Opinion
DOCKET NO. A-0069-10T1
05-10-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN GILMORE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Alexander J. Rasi, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-04-0370.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Alexander J. Rasi, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin Gilmore appeals from the order denying without an evidentiary hearing his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. Defendant argues that his trial counsel was ineffective because he did not develop and forcibly advance a theory that a third party committed the robbery for which defendant was being tried, but instead argued that the State's case was laden with reasonable doubt. Defendant also argues that his appellate counsel was ineffective for not raising this issue on appeal, and that counsel who argued his PCR petition was also ineffective for not raising the issue. Having reviewed the record in light of defendant's arguments, we conclude that trial counsel was not ineffective simply because he undertook a trial strategy different from one now suggested by his client. Accordingly, we affirm.
The facts underlying defendant's conviction are set forth in our opinion affirming his conviction on direct appeal, State v. Gilmore, No. A-6528-04 (App. Div. December 11, 2008), so we need not repeat them in their entirety. These are the facts relevant to this appeal. Defendant was tried on an indictment charging him with committing the November 10, 2002 armed robbery of Jan Sala at a Citgo gas station located at 200 Edgar Road, 1/9 Park Avenue in Linden (the Citgo robbery). On the same date, someone attempted to rob Ajit Singh at a Sunoco gas station in Sayreville (the Sunoco robbery). Defendant confessed to committing the Sunoco robbery. Following pretrial hearings, the trial court ruled that testimony concerning the Sunoco robbery would be admissible under N.J.R.E. 404(b) as other crimes relevant to identification.
A third robbery occurred at a Raceway gas station in Old Bridge the night before the Citgo and Sunoco robberies. The court denied the State's motion to admit evidence of the Raceway gas station robbery at defendant's trial.
In disposing of the direct appeal, we described Sala's account of the Citgo robbery in the following way:
At approximately 2:10 a.m. Sala was alone and sitting in the attendant booth when a black Pontiac Grand Am pulled up to the gas pump. After Sala opened the car's tank, the driver approached him with a "long knife," stating, "I'm an American guy, give me your money." Sala gave the man the $132 that was in his money pouch; the man quickly jumped into his car and sped away. Sala ran back to the attendant booth and called the police.When specifically asked about the location of the "plastic sheet," Sala testified it was on the "right-hand side front glass."
Sala testified that the assailant was a white male about twenty-five or thirty-years old and 5'8" tall. Sala said there was silver tape over the license plate, but he could make out the number [seven]. The car also had a black plastic sheet and silver tape over the right-side window. Sala further testified that during the incident he was "afraid for my life."
[Gilmore, supra, slip op. at 14-15.]
Singh testified he was working at the Sayreville Sunoco station on November 10, 2002, at 10:50 p.m., when a man driving "a black Pontiac with duct tape on the rear passenger-side window" pulled in to get gas. There was a lady in the passenger seat. As the driver walked to the rear of the car to open its gas tank, he pulled out a fifteen-inch knife and demanded, "Give me the money, bastard." Singh started walking backwards and then yelled to another attendant, who was in the restroom. The man returned to the car and fled. Singh wrote the license plate number, NV748S, on a piece of paper and later gave it to the police. The next morning at 7:00 a.m., Singh went to the police station where he identified defendant.
Defendant was arrested on November 11 at 3:53 a.m. while driving his mother's black, four-door Pontiac Grand Am, with license plate NV748S. The arresting officer found a large kitchen knife under the front passenger seat. Two days later a detective accompanied Sala to the Sayreville Police Department, where he identified the Pontiac Grand Am defendant had been driving when arrested and the knife removed from beneath its seat as the car and weapon used by the man who had robbed him. Upon close inspection, the detective observed pieces of silver duct tape on the "N" and "V" of the license plate.
The detective took a statement from Sala and then drove to the Linden Police Department where Sala was shown a photo array that included a photo of defendant. Sala identified the photo of another individual in the array. During trial, the State could not locate the original photo array. Defense counsel and the prosecutor stipulated that in the original array, photo number two was the defendant, but Sala identified photo number four as his assailant. Gilmore, supra, slip op. at 15. Nonetheless, in the courtroom, Sala identified defendant as the man who robbed him.
The State also presented the testimony of the young lady who was in the Pontiac Grand Am with defendant on November 10, 2002. She testified that she was with defendant when he stopped at two gas stations on November 10, 2002, one on "1 and 9," the other in Sayreville. When they were at the gas station on "1 and 9," defendant got out of his car, spoke to the gas station attendant, and then got back in the car and drove off. The gas station attendant was "running behind the car." According to the young lady, defendant did not get gas. When she asked defendant why the guy was chasing the car, he simply said "[d]on't worry about it."
The jury found defendant guilty of first-degree robbery and two weapons offenses. At sentencing, the judge merged the weapons offenses into the robbery offense and sentenced defendant to a prison term of eleven and one-half years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence on direct appeal. Gilmore, supra, No. A-6528-04. The Supreme Court denied certification. State v. Gilmore, 198 N.J. 316 (2009). Three months after the Supreme Court denied certification, defendant filed his PCR petition and thereafter filed a supporting brief. The court appointed counsel to represent defendant and counsel filed another brief. Following the trial court's denial of the PCR petition, defendant filed this appeal.
Defendant raises the following point for our consideration:
POINT I.
BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND POST-CONVICTION RELIEF COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.
The Sixth Amendment to the United States Constitution guarantees to a person accused of crimes the right to effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-part Strickland test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
When applying the Strickland standard, "[j]udicial scrutiny of counsel's performance must be highly deferential." Supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A defendant's complaint about an attorney's trial strategy "will not serve to ground a constitutional claim of inadequacy of representation by counsel." Fritz, supra, 105 N.J. at 54.
Defendant asserts that his trial counsel "failed to exploit the serious flaws in the State's case and focus the jury on the defense of third-party guilt[.]" Defendant suggests that his trial counsel could have effectively argued that someone else robbed the Citgo station by: emphatically contrasting Sala's testimony that the Pontiac's front passenger side window was covered with a plastic sheet and silver duct tape, with Singh's testimony and photographic evidence demonstrating that the duct tape was on the rear passenger window, and the front passenger- side window was undamaged; arguing that Sala's identification of someone else as the robber was reliable and accurate; and adding further details to, and emphasizing more, a stipulation that when Sala testified at pre-trial hearings he did not identify defendant.
Defendant's arguments involve his trial counsel's strategic decisions. In his summation, trial counsel chose to attack Sala's ability to accurately make and recount his observations. Counsel argued that Sala's selection of another person from a photo array not only raised reasonable doubt about Sala's in-court identification, but also raised the question of why the police did not question or investigate the man Sala identified as the robber. Noting that Sala had, "two or three times before trial," failed to identify defendant, counsel argued that the police prompted Sala's identification not only of defendant, but of his car as well, because the police had focused upon defendant after he confessed to the Sayreville robbery. Defense counsel's theme in summation was that the police had prompted Sala to identify a suspect in another robbery, his car, and the weapon he used in the other robbery to bolster the State's weak circumstantial case.
Defendant has made no attempt to show how the strategy he now suggests is significantly different from that chosen by trial counsel, or how a difference in strategy would have affected the outcome of the trial. The nearly impossible task of answering such questions is one reason why a defendant's complaint about an attorney's trial strategy will not serve to ground a constitutional claim of inadequacy of representation by counsel. See Fritz, supra, 105 N.J. at 54.
We fail to discern how defense counsel arguing about the location of the duct tape would have made any difference in the outcome of this trial. The State offered irrefutable evidence that the car defendant drove on November 10, 2002 had duct tape on some of its exterior parts, albeit not on the front passenger-side window. It is unlikely, if not inconceivable, that jurors would have believed more than one Pontiac Grand Am, driven in the area of the robberies during an eight-hour period on November 10, 2002, had duct tape on their windows. We certainly cannot conclude such an argument would have been more effective than defense counsel's argument that the police prompted Sala to identify defendant's car.
Similarly, we fail to discern any method for measuring the effectiveness of either the argument that Sala correctly identified the perpetrator from an array of photographs, or the argument that Sala's identification of the photograph coupled with his pre-trial inability to identify the defendant created a reasonable doubt as to whether defendant was the perpetrator.
To reiterate, second-guessing trial counsel's strategy does not establish that trial counsel was ineffective. Our Supreme Court rejected such a theory in Fritz more than twenty-five years ago.
Our conclusion that trial counsel was not ineffective disposes of defendant's argument that the attorneys who argued his direct appeal and his PCR petition before the trial court were also ineffective.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION