Opinion
DOCKET NO. A-3608-13T3
05-19-2016
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1303. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After his convictions for shooting a gas station attendant in the chest in the course of a robbery, defendant Jonathan A. Black appeals from the December 16, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
A jury found defendant guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The trial judge sentenced defendant to an aggregate term of sixteen years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his convictions and we affirmed, remanding only for resentencing. State v. Black (Black I), A-0224-06 (App. Div. Feb. 13, 2009). The Supreme Court denied defendant's petition for certification. State v. Black, 199 N.J. 132 (2009). After the judge resentenced defendant to the original term following remand, defendant appealed the sentence and we affirmed by order December 16, 2010. State v. Black (Black II), A-6136-08 (App. Div. Dec. 16, 2010).
In our February 2009 decision on defendant's direct appeal, we summarized the facts put before the jury:
[T]estimony by Robert Walker, an acquaintance of defendant's who witnessed the gas station incident, established that,
on April 12, 2004, while returning to Hillside from a gathering in Newark, Walker stopped for gas, opening the door to request ten dollars worth of fuel. While the door was open, defendant reached across Walker while holding a gun and stated to the gas station attendant, "Give me the damn money or I'll kill you." When the attendant retreated in panic, defendant shot him in the chest and then ordered Walker to drive off. The bullet passed through the attendant's body, exited through his armpit, reentered his arm, and again exited in the area above the elbow. The attendant, although believing that he would die, survived the attack. Both the bullet and casing were recovered, and ballistic tests connected the ammunition with one of the guns found in the vehicle that defendant was driving on April 28. Defendant, testifying on his own behalf, denied any involvement with the crime and stated that his confession had been manufactured by the police without any involvement on his part except to sign the fraudulently created document. The jury did not accept defendant's story, finding him guilty on all counts of the indictment against him.
[Black I, supra, slip op. at 7.]
"Walker" is a pseudonym. --------
The gas station attendant who was shot was out of the country in India during the trial and was deemed unavailable by the judge without objection by either party. During jury deliberations the jury requested the definitions of significant and serious bodily injury. At the joint request of the prosecutor and defense counsel, the judge provided the jury with the written instructions rather than reading the charge again. The jury also asked specific factual questions not answered by the evidence presented and the judge instructed them not to speculate, but to rely on the evidence adduced at trial.
Defendant raises the following issues on appeal:
POINT I: POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE THE TRIAL COURT ERRED BY GIVING THE JURY DEFECTIVE SUPPLEMENTAL INSTRUCTIONS IN RESPONSE TO THEIR QUESTIONS SUBMITTED TO THE JUDGE DURING DELIBERATIONS, WHICH RESULTED IN FUNDAMENTAL INJUSTICE AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL OR, IN THE ALTERNATIVE, AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.
A. THE DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BECAUSE THE TRIAL COURT ERRED BY TELLING THE JURORS THAT THEY COULD NOT USE A LACK OF EVIDENCE IN REACHING THEIR VERDICT IN RESPONSE TO JUROR QUESTIONS SUBMITTED TO THE COURT DURING DELIBERATIONS.
B. THE DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BECAUSE THE TRIAL COURT ERRED BY PROVIDING THE JURORS WITH A PARTIAL WRITTEN CHARGE ON THE DEFINITIONS OF SERIOUS BODILY INJURY AND SIGNIFICANT BODILY INJURY IN RESPONSE TO THEIR REQUEST WITHOUT ADDRESSING THEM OR PROVIDING SUPPLEMENTAL ORAL INSTRUCTIONS.
C. THIS CASE SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
D. POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE APPELLATE COUNSEL FAILED TO RAISE THE SUPPLEMENTAL JURY CHARGE ISSUE IN THE DIRECT APPEAL OR, IN THE ALTERNATIVE, THIS CASE SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT II: BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.
In response to the jury's question seeking the definitions of "serious bodily injury" and "significant bodily injury," the trial judge, upon request by defense counsel, provided the jury with a written copy of the portion of the jury charge containing those definitions, without reading the charge to them. Defendant argues that defense counsel should have asked the judge to furnish the entire jury charge in writing with additional oral instructions, and that defense counsel was ineffective for not making such a request. He also claims that the judge's responses to the jurors seeking information outside of the evidence presented at trial was prejudicial in that, by urging the jury to rely on the evidence presented, the judge failed to discuss that a reasonable doubt could arise from the lack of evidence presented. Additionally, defendant claims defense counsel was ineffective in not calling the victim as a witness. He claims as well that appellate counsel was ineffective in not raising these issues on direct appeal.
A claim of ineffective assistance of counsel must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Strickland requires a showing, "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 the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The Strickland standard applies to a defendant's claims of ineffective assistance of counsel at both the trial and appellate level. State v. O'Neil, 219 N.J. 598, 611 (2014).
An evidentiary hearing is ordinarily granted if the facts, viewed "in the light most favorable to the defendant," would warrant PCR. State v. Jones, 219 N.J. 298, 311 (2014). Thus, whether a defendant receives an evidentiary hearing depends on the defendant's "establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b).
A defendant "must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a defendant "must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.
The trial judge gave a complete version of the instructions and charges orally in accord with the model jury charges. Providing a copy of a part of those charges in writing without reading those portions aloud again was a reasonable judicial response to the jury's request. Defense counsel's decision to join with the prosecutor in requesting this relief is a matter of trial strategy. Strategic decisions that are objectively reasonable are "'within the wide range of reasonable professional assistance' to which an accused is entitled," State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694), and an appellate court "will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Castagna, 376 N.J. Super. 323, 360 (App. Div. 2006), rev'd, on other grounds, 187 N.J. 293 (2006). Defendant gives no support for the proposition that, after giving a complete charge, when the jury requests definitions already given orally, providing a written copy of that portion of the charge without the rest is prejudicial. Nor does he provide support for his argument that by focusing the jury's attention on the trial evidence the judge negated his prior charge that "defendant may be found guilty by reason of direct evidence, circumstantial evidence, a combination of the two or a lack of evidence if it raises in your mind a reasonable doubt as to the defendant's guilt."
Defendant also speculates that the victim would have failed to identify him and thus the jury would have found him not guilty. Defendant does not present any support for the proposition that the victim's testimony, if defense counsel had been able to procure it, would have been helpful to the defense. Defendant did not provide a certification from the victim to support this claim nor did defendant supply any evidence that the victim would be available to testify at an evidentiary hearing. Both claims are therefore speculative and do not rise to the level of a prima facie claim meriting an evidentiary hearing.
We affirm based not only on the reasons stated above, but also substantially for the reasons expressed in Judge William A. Daniel's December 16, 2010 comprehensive sixteen-page opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION