Opinion
DOCKET NO. A-1375-14T1
05-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD RAMON GARDNER, a/k/a GARY EVANS, RICKY, IAN, J. ELIE and RICHARD M. GARDNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-08-0723. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Richard Gardner appeals from the August 28, 2014 Law Division order denying his petition for post-conviction relief (PCR) without a hearing. We affirm.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2; fourth-degree theft, N.J.S.A. 2C:20-3; disorderly-persons simple assault, N.J.S.A. 2C:12-1(a)(3); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). On July 7, 2008, defendant was sentenced to an aggregate term of eighteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and we affirmed, although we remanded for the limited purpose of correcting the judgment of conviction to reflect the merger of the conspiracy, theft, assault, and weapons convictions with the robbery conviction. State v. Gardner, No. A-3034-08 (App. Div. Oct. 12, 2011) (slip op. at 1-2). The Supreme Court granted certification, 210 N.J. 217 (2012), but subsequently dismissed the appeal as improvidently granted, 213 N.J. 424 (2013).
On April 30, 2013, defendant filed a pro se PCR petition alleging unspecified court errors and ineffective assistance of counsel. After counsel was assigned, a brief was submitted claiming defendant's trial counsel was ineffective in failing to object to defendant's absence from the courtroom during the replaying of a 911 tape during jury deliberations. Defendant also claimed he was precluded from participating in side-bar conferences during trial. The PCR judge, who was also the trial judge, heard oral argument on August 28, 2014 and denied the petition without a hearing.
On appeal, defendant raised one point:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AT SENTENCING.
Defendant filed a pro se supplemental brief raising one additional point:
POINT I
THE DEFENDANT/APPELLANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL WAS VIOLATED WHEN THE COURT AND COUNSEL DID NOT ALLOW DEFENDANT/APPELLANT IN THE COURT ROOM AT CRITICAL STAGES OF THE TRIAL AND THE COURT ALLOWED JURY IMPROPRIETY AGAINST THE STATE'S QUESTIONING, (a) AND (b).
Section (a) of defendant's pro se letter brief alleges he was not present in the courtroom during jury deliberations when the jury was brought out with questions. Section (b) makes a similar claim regarding the replaying of 911 tapes for the jury.
To establish constitutional ineffectiveness, a defendant must first show that "counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A deficient performance means that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a "defendant must show that the deficient performance prejudiced the defense." Ibid. Prejudice means "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. A defendant must meet both prongs of Strickland before a conviction will be reversed. Ibid.
In his counselled brief, defendant claims that his trial counsel was ineffective as he "failed to present a cogent argument referencing relevant mitigating factors." At sentencing, the judge found three aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no mitigating factors. Defendant claims trial counsel failed to mention that defendant had three children, then ages nine, six, and sixteen months, from two different relationships, and that incarceration would cause hardship to his children and their mothers who were dependent upon him for support.
The PCR judge noted that, at sentencing, defendant's counsel requested a sentence at the lower end of the presumptive range. The judge also found that, even if counsel's failure to argue for a mitigating factor based on hardship was error, defendant did not provide any evidence to support his claim that he would have received a lesser sentence had counsel made such an argument.
The judge found defendant's claim that his trial counsel failed to object when the judge allowed the 911 tape of the victim to be sent into the jury deliberation room to be a "gross misstatement of the factual record" because the transcript confirms the jury was brought into the courtroom for the playing of the 911 tape.
Finally, the judge rejected defendant's claim that his absence from the courtroom during the replaying of the tape was error because defendant was present when the tape was first played during trial.
Defendant was present in court on April 23, 2008, when the 911 tape was introduced during the testimony of Emily Grace Albano of the Gloucester County Emergency Response Center. Albano identified the tape containing the recording of the victim's 911 call on May 3, 2006. After the tape was received in evidence without objection, it was played for the jury.
On the morning of April 29, 2008, the jury was charged and then retired to deliberate. During the late morning and early afternoon, the jury sent out notes containing questions. In response to the first note, the judge provided further instruction to the jury. The defendant was apparently not produced for the judge's instruction.
After the jury sent out a second note seeking clarification on the definition of a knife, the prosecutor suggested that defendant be produced. The judge did not think that was necessary, as attorneys for both defendants were present. Defendant's attorney said he would defer to the court, but did not think his client "would take issue" with either of the proposed responses to the jury's questions.
Defendant was tried with a co-defendant, Omar Rhodes.
The jury's third note requested the replaying of the 911 tape and a recording of a detective's interview with the victim. They also asked what to do if they could not agree on a specific charge or question. Defendant's counsel had no objection to playing either tape and did not request that defendant be produced. At some point the judge suggested bringing the two defendants into the courtroom. It is not clear from the transcript whether that occurred, but from the judge's decision denying the PCR petition we will assume that it did not.
We are compelled to note the poor quality of the transcripts provided to us. There are no time references as to when the jury began deliberations, when the questions were sent out and responded to, and whether defendant was actually produced in the courtroom. --------
The 911 tape and the interview with the victim were replayed for the jury, and the judge instructed them in response to their question, without objection from defendant's counsel. Later that day, the jury returned guilty verdicts on five counts contained in the indictment.
In defendant's pro se letter brief, he maintains that his constitutional right to be present at trial was violated when he was not produced in court for the replying of the two tapes and the judge's instruction to the jury.
Defendant's right to be present at trial is protected by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, and by Article I, paragraph 10 of the New Jersey Constitution. State v. Dellisanti, 203 N.J. 444, 453 (2010). For defendant to prevail on his claim, he must establish that his absence was prejudicial to his defense. Id. at 458-59.
Defendant was present when the tapes of both the 911 call and the detective's interview were played during trial. Defendant's counsel suggested that defendant would not object to either the replaying of the tapes or the court's instruction, and there was never any objection raised before the trial judge to defendant's absence for either.
We conclude that defendant has failed to meet his burden of showing that his absence during the tape replays and jury instruction was prejudicial to his defense. Thus, we find no reversible error. We also conclude that defendant has not established that his trial counsel was ineffective for not objecting to his absence during these periods.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION