STATE OF NEW JERSEY v. LAVAR T. RODGERS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0710-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAVAR T. RODGERS, a/k/a
LAVAR T. ROGERS,
Defendant-Appellant.
____________________________
Submitted November 7, 2018 – Decided December 17, 2018
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 12-01-0005.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah E. Elsasser, Deputy Attorney
General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order entered by the Law Division on March
9, 2017, which denied defendant's petition for post-conviction relief (PCR). We
affirm.
I.
In January 2012, a Salem County grand jury returned an indictment
charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2)
(counts one, two, three and four); third-degree criminal restraint, N.J.S.A.
2C:13-2(a) (counts five, six, seven and eight); first-degree attempted murder,
N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3 (counts nine, ten, eleven and twelve);
second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1)
(counts thirteen, fourteen, fifteen and sixteen); third-degree aggravated assault
against a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count seventeen);
fourth-degree aggravated assault against a law enforcement officer, N.J.S.A.
2C:12-1(b)(5)(a) (counts eighteen, nineteen and twenty); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts twenty-one and twenty-two);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts
twenty-three and twenty-four); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (counts twenty-five and twenty-six);
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fourth-degree injury to animals used for law-enforcement purposes, N.J.S.A.
2C:29-3.1 (count twenty-seven); and second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b) (counts twenty-eight and twenty-nine). In July
2012, defendant was tried before a jury.
At the trial, the State presented evidence that defendant's girlfriend R.T.
was in a residence in the City of Salem, with her children and a friend. 1
Defendant was in the kitchen with his friends. R.T. said it appeared defendant
had been smoking marijuana. Defendant told his friends and R.T.'s friend to
leave. He then grabbed R.T. by the wrist. He stated that he had been "set up"
and if they returned, he would shoot them. R.T. broke free and defendant
threatened to shoot her and one of the children. He held a gun to R.T.'s neck
and pointed the gun at the child.
At some point, defendant's friends returned and defendant threatened to
shoot them if they entered. R.T. laid down on the floor. Defendant sat next to
her with the gun. R.T. used her cell phone and posted a message on Facebook
stating that defendant had a gun and he was holding her and the children. She
asked someone to call the police and included her address. Someone saw the
message and called 9-1-1.
1
We use initials to identify R.T. in order to protect her privacy.
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Officers of the Salem City police department and other law enforcement
officers responded to the location. They arrived at R.T.'s residence, which is
located in one of two adjoining townhouses. The occupant of the neighboring
townhouse was leaving when the police arrived. The police established a
perimeter around the building, which included both townhouses.
Robert Eller, William Robinson, Walter Christy, and other law
enforcement officers decided to enter the residence through the front door. They
were accompanied by a police dog. Eller banged on the front door, announced
it was the police, and said someone should come to the door or the police would
come in. They heard a woman scream and a man call out, "Don't come in here."
Christy held the storm door back while Eller kicked in the other door.
Robinson entered with a police dog. When he entered the residence, Robinson
observed a young child a short distance away. He heard three gunshots.
Robinson testified that he saw defendant lying on top of a woman. Robinson
fired two shots and retreated with the dog. He yelled for defendant to drop the
gun and come out.
Senior Investigator Steven Dick of the Salem County Prosecutor's Office
testified that shots started coming out of the house as soon as Eller kicked in the
door. Dick stated that shots were fired at him and other officers. Dick looked
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into the house and observed a firearm pointed in his direction. He stepped back.
Shots were exchanged. One shot hit the storm door and shattered it. Robinson
was hit by the debris from the doorframe. Dick was grazed by a bullet.
Dick retreated to a police vehicle about twenty to thirty feet from the
entrance to the home. The police dog also was shot and required medical
treatment for a bullet puncture to the lung. Dick observed a black male come to
the front door. At trial, Dick testified that defendant was the person he saw at
the front door.
Several hours later, members of the New Jersey State Police arrived and
took control of the scene. The State Police maintained the original perimeter
around the home. They attempted to negotiate with defendant for several hours,
using a hostage negotiator and a loudspeaker. Later, R.T. and the children left
the residence, and the State Police continued their efforts to get defendant to
surrender.
The police fired tear gas canisters into the basement, ground floor, and
second floor of R.T.'s residence, but defendant remained inside. At
approximately 2:30 a.m., the police entered R.T.'s residence a second time.
They searched the ground floor, the second floor, and the basement. In the
basement, the police discovered a passageway into the adjacent townhouse.
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They entered the adjacent townhouse, made their way upstairs to the ground
floor, and searched the kitchen.
They found defendant hiding in a cabinet underneath the sink. The police
arrested defendant and turned him over to detectives. The police found a .38
caliber revolver in the debris in the kitchen of the adjacent townhouse. In a
bedroom in R.T.'s residence, they found a .45 caliber automatic handgun. The
police recovered five shells that matched the .38 caliber gun.
The trial judge dismissed counts twenty-three (second-degree unlawful
possession of a weapon), twenty-five (second-degree possession of a weapon
for an unlawful purpose), and twenty-eight (second-degree persons not to have
weapons). The jury found defendant guilty on all the remaining charges.
The judge sentenced defendant on October 3, 2012. The judge merged
certain offenses and sentenced defendants on counts nine, ten, eleven, and
twelve to concurrent terms of fifty-five years of incarceration, each with an
eighty-five percent period of parole ineligibility, pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a
consecutive seven-year term on count twenty-nine, with a five-year period of
parole ineligibility.
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Defendant appealed from the judgment of conviction dated October 3,
2012. We affirmed defendant's conviction and sentences. State v. Rodgers, No.
A-1696-12 (App. Div. Nov. 5, 2014). The Supreme Court denied defendant's
petition for certification. State v. Rodgers, 221 N.J. 287 (2015).
On July 16, 2015, defendant filed a pro se petition for PCR, alleging
ineffective assistance of counsel, prosecutorial misconduct, and a conflict of
interest. The court assigned PCR counsel, and counsel filed a supplemental
brief.
The PCR court heard oral argument on January 23, 2017. The court filed
a written opinion dated March 9, 2017, concluding that defendant had not
established a prima facie case of ineffective assistance of counsel, and an
evidentiary hearing was not required. The court entered an order denying PCR
and this appeal followed.
On appeal, defendant's PCR counsel argues that the PCR court erred by
failing to conduct an evidentiary hearing on the petition. PCR counsel contends
he established a prima facie case of ineffective assistance of counsel because his
trial attorney failed to: (1) adequately cross-examine R.T., Dick, and Robinson;
(2) request a mistrial when a deliberating juror admitted seeing a newspaper
article about the case; (3) call certain witnesses at trial; and (4) object to the
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assistant prosecutor's allegedly improper comments and questions. Defendant
also has filed a supplemental pro se reply brief which essentially makes the same
arguments as those presented in the counseled brief.
II.
The court should conduct an evidentiary hearing on a PCR petition when
the defendant establishes a prima facie case for PCR, there are material issues
in dispute that cannot be resolved based on the existing record, and the court
determines that a hearing is necessary to resolve the claims presented. State v.
Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "To establish a prima
facie case, defendant must demonstrate a reasonable likelihood that his or her
claim, viewing the facts alleged in the light most favorable to the defendant, will
ultimately succeed on the merits." R. 3:22-10(b).
To prevail on a claim of ineffective assistance, a defendant must satisfy
the two-part test established in Strickland v. Washington, 466 U.S. 668, 687
(1984), which was later adopted by our Supreme Court in State v. Fritz, 105 N.J.
42, 58 (1987). The defendant must show that his attorney's performance was
deficient. Strickland, 466 U.S. at 687. The defendant also must show that his
attorney's "deficient performance prejudiced the defense." Ibid.
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In considering whether a defendant satisfies the first prong of the
Strickland test, we recognize a strong presumption that trial counsel exercised
reasonable professional judgment in the handling of the case. Id. at 690. To
overcome that strong presumption, a defendant must show that counsel's actions
or omissions were not within the "wide range of professionally competent
assistance." Id. at 690. Furthermore, to establish prejudice under the second
prong of the Strickland test, the defendant must show there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
A. Defense Counsel's Cross-Examination of R.T., Dick, and Robinson
Defendant argues that his trial attorney's cross-examination of R.T. was
deficient. He asserts that R.T. was a reluctant witness, and claims R.T. was
threatened she would be subject to a Division of Child Protection and
Permanency (DCPP) action and the removal of her children if she did not testify
against defendant. Defendant also claims that before the trial, R.T. submitted
an affidavit to the court stating that the allegations against defendant were false.
In its decision, the PCR court noted that R.T. had provided the police with
a recorded statement and testified at trial about the events leading up to
defendant's arrest. Defense counsel cross-examined R.T. extensively about
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various aspects of her testimony, including the message she posted on Facebook
asking for assistance. Defense counsel asked R.T. whether she had actually seen
defendant with a gun, and whether defendant fired the gun. Counsel also asked
R.T. about her exit from the residence.
Assuming defense counsel had seen R.T.'s affidavit before she testified,
counsel did not err by electing not to question R.T. about it. As the PCR court
noted in its decision, if counsel had questioned R.T. about the affidavit, this
would merely have informed the jury that R.T. thought the allegations against
defendant were false, despite substantial evidence to the contrary.
We note that in the affidavit, R.T. did not mention she had been threatened
with action by the DCPP, and there is no evidence indicating defense counsel
was aware of any such threats. The PCR court found that counsel's cross-
examination of R.T. was not deficient and, even if it were, defendant failed to
show how he was prejudiced thereby. The record supports the court's findings.
Defendant further argues that defense counsel's cross-examination of Dick
and Robinson was deficient. He asserts Dick received a superficial injury during
the incident, and neither Dick nor Robinson were struck by a bullet. Defendant
contends counsel should have questioned these witnesses about their "supposed"
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injuries and elicited testimony that the injuries could have been caused by
something other than a bullet.
The PCR court found, however, that defendant failed to refute the strong
presumption that defense counsel had rendered effective assistance in the cross-
examination of Dick. The PCR court noted that Dick had testified he believed
he had been shot during the exchange of gunfire, but did not know the extent of
his injury. On direct examination, Dick testified that a bullet did not penetrate
his shoulder, but a bullet grazed his jacket and he was injured as a result.
Defendant contends his trial attorney should have asked Dick whether he
could have been injured when he backed out through the broken storm door.
The PCR court found that defense counsel reasonably chose not to question Dick
concerning the possible alternate explanation for his injury. The court also
found that defendant failed to show that he was prejudiced by counsel's failure
to cross-examine Dick concerning his injuries. The record supports the court's
findings.
Moreover, at trial, Robinson also acknowledged that a bullet did not
penetrate his shoulder, but he was hit by other debris during the incident. The
State presented evidence indicating that Robinson was injured by debris during
the exchange of gunfire between defendant and law enforcement. We are
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convinced defense counsel was not deficient in failing to question Robinson as
to the source or extent of his injury, and defendant was not prejudiced by
counsel's failure to question Robinson further about his injury.
B. Defense Counsel's Failure to Seek a Mistrial
Defendant argues his trial attorney was deficient because he failed to seek
a mistrial after an article appeared on the front page of the Salem Sunbeam
newspaper regarding the trial. The record shows that the trial judge brought the
article to the attention of the attorneys, and they asked the judge to question the
members of the jury to determine if anyone had read any newspaper article about
the case. The judge indicated if any juror indicated he or she had done so, he
would question the juror at sidebar and decide how to proceed.
The judge questioned the members of the jury. Juror No. 3 indicated she
had seen the article and mentioned it to the other jurors. The judge questioned
the juror outside the presence of the other members of the jury. Juror No. 3
indicated that she saw the headline and defendant's picture, but put the
newspaper "away immediately."
The juror told the judge that this would not have any impact on her ability
to be fair and impartial. The judge then questioned the other members of the
jury. He asked if Juror No. 3's statement that she had seen an article about the
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case in a newspaper would affect their ability to be fair and impartial. No juror
responded affirmatively.
The PCR court found that defense counsel was not ineffective for failing
to seek a mistrial. The court stated there was nothing in the record to indicate
that Juror No. 3 had obtained prejudicial information about the case from the
article, and no evidence showing that the juror's exposure to the headline had
the capacity to influence the jury's deliberations.
The court noted that defendant's attorney had conceded the headline was
not inflammatory. The court also determined that counsel's failure to seek a
mistrial did not have any effect on the outcome of the trial, and defendant had
not shown that the result of the proceeding would have been different, if counsel
had moved for a mistrial. The record supports these findings.
C. Defense Counsel's Failure to Call Witnesses
Defendant argues his trial counsel was deficient because counsel did not
call Vengenock as a hostile witness. According to defendant, Dick testified that
Vengenock identified defendant by name at the scene. Defendant claims
Vengenock denied that he had identified defendant, and Dick would not have
been able to identify him in the absence of Vengenock's identification.
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The record shows that at trial, Dick testified that he observed a black male
approach the front door to the residence, and he identified defendant as that
person. On cross-examination, defense counsel questioned Dick about his
identification. Dick said that when he first looked into the residence, he saw a
black female on the floor with a child, but he was not able to see the person
holding the weapon. Dick stated however, that he did see the individual's face
for a split second, when he came to the door. Dick's view of the individual's
face occurred simultaneously with statements by Vengenock and another
officer's statements identifying defendant.
The PCR court found that defense counsel was not deficient in failing to
call Vengenock as a witness. We note that in his cross-examination by Dick,
defense counsel established that Dick did not see the individual who was holding
the weapon. He also established that Dick heard Vengenock identify defendant
at the same time he observed defendant appear in the doorway. The record
supports the PCR court's finding that counsel did not err by failing to call
Vengenock. His testimony would not have undermined the credibility of Dick's
identification. The record also supports the PCR court's determination that
counsel's failure to call Vengenock did not have any effect on the outcome of
the trial.
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Defendant also contends his attorney should have called State Troopers
Rocap and Erdman. John Parkinson was one of the Troopers who entered the
home. Parkinson testified that R.T.'s residence and the adjacent townhouse were
surrounded by law enforcement officers. He stated that no one came out except
a female and the children. He said that he did not see them leave the building,
but he was told the female had exited the house, and he saw her walking down
the street, coming to the command post.
On cross-examination of Parkinson, defense counsel established that
Rocap had written a report about the female exiting the building. He also
elicited testimony that Erdman was near the building and relayed information
that a female had exited the adjacent townhouse from the rear. Parkinson agreed
that Rocap's report and the information relayed to him may have contained
mistakes.
The PCR court found that defense counsel was not deficient in failing to
call Rocap and Erdman as witnesses. The discrepancies between their
statements and Parkinson's testimony were of no significance whatsoever to the
defense. The court further found that defendant failed to show that the result of
the proceeding would have been different if these witnesses had been called.
The record supports the court's findings.
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D. Defense Counsel's Failure to Object to the Prosecutor's Questions and
Comments
Defendant further argues that his trial attorney erred by failing to object
to certain questions and comments by the assistant prosecutor. The assistant
prosecutor asked the State's witnesses whether they were married. The assistant
prosecutor also asked the State's witnesses whether they had children or
grandchildren, and if so, their ages. Defendant contends the questions sought
information that was irrelevant. He asserts that the purpose of the question was
to generate an emotional response and sympathy for the officers involved in the
incident.
The PCR court noted in its decision that in his direct appeal, defendant
had argued the assistant prosecutor had improperly appealed to the sympathies
of the jurors by making certain comments during the trial. We held that the
comments were not improper and did not deprive defendant of his right to a fair
trial. Rodgers, slip op. at 15-16. Similarly, the comments at issue here were not
improper and do not deprive defendant of his right to a fair trial.
Thus, defendant's counsel was not deficient in failing to object to the
assistant prosecutor's questions and comments cited here. Moreover, defendant
failed to show that the result of the proceeding would have been different if
counsel had objected to the questions and comments.
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In sum, the PCR court correctly determined that defendant failed to
present a prima facie case of ineffective assistance of counsel. Therefore, the
court correctly found that defendant was not entitled to an evidentiary hearing
on his petition.
Affirmed.
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