selling phones.