STATE OF NEW JERSEY v. OMAR TINDELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR TINDELL,

Defendant-Appellant.

_______________________________

January 9, 2017

Submitted October 20, 2016 - Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-01275.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Omar Tindell appeals from a November 6, 2014 order denying his petition for post-conviction relief (PCR). On appeal, defendant challenges the denial of PCR and his request for an evidentiary hearing, raising these arguments for our consideration

POINT I

DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF APPELLATE COUNSEL'S INEFFECTIVENESS FOR FAILING TO PETITION THE SUPREME COURT FOR CERTIFICATION REGARDING THE TRIAL COURT'S INADEQUATE VOIR DIRE OF THE JURORS.

Regarding the first issue, the State concedes the trial judge mistakenly concluded Rule 3:22-5, which precludes PCR review of an issue previously adjudicated, barred defendant's PCR petition. Therefore, consideration remains of defendant's claim directed to appellate counsel's conduct, which defendant asserted was ineffective because he failed to petition the Supreme Court to review the challenges to defendant's convictions. Directing our attention to this claim, defendant asserts he satisfied the requisites for an evidentiary hearing on the issue. Following review of the record and applicable law, we reject defendant's arguments. For the reasons stated, we affirm the order denying defendant's petition for PCR relief.

The State's evidence supporting defendant's conviction for reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), cocaine possession, N.J.S.A. 2C:35-10(a)(1), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), was detailed in our published opinion. See State v. Tindell, 417 N.J. Super. 530 (App. Div. 2011). Accordingly, we need not repeat these facts, but incorporate them by reference. Ibid.

Defendant argues appellate counsel was ineffective for failing to petition the Supreme Court for certification to challenge this court's denial of his claim of trial error. Contrary to his presentation in this appeal, we note defendant did petition the Supreme Court for certification, which the Court denied on March 13, 2013. State v. Tindell, 213 N.J. 388 (2013). The alleged omitted issue involved the trial judge's treatment of possible mid-trial publicity. More specifically, when a daily newspaper containing a report of the trial depicting defendant as a gang member was found in the jury room, the trial judge took steps to discern whether the event had the capacity to prejudice defendant. The judge "declined to conduct [an] individualized voir dire of the jurors" and instead, "questioned [them] collectively." Tindell, supra, 417 N.J. Super. at 564 65.

On direct appeal, we rejected defendant's claim of reversible error, concluding the trial judge "acted reasonably" and well within [his] discretionary authority," when he declined to conduct individualized voir dire of the jurors, id. at 564. We noted the record did

not permit us to ascertain the time of day the newspaper was found, who brought the newspaper into the room, or whether the jurors were ever in the room at the same time as the newspaper. Notwithstanding these deficiencies, we have no basis to conclude that the trial judge erred by not interrogating each juror individually. When he questioned the jurors collectively, the judge did not find any cause or evidence to suggest that any of the jurors had been exposed to the article. However, as suggested by Justice Stein in Bey I [State v. Bey, 112 N.J. 45 (1988)], the better practice to be employed in the future under these circumstances is to conduct an individualized interrogation of each juror, in camera, on the record, and with counsel present to suggest a different line of questioning or preserve for appellate review any objection to the approach employed by the court.

[Id. at 564-65.]

See Bey, supra, 112 N.J. at 86-89 ("If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned and establish whether they are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court.").

In a certification filed in support of his PCR petition, defendant asserted he requested appellate counsel petition for certification to challenge the extreme prejudice wrought by the newspaper article found in the jury room, arguing the voir dire as conducted was improper and ineffective. Defendant maintained reversal was warranted, stating: "I informed my appellate counsel that were dead bang-winner issue [sic] and I wanted them addressed on a petition for certification to the N.J. Supreme Court[,] but appellate counsel failed to do so." In his PCR petition, defendant also requested the opportunity to present his claims during an evidentiary hearing. PCR was denied.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test). To establish a prima facie case of ineffective assistance of counsel

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] 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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

We defer to the motion judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013); see State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interest of justice demand intervention and correction.") (internal quotation marks and citation omitted). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540 41.

Here, defendant argues appellate counsel was ineffective for failing to seek certification to challenge the trial judge's refusal to individually question each jury to ascertain what each knew about the offending newspaper. We reject this premise and conclude defendant's argument is unavailing.

The Supreme Court grants certification "only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court." R. 2:12-4. Further, "[c]ertification will not be allowed on final judgments of the Appellate Division, except for special reasons." Ibid.

Generally, PCR counsel is obligated to identify any argument a defendant seeks to advance. State v. Webster, 187 N.J. 254, 257 (2005). In this context, "[i]f after investigation, counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point." Ibid. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed 2d. at 693). When "there is no basis for reversing [a] conviction on the grounds asserted, there is no basis for finding that defendant was denied the effective assistance of counsel." State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008).

Here, the PCR judge's opinion reviewed the voir dire challenge. He considered the trial record and our opinion affirming the trial judge's finding that no juror was exposed to the prejudicial content of the newspaper article. In that review, we concluded the absence of facts revealing "the capacity to prejudice a defendant," obviated additional intrusion by the trial judge. State v. Harris, 156 N.J. 122, 152 (1998).

The Supreme Court's instructions in Bey highlight the extent of discretion held by a trial judge in similar circumstances. Although the Court advised a "practice of polling the jurors individually . . . is likely to be more effective in uncovering any exposure," it specifically declined to adopt "a fixed rule regarding the court's initial interrogation," because its "form and content . . . is better left within the trial court's sound discretion." Bey, supra, 112 N.J. at 86 n.26 (citations omitted). In this light, the Court settled to the issue, rejecting the need for automatic reversal. Accordingly, had defendant filed his request, discretionary certification review would not be granted. See R. 2:12-4.

We note defendant's PCR petition offered no factual evidence to show the trial judge's findings were erroneous or to demonstrate how tainted information had reached the jury. Defendant offered no basis to conclude "a realistic possibility any information with the capacity to prejudice the defendant may have reached one or more members of the jury" necessitating a new trial. Bey, supra, 112 N.J. at 90-91. In fact, he presents no evidence which would require reconsideration of the voir dire issue. The sole argument stating the trial judge committed reversible error would not have warranted the Supreme Court's exercise of its discretionary jurisdiction. Also important to note, appellate counsel in fact sought certification, although defendant's PCR does not include a copy of the request. Thus, we cannot discern what arguments were presented or omitted. Ultimately, we do not agree certification would have been granted on the voir dire issue. Therefore, we cannot find ineffective assistance of appellate counsel.

Finally, because defendant has not established a prima facie claim of ineffective assistance of counsel, his request for an evidentiary hearing was properly denied. Preciose, supra, 129 N.J. at 462.

Affirmed.