STATE OF NEW JERSEY v. STAN BRAXTON

NOT FOR PUBLICATION WITHOUT THE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-4183-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STAN BRAXTON,

     Defendant-Appellant.
___________________________

              Submitted October 24, 2017 - Decided November 16, 2017

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 01-07-0505.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Mark Zavotsky, Designated
              Counsel, on the brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Stephen
              C. Sayer, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant appeals from a January 12, 2016 order denying his

petition      for   post-conviction       relief    (PCR)    after   evidentiary
hearings.      On appeal, defendant maintains he received ineffective

assistance      from     trial     counsel         that    deprived             him     of     his

constitutional right to a fair trial.                    We disagree and affirm.

       Defendant     was    convicted        of    one    count       of    second-degree

aggravated      assault,    N.J.S.A.         2C:12-1b(1),       and    four           counts   of

third-degree aggravated assault, 
N.J.S.A. 2C:12-1b(5), resulting

from    an    altercation       with   several       corrections           officers          while

defendant was incarcerated at South Woods State Prison.                               Defendant

was sentenced to a total of nine years on the charges.

       At trial, defendant alleged he did not assault a corrections

officer.      Rather, defendant testified that he was attacked without

cause    by    several      corrections           officers      in    retaliation              for

defendant's filing of a harassment complaint against an officer.

According to defendant, while he was showering, officers threw his

clothes into the shower and attacked him.

       The trial testimony on behalf of the prosecution offered a

different      version     of    the   events.           According         to    prosecution

witnesses, while showering, defendant exposed himself to a female

corrections officer.            Defendant also made a lewd remark directed

at the female officer via the prison's intercom system.                                        The

prosecution claimed that the officers called to the shower area

asked    defendant     to   exit       the    shower      and   get        dressed.            The

prosecution maintained that defendant refused to comply and lunged

                                             2                                          A-4183-15T3
at one of the officers.        Corrections Officer Stewart Richardson

attempted to intervene and was assaulted by defendant.                Richardson

sustained    an   orbital    fracture       and   deviated   septum    requiring

surgery.

     Defendant's convictions and sentences were affirmed on direct

appeal.    State v. Braxton, No. A-4024-04 (App. Div. May 31, 2006).

The Supreme Court denied defendant's petition for certification.

State v. Braxton, 
188 N.J. 355 (2006).

     Defendant filed his initial PCR petition on October 31, 2006.

On October 9, 2009, the PCR judge denied defendant’s petition

without an evidentiary hearing.         Defendant appealed the denial of

his initial PCR petition.        On November 2, 2011, we reversed and

remanded the matter to the PCR judge to appoint new counsel and

conduct a hearing.          Following our remand, the PCR judge held

evidentiary hearings on three different dates.                 The PCR judge

denied defendant’s petition in a written opinion dated January 12,

2016.

     The PCR judge heard testimony from Dr. Rodolfo Diaz, the

doctor who performed surgery to repair Richardson's nasal injury.

Dr. Diaz was examined as to the initial radiological report finding

no facial fractures and his own medical report finding facial




                                        3                               A-4183-15T3
fractures.1    Dr. Diaz explained the inconsistencies between the

two reports.     Dr. Diaz acknowledged that the initial CAT scan

reported no fractures, but noted that a subsequent addendum by the

radiologist, viewing a different angle of the scan, confirmed the

same injuries identified in Diaz's report.

     Defendant's trial counsel, Demetrius Parrish, also testified

during the evidentiary hearings.      Parrish had limited recall

regarding the trial proceedings and his trial strategy.    The PCR

judge concluded from Parrish's testimony that the defense trial

strategy was self-preservation, with defendant claiming he was

shielding himself against attacks by the corrections officers and

that Richardson's injury was the result of Richardson's contact

with other officers.    PCR counsel asked Parrish why he did not

cross-examine Dr. Diaz about an alleged pre-existing condition

suffered by Richardson. Parrish recalled that he elected to cross-

examine Richardson on the matter rather than Dr. Diaz.

     Richardson also testified during the evidentiary hearings.

He was unable to recall specific details about the incident leading

to his injury.   Richardson remembered that he was injured and had

surgery to repair his nose. He also testified that the handwriting

on the first incident report form was not his, but he acknowledged


1
 The radiologist prepared an addendum to his initial report which
confirmed the presence of facial fractures.

                                 4                         A-4183-15T3
he signed and dated the form.       The first incident report confirmed

Richardson was "struck in the eye/cheek area" but did not mention

difficulty breathing.      Richardson also reviewed a second incident

report and acknowledged that the second form did not indicate he

was having difficulty breathing.

     The PCR judge also heard from defendant.          Defendant testified

that he was harassed by several corrections officers and introduced

into evidence his handwritten grievance regarding his harassment

complaint filed prior to the shower incident.               Defendant also

introduced disciplinary complaints filed against him by different

corrections officers, including Richardson, relating to the shower

incident.    According to defendant, his trial counsel failed to

cross-examine     the   corrections    officers   at   trial    about   those

complaints and reports.       Defendant also testified that he never

discussed   self-defense    with    his   trial   counsel   and   counsel's

inclusion of such a defense during voir dire was "unethical."

Defendant further claimed that trial counsel failed to cross-

examine Dr. Diaz about Richardson's radiological scan indicating

no fractures, and failed to point out a "falsified" section of the

radiologist's addendum report because it was in a different font

type.

     The    PCR   judge   allowed     defendant   to   submit     twenty-six

additional documents into evidence in support of his PCR petition.

                                      5                             A-4183-15T3
The PCR judge also allowed defendant to reopen his direct testimony

to raise two additional issues: conspiracy between defense counsel

and the prosecutor to assert a false defense, and the withholding

of exonerating evidence by counsel.      However, defendant failed to

present any evidence in support of these claims.           The PCR judge

rejected defendant's unsubstantiated and convoluted theories in

support of his additional claims.

     The PCR judge considered written summations from counsel and

defendant.     Defendant's summation attached additional documents

not introduced during the evidentiary hearings.           The PCR judge

considered defendant's additional documents despite defendant's

failure   to   introduce   the   documents   into   evidence   during   the

hearings.

     In his written findings of fact and conclusions of law, the

PCR judge rejected defendant's allegation that Dr. Diaz fabricated

Richardson's facial fractures and conspired with the State to

bolster the case against defendant.          The PCR judge accepted the

testimony of Dr. Diaz as credible as to differences between his

own medical report and the radiologist's reports.

     On the failure to examine whether Richardson had a pre-

existing condition, the PCR judge found that was a trial strategy

decision. It was undisputed that Richardson had a deviated septum,

and trial counsel decided against examining Dr. Diaz on the issue.

                                     6                            A-4183-15T3
Instead, trial counsel elected to cross-examine Richardson on

whether he came into contact with any other corrections officers

during the shower altercation.

     Similarly, the PCR judge rejected defendant's contention that

the corrections officers' reports should have been used to impeach

their   trial    testimony.        The     PCR    judge       found   the    purported

inconsistencies between the information in the officers' written

reports and their trial testimony were insignificant and that the

jury had ample opportunity to assess the credibility of the

witnesses.

     Lastly, the PCR judge rejected defendant's claim that certain

evidence should have been proffered to support the theory that his

conviction was the result of a conspiracy among the corrections

officers, the surgeon who treated Richardson, the radiologist who

reviewed Richardson's radiological scan, the prosecutor, defense

counsel and the trial judge, because defendant failed to offer

evidence in support of his conspiracy theory.

     On appeal, defendant contends that he was denied effective

assistance of trial counsel based upon: (1) counsel’s failure to

challenge the testimony of both Dr. Diaz and Richardson, which was

used to establish the elements of aggravated assault; (2) counsel’s

failure   to    object      to   certain       hearsay    testimony      offered         by

Richardson;     and   (3)    counsel’s     failure       to    request      an   adverse

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inference   charge   based   upon   the   State’s   loss   of   exculpatory

evidence.

    Defendant raises the following points on appeal:

    POINT I

            DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
            OF COUNSEL ENTITLING HIM TO POST CONVICTION
            RELIEF.

            A.   COUNSEL WAS INEFFECTIVE FOR FAILING TO
            CHALLENGE THE MEDICAL TESTIMONY PRESENTED BY
            OFFICER RICHARDSON [sic] WHICH WAS USED TO
            ESTABLISH THE ELEMENTS OF AGGRAVATED ASSAULT
            FOR WHICH DEFENDANT WAS CONVICTED.

            B.   COUNSEL WAS INEFFECTIVE FOR FAILING TO
            OBJECT TO THE HEARSAY TESTIMONY OF OFFICER
            RICHARDSON’S CHARACTERIZATION OF A MEDICAL
            OPINION REGARDING INJURIES HE CLAIMED TO HAVE
            SUSTAINED   DURING   A   CONFRONTATION   WITH
            DEFENDANT.

            C.   COUNSEL WAS INEFFECTIVE FOR FAILING TO
            MOVE FOR AN ADVERSE INFERENCE CHARGE WITH
            REGARD TO THE VASELINE JAR BECAUSE IT
            FORECLOSED A LIKELY SUCCESSFUL DEFENSE OF
            RETALIATION AGAINST DEFENDANT FOR REPORTING
            OFFICER RICHARDSON TO HIS SUPERIORS FOR ABUSE
            OF AUTHORITY.

    In reviewing factual findings based upon witness testimony

at a PCR evidentiary hearing, we apply a deferential standard.

State v. Nash, 
212 N.J. 518, 540 (2013).            "[W]e will uphold the

PCR court's findings that are supported by sufficient credible

evidence in the record."     Ibid.




                                     8                             A-4183-15T3
     To prevail on a claim of ineffective assistance of counsel,

defendant must satisfy the two-pronged Strickland test as adopted

by New Jersey in State v. Fritz, 
105 N.J. 42 (1987).                  First, a

defendant must demonstrate that "counsel's performance 'fell below

an objective standard of reasonableness,' such that [counsel] 'was

not functioning as the "counsel" guaranteed . . . by the Sixth

Amendment.'"     State v. Hess, 
207 N.J. 123, 146 (2011) (quoting

Strickland v. Washington, 
466 U.S. 668, 687-88, 
104 S. Ct. 2052,

2064, 
80 L. Ed. 2d 674, 693 (1984)).         However, a reviewing court

should   not   assess   counsel's    performance   with      the    benefit   of

hindsight.     Strickland, supra, 
466 U.S.  at 689-90, 
104 S. Ct.  at
 2065-66, 
80 L. Ed. 2d   at 694-95.              Second, a defendant must

demonstrate that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."     Hess, supra, 
207 N.J. at 146 (quoting

Strickland,    supra,   
446 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."                   State v.

Marshall, 
148 N.J. 89, 157 (quoting Strickland, supra, 
466 U.S. 
at 694, 
104 S. Ct.  at 2068, 
80 L. Ed. 2d at 698), cert. denied,


522 U.S. 850, 
118 S. Ct. 140, 
139 L. Ed. 2d 88 (1997)).

     Defendant argues that trial counsel's examination of Dr. Diaz

was ineffective for several reasons, including trial counsel's

                                      9                                A-4183-15T3
failure to cross-examine Dr. Diaz as to his finding of facial

fractures when the radiologist found no such fractures, as well

as his failure to address the font type differences between the

radiologist's    original     and   addendum    reports.     Additionally,

defendant argues that trial counsel's failure to cross-examine Dr.

Diaz on the absence of any mention of nasal injury in Richardson's

incident     reports     is   further     evidence   of    his      counsel's

ineffectiveness.       Defendant also contends that his trial counsel

was   ineffective   for   failing   to    cross-examine    Dr.    Diaz   about

Richardson's possible pre-existing nasal conditions.

      We reject defendant's arguments on these grounds.              The PCR

judge noted that the strategy advanced by defendant's trial counsel

was to offer evidence establishing Richardson's injuries were

caused by contact with a fellow corrections officer                  and not

defendant.     Therefore, cross-examining Dr. Diaz on any of the

suggested issues would not have advanced the defense theory.                 We

concur with the PCR judge that the decision not to cross-examine

Dr. Diaz was an exercise of sound trial strategy.                See State v.

Arthur, 
184 N.J. 307, 332-33 (2005).           The mere fact that a trial

strategy failed does not establish a constitutional claim of

inadequacy.    Fritz, supra, 
105 N.J. at 54.

      Defendant next argues that his trial counsel's failure to

object to Richardson's hearsay testimony offering medical opinions

                                     10                              A-4183-15T3
constituted ineffective assistance of counsel.                    We reject this

argument as well.        The trial judge sustained defense counsel's

hearsay objections to Richardson's testimony about the doctor's

diagnosis     as   to   his    medical    condition.          Because      there    was

corroborating expert medical testimony from Dr. Diaz explaining

Richardson's injuries, any hearsay that might have been heard by

the jury was harmless.          See R. 2:10-2; see also State v. Macon,


57 N.J. 325, 336 (1971) (noting that an error must be capable of

producing an unjust result "sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise

might not have reached").

     Defendant      further      argues       that    his    trial       counsel    was

ineffective because he failed to request an adverse inference with

regard   to   a    missing     Vaseline   jar    that       defendant     claims     was

exculpatory.2        Defendant     contends      the    missing      Vaseline       jar

substantiated his claim that the corrections officers plotted

against him by claiming he used Vaseline to plan an attack, when

defendant     asserts    the    container       was    actually      a    soap     dish.


2
  The original indictment relied on a Vaseline jar to support the
prosecution's claim that defendant preplanned the attack on the
corrections officers and used Vaseline on his body to make it
difficult for the officers to restrain him.         However, the
prosecution subsequently lost the Vaseline jar prior to trial.
Defense counsel then successfully moved to dismiss the original
indictment and to suppress any mention of a Vaseline jar during
the trial.

                                         11                                  A-4183-15T3
According to defendant, the suppression of this evidence limited

his retaliation theory.     No adverse inference charge was warranted

as all testimony with respect to Vaseline was suppressed by the

trial judge.

     As     for   defendant's   claim   that   his   trial   counsel    was

ineffective in pursuing a self-defense strategy rather than a

retaliation defense, there is no support in the record for his

claim.    There was only one mention of self-defense at trial in a

single voir dire question during jury selection.               The record

reflects that trial counsel pursued a retaliation defense on

defendant's behalf.

     Based upon the sufficient, credible evidence in the record,

defendant     failed   to   demonstrate   that   his   trial    counsel's

performance was deficient or prejudicial.

     Affirmed.




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