Opinion
DOCKET NO. A-3398-12T1
06-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-00120.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This appeal is from the denial of defendant Robert Brown's motion for post-conviction relief (PCR). Defendant was tried to a jury and seeks relief from convictions for first-degree robbery, N.J.S.A. 2C:15-1a(2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After denying the State's motion for an extended-term sentence, the judge sentenced defendant to a nineteen-year term of imprisonment for first-degree robbery that is subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. On the remaining convictions, the judge imposed terms of imprisonment that are concurrent with one another and his sentence for robbery.
This crime was committed on November 1, 2006. Subsection b of N.J.S.A. 2C:39-5 was amended by L. 2007, c. 284, § 1, to make it a second degree crime to possess a handgun without a permit unless the handgun is in the nature of an air gun, in which case it would still be a third degree crime.
Defendant and his appellate counsel raised numerous issues on his direct appeal. This court affirmed defendant's convictions and sentence, but we remanded for merger of his convictions for first-degree robbery and possession of a weapon for an unlawful purpose. State v. Brown, No. A-0055-09 (App. Div. Dec. 30, 2010) (slip op. at 11). In addition, we directed the judge to correct factual misstatements in the judgment and consider defendant's claimed entitlement to jail or gaptime credits. Ibid. The Supreme Court denied certification. 207 N.J. 189 (2011).
Defendant did not challenge the trial judge's ruling on the admissibility of the identification evidence on direct appeal. His counsel raised these issues: POINT I
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IRREPARABLY PREJUDICED WHEN THE COURT DENIED HIS MOTION FOR A MISTRIAL AFTER THE JURY HAD BEEN EXPOSED TO HIS ANGRY OUTBURST IN THE COURTROOM.
POINT II
THE COURT ERRED IN FAILING TO MERGE THE SENTENCE ON COUNT ONE INTO THAT ON COUNT TWO. (Not raised below.) [sic]
POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
In a pro se supplemental brief, defendant argued: POINT I
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF SPEEDY TRIAL BY 21 MONTHS OF OPPRESSIVE, PRETRIAL CONFINEMENT, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, WHEREFORE THE CONVICTION SHOULD BE SET ASIDE AND THE INDICTMENT DISMISSED.
POINT II
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEREFORE THE CONVICTION SHOULD BE REVERSED (Not Raised Below).
POINT III
THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL AWARDED.
POINT IV
THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A CORRECTED JUDGMENT OF CONVICTION.
Defendant asserts that he is entitled to a hearing on his claims of deficient representation due to trial counsel's failure to: investigate or call witnesses; give defendant adequate advice about testifying; and inform the trial judge of a plea agreement reached during deliberations. Although defendant did not object to the judge's denial of his pre-trial application to bar admission of the victim's out-of-court identification of defendant or his identification of defendant at trial, he argues that the judge who adjudicated his petition erred in concluding that his objection to the admission of the victim's identification is procedurally barred by Rule 3:22-4.
Defendant frames the issues as follows:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER RULE 3:22 CRITERIA.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
THE PCR COURT MISAPPLIED RULE 3:22-4 IN FINDING THAT DEFENDANT WAS PROCEDURALLY BARRED FROM ARGUING THAT THE OUT-OF-COURT IDENTIFICATION VIOLATED HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A RELIABLE IDENTIFICATION PROCEDURE.
For the reasons that follow, we remand for an evidentiary hearing on counsel's reasons for declining to interview or call any witnesses. Because we are remanding, we also direct the judge to consider whether enforcement of Rule 3:22-4 to preclude defendant's claim of impermissibly suggestive identification procedures will result in fundamental injustice. R. 3:22-4(a)(2). We reject defendant's other claims.
I
The crime occurred in Pemberton on November 1, 2006. By the victim's account, he was watching an outdoor game of craps and making change for the players, and defendant came up to him and asked him to step away from the group. The victim complied, and defendant, threatening the victim with a firearm, demanded cash. The victim relinquished $230 and left the scene in his car. Despite defendant's threat to harm the victim if he reported the incident, the victim went to the police.
At the police station, the victim was shown a photo array and identified defendant as the perpetrator. At a hearing conducted prior to opening arguments, the detective sergeant who prepared the array and the detective who presented it testified. Neither of them was involved in the investigation. The detective sergeant, however, knew defendant was a suspect, and the detective had been present when defendant was interviewed.
The only record made of the identification was a one-page exhibit that included all of the six photographs shown to defendant. The detective who presented the photos to the victim had displayed them one at time. He presented them to the victim in the order the detective sergeant had stacked them. Defendant's photo was first in the stack, and the victim identified him immediately. At the detective's request, however, the victim looked at the other photos and ruled out the other persons depicted. The victim did not testify at the hearing.
At trial, the victim testified that he and defendant attended the same middle school some years before, but he did not recall defendant's name when he first saw him that night. The victim said he remembered that defendant was known as Bobby Brown after a member of the group called defendant "Bobby." At trial, the victim acknowledged that when he reported the crime to the police he did not mention defendant's name and admitted that he told the police he was "not sure" and could not place the perpetrator. He explained, however, that he was confused because the police were referring to defendant as "Robert Brown." There was no other evidence establishing that a robbery was committed during the craps game or linking defendant to the commission of that crime.
A second pre-trial hearing was held on the admissibility of defendant's prior convictions. The judge determined that they would be admissible but only if "sanitized" to disclose nothing other than the dates of conviction, the degree of the crimes and the sanctions imposed. State v. Brunson, 132 N.J. 377, 385-87, 391 (1993). The judge advised defendant of his right to decide whether or not to testify, explained that defendant's prior conviction would be admissible only if he elected to testify and read defendant the instruction he would give the jurors if defendant testified. The judge then asked defendant if he understood, and defendant said he did.
In addition, the judge explained the instruction that would be given, at defendant's option, if he elected not to testify. Defendant then advised that he did not have any questions about his right to testify or his right not to testify.
The next day, the judge told defendant he understood that defendant had decided not to testify, and defendant said that the judge was correct. The judge then asked, "And you're making this decision after having discussed this with your attorney; is that correct?" Defendant said, "Correct."
Despite that colloquy, at the conclusion of the prosecutor's summation defendant addressed the judge in the presence of the jury. He said: "Your Honor, I think the prosecutor . . . . - - I think he's racist." Ignoring the judge's direction to sit down, defendant told the judge that if he did not take the stand the jurors would find him guilty.
After the judge excused the jurors defendant continued. He asserted that his attorney told him not to take the stand and claimed that his lawyer had told him that the judge said that the jury would find defendant guilty if he testified. Addressing defendant, his lawyer denied saying that, more than once. Defendant, ignoring the judge's directions and interrupting him, told the judge he did not think he was getting a fair trial, continued to accuse his lawyer of telling him the judge said he would be convicted if he testified and asked the judge to allow him to testify.
The judge explained that it was too late for defendant to change his mind and explained that defendant had been given time to think about whether to testify. At that point defendant said, "I just started thinking about it." After a recess, the judge advised defendant that the proceeding would continue despite his outburst and that the jury would be directed to disregard it.
The judge informed defendant that he had the right to be present for the jury instructions but could and would be removed if he disrupted the proceeding. Defendant apologized to the court, elected to stay in the courtroom and promised not to say anything. Subsequently, the judge directed the jurors as he had indicated he would, and defendant kept his promise to remain silent. After the jury commenced deliberations, defense counsel moved for a mistrial. Reasoning that the jurors would follow his curative instruction, the judge denied that motion.
During deliberations, at about 3:31 p.m., the jury sent the judge a note indicating that they were "not able to reach a decision" and did "not believe there is a resolution to the deadlock." The judge gave an appropriate instruction on continuing deliberations, and the jury left the courtroom to resume deliberations. At 4:24 p.m. the jury sent the judge a note indicating that they had reached a verdict.
II
In support of his petition for post-conviction relief, defendant submitted a certification indicating that he accepted a plea agreement after the jury resumed deliberations and before the verdict. In that certification, which is dated July 5, 2012, defendant asserted the following information about a mid-deliberations plea agreement:
4. At the end of the prosecutor's summation, I had a loud, angry outburst while the jury was still in the courtroom. I was upset because my attorney told me not to testify and I had taken his advice.
5. Following my outburst, the jury was returned to the courtroom and received the
judge's charge. The jury then retired to deliberate. After several hours of deliberation, the jury reported that [it was] deadlocked. The judge sent them back to attempt to reach a verdict.
6. While the jury was deliberating, I was confined in a holding cell in back of the courtroom. My attorney . . . came to inform me that the prosecutor . . . had offered me a plea agreement in which I would serve five years in New Jersey State Prison.
7. I was afraid the jury would convict me based on adverse inferences from my outburst and failure to testify. I told [my attorney] that I would like to accept the plea agreement.
8. [My attorney] went to talk to [the prosecutor] and came back and told me the agreement was final.
9. During this time, the jury came back with the a verdict of guilty on all three counts of the indictment.
10. [My attorney] informed me that the verdict did not matter because of the plea agreement.
11. My original paperwork states that I accepted a plea. I never signed anything.
To support his assertions about the plea agreement, defendant also provided an undated plea form that included no information about the charges and indicated that no promises or representations had been made to him by the prosecutor. In fact, in the space on the form left to detail any such promises or representations, the word "None" was written. The signature line for the defense attorney is the only signature line with writing.
In defendant's initial certification, which is dated December 22, 2011, defendant addressed his trial attorney's failure to investigate and call witnesses, who were, he alleged listed in a police report and his trial counsel's advice about testifying. In pertinent part, he certified:
4. At the time I initially spoke with [my attorney] and at every meeting thereafter, I advised him that there were numerous witnesses who were present at the scene of the craps game who could testify that there was no robbery, at least no robbery committed by me, of the alleged victim.
5. To the best of my knowledge, he never investigated the case even though the witnesses were mentioned in the police report and advised the police that they saw nothing.
6. I asked him to subpoena the witnesses to the trial to testify. He refused to do this; he told me that he couldn't find them, despite the fact that no investigation was ever conducted so there really was no information on whether they could be found.
7. I told him that I wanted to testify. He told me that I would be convicted if I testified solely because I had a criminal record. At no time did he advise me that my convictions would be "sanitized." He just kept telling me that the Judge said I would be convicted.
Defendant supported his claim about witnesses defense counsel did not investigate or call with a certification signed by Jackie Graham on January 23, 2012. Jackie Graham certified:
Defendant presented a second certification from John Jackson. Although Jackson was not present at the craps game on November 1, 2006 and had no recollection of a craps game held that day, he certified that if he had been called as a witness at defendant's trial, he would have testified that he had never seen defendant with a gun. Defendant presents no argument about that certification on appeal.
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On November 1, 2006, there was a Craps game going on in the street in front of my home . . . [in] Pemberton. I recall this specific incident because I was incarcerated in the Burlington County Jail a few weeks later where I learned that Bobby Brown had been accused of robbing someone at gunpoint there. I knew this to be untrue because I observed the game from start to finish and no one was robbed, nor did I see anyone there with a gun. Even if someone had been robbed it could not have been by Bobby Brown, whom I know personally, because he wasn't even there that day.
III
Recently, in State v. Nash 212 N.J. 518, 540 (2013), the Supreme Court stressed the important role that post-conviction relief has in our criminal justice system. PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" Ibid. (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). "Ultimately, a PCR petition is a defendant's last chance to challenge the 'fairness and reliability of a criminal verdict in our state system.'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). "If an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." Ibid.
We first consider defendant's claim that the PCR judge erred in concluding that defendant's failure to object to the judge's ruling on identification evidence barred him from raising this constitutional challenge on PCR. He argues that he was deprived of his right to a fair trial because the trial judge admitted identification evidence that the police obtained through use of an impermissibly suggestive identification procedure — one that was so impermissibly suggestive that it also affected the reliability of the identification the victim made at trial.
Defendant is correct in his assertion that the PCR judge did not address the merits of that claim; the only question the judge addressed on the merits was whether trial counsel's handling of the matter amounted to ineffective assistance of counsel. Defendant's claim implicates his constitutional right to due process. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 1940, 18 L. Ed. 2d 1149, 1165 (1967); State v. Henderson, 208 N.J. 208, 285 (2011); State v. Madison, 109 N.J. 223, 239-40 (1988).
The PCR judge concluded that defendant could and should have raised that issue on his direct appeal, and for that reason, the judge applied the procedural bar provided in Rule 3:22-4(a). The problem is that the judge did not consider whether "enforcement of the bar . . . would result in fundamental injustice." R. 3:22—4(a)(2). Where enforcement of the procedural bar would result in such an injustice, our courts do not enforce the procedural bar. Nash, supra, 212 N.J. at 546.
As the Supreme Court explained in State v. Nash,
[o]ur courts will find fundamental injustice when the judicial system has denied a "defendant . . . fair proceedings leading to a just outcome . . . . " State v. Mitchell, 126 N.J. 565, 587 (1992) (internal quotations omitted) (citing State v. Laurick, 120 N.J. 1, 10, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990)). To succeed on a fundamental-injustice claim, the petitioner must make "'some showing'" that an error or violation "'played a role in the determination of guilt.'" Ibid. (quoting Laurick, supra, 120 N.J. at 13).
[212 N.J. at 546-47.]
Given the foregoing standards limiting application of the procedural bar, the judge should not have applied the procedural bar without considering whether the admission of this evidence effectively deprived defendant of a fair trial. After all, the victim's identifications, one when he was shown defendant's photograph and one at trial, were the only evidence that a crime was committed and that defendant committed it. Because the PCR judge applied the bar without considering whether its enforcement would result in a fundamental injustice, we remand so the judge can consider that question.
We could consider the question of fundamental injustice on the trial record. Nevertheless, because we have determined that a remand for an evidentiary hearing on counsel's failure to investigate is necessary, we deem it more appropriate to allow the PCR judge to conduct that analysis in the first instance.
There is a need for an evidentiary hearing on defendant's trial attorney's decision to refrain from investigating or presenting witnesses to cast doubt on the victim's testimony. In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must demonstrate deficient performance and resulting prejudice. In short, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2059, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). An evidentiary hearing is needed where the defendant has come forward with facts that would, if believed, make a prima facie showing of both deficient performance and resulting prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992). There is no question that "[a]s a general principle, 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" State v. DiFrisco, 174 N.J. 195, 223 (2002) (quoting State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695))).
The requisite showing was made here. Read together and in the light most favorable to defendant, defendant's and Graham's certifications permit a finding that although defendant's lawyer had police reports identifying witnesses, he made no investigation. The PCR judge, correctly noting that Graham's certification did not indicate that he would have testified at trial, concluded that defendant did not establish that Graham would have testified. But Graham's certification, viewed, as it must be, in the light most favorable to defendant, is sufficiently definitive to permit a reasonable inference that Graham would have testified.
The PCR judge gave an alternative reason for rejecting this claim. The judge concluded that defense counsel made a reasonable tactical decision to refrain from calling Graham as a witness because Graham could have been impeached. The judge based that conclusion, in part, on a finding that Graham "was awaiting sentencing on a conviction for distribution of controlled dangerous substances," and in part on a finding that Graham had prior convictions. On that basis, the judge concluded that Graham's "credibility would have been easily impeached" and that Graham's convictions "may have actually hurt" defendant.
There are several problems with the tactical decision the PCR judge imputed to trial counsel. Preliminarily, it lacks factual support in the record. Neither Graham's judgment of conviction nor his criminal history is included in the record provided on appeal, and Graham's criminal history was not discussed during the oral argument on defendant's petition. Moreover, although the State's brief on appeal includes representations about Graham's criminal record, the State's assertions are not supported with citations to the record.
The second problem with the judge's finding on defense counsel's tactical decision is that there is nothing in the record indicating that defendant's trial attorney had or gathered any information about Graham's criminal history. Without that evidence, there is no basis for imputing this tactical decision to defense counsel.
Finally, to the extent trial counsel may have made a tactical decision out of concern that Graham would be impeached with a conviction for which he had not been sentenced and could appeal, counsel's concern was not well-grounded. Decisional law disfavors impeaching a witness with a conviction that is not final and is subject to appeal. See State v. Biegenwald, 96 N.J. 630, 638 (1984); State v. Blue, 129 N.J. Super. 8, 12 (App. Div.), certif. denied, 66 N.J. 328 (1974). For all of those reasons, the trial judge's deference to a tactical decision the judge imputed without support in the record was improper. The only inference permitted is that defense counsel did not investigate witnesses and failed to uncover a witness who would have given testimony tending to exculpate defendant.
Because of the critical importance of the victim's testimony identifying defendant and placing him at the craps game, defendant also presented a prima facie case of prejudice resulting from defense counsel's failure to identify Graham and subpoena him to testify. Given defendant's denial of guilt and the absence of any evidence other than the identification linking defendant to the crime, Graham's testimony contradicting the victim's version of the event, if believed, was clearly capable of changing the outcome. As the PCR judge noted, the defense was essentially misidentification.
For reasons different than those given by the PCR judge, we conclude that defendant is not entitled to an evidentiary hearing on his claim that his trial attorney was ineffective for failure to advise the judge about the plea agreement reached while the jurors continued to deliberate after announcing a deadlock. By defendant's account, the verdict was returned while his attorney was advising him that the prosecutor had accepted the agreement. Assuming the truth of defendant's unsupported allegation about the plea agreement reached during deliberations, defendant does not cite and we are unaware of authority that would require the prosecutor to honor a plea agreement not presented to the court before the jurors announced that they had reached a verdict. See State v. Williams, 9 77 N.J. Super. 40, 50-51 (App. Div. 1994) (holding that where defendant had rejected the State's plea offer and the case had been tried, the judge's "order vacating a valid jury verdict to allow the defendant to enter into an expired plea offer is contrary to public policy and the sound administration of justice"); cf. State v. Gibson, 68 N.J. 499, 509 (1975) (approving post-verdict plea agreement based on defendant's waiver of the right of appeal); State v. Owens, 381 N.J. Super. 503, 511 (App. Div. 2005) (discussing the permissibility of post-verdict guilty pleas generally).
Defendant's final claim — ineffective assistance of counsel based on his attorney's advice about testifying — has insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm the PCR judge's ruling on that claim substantially for the reasons stated in the judge's written decision of September 28, 2012.
Affirmed in part, reversed in part and remanded for reconsideration of the applicability of Rule 3:22-4 and an evidentiary hearing on trial counsel's decision about investigating and calling witnesses for the defense.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION