Opinion
DOCKET NO. A-3346-13T4
06-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD HOLMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0406. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Richard Holmes appeals from the January 7, 2014 Law Division denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The circumstances leading to defendant's arrest and conviction are more fully described in our prior decision affirming the conviction and sentence on direct appeal. State v. Holmes, No. A-2541-10 (App. Div. June 17, 2012) (slip op. at 2-6). Defendant, during a motor vehicle stop, was witnessed reaching into the rear seat of his vehicle and "fumbling in the back[.]" Id. at 2. The stop took place during the early hours of the morning in a high crime area, and as a result of observing defendant's movements in the vehicle, the police approached the car cautiously. Ibid. An officer shone a flashlight into the rear of the car and saw the butt of a handgun protruding from between the seats. Id. at 2-3. At trial, the defense centered on defendant's claim that because the windows in the car were tinted, the officer could not have seen anything in the interior of the vehicle. Defendant offered three witnesses on the issue.
The first was Ousmane Ouedraogo, the person who had installed the window tinting. Id. at 4. During a hearing out of the jury's presence, Ouedraogo said that he had completed the job after defendant's arrest, but that defendant asked him for a receipt dated before the stop. Ibid. Nonetheless, Ouedraogo was called as a witness because he was not absolutely certain of the date the work was performed. We discuss his testimony in greater detail in the relevant section.
The second witness was Ramona Addison, the mother of defendant's children. Id. at 4-5. The judge had issued a sequestration order in the beginning of the trial, which Addison heard. Id. at 5. Addison was present throughout the proceedings. In his closing charge, the judge instructed the jury they could take her violation of the sequestration order into account in weighing her credibility.
Addison testified that the windows in the car were tinted prior to defendant's arrest. She produced an automobile insurance report and photographs purportedly depicting the tinted windows at that time. Despite the absence of any insurance company employee regarding the documents, they were admitted into evidence. Ibid.
Defendant proffered a third witness, the passenger in his vehicle when the men were stopped. The passenger testified that he and defendant were removed from the car immediately after the stop and that it was searched completely. He also said the windows were tinted. The passenger claimed the gun was found only after the complete search of the vehicle.
Defendant was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Id. at 1. On June 18, 2010, he was sentenced to eight years imprisonment subject to four years of parole ineligibility. Ibid.
Defendant raised an additional factual claim, which was not reduced to certification or affidavit, in his PCR petition. Addison was interviewed by defendant's attorney regarding an encounter she alleged she had with one of the jurors on the Tuesday before the sentence date. Addison said that as she was driving her children to or from school, she saw one of the jurors, a security guard, with whom she had been acquainted for years. The juror told her that the jury convicted defendant only because he did not testify. This information was attached to the PCR petition in the form of Addison's handwritten statement.
The Law Division judge concluded that defendant had failed to demonstrate a prima facie case of ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He found defendant's multiple claims raised unsubstantiated assertions, or issues already addressed on the direct appeal. Additionally, he noted that some of defendant's claims were not supported by a certification or affidavit.
Now on appeal, defendant raises the following points of error:
POINT I
DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST[-]CONVICTION RELIEF
POINT II
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST[-]CONVICTION RELIEF
(A) Counsel was ineffective for failing to engage in a minimal level of trial preparation in preparation of a key defense witness.
(B) Counsel was ineffective for failing to object to the prosecutor's closing remarks and use of facts not in evidence
(C) Counsel was ineffective for failing to investigate the facts of the case and argue applicable mitigating factors at sentencing
(D) Counsel was ineffective for failing to motion for a new trial after she became aware of evidence of the jury being tainted
POINT III
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
I.
In order to establish ineffective assistance of counsel, a defendant must meet the two-pronged test of Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "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 establish "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). In this case, defendant is unable to establish that counsel committed unprofessional errors, or that the outcome would have been different but for trial counsel's strategic decisions.
Moreover, a defendant "must do more than make bald assertions that he 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). Specific facts must be alleged which "demonstrate counsel's alleged substandard performance." Ibid.
II.
Defendant contends his attorney was ineffective because she did not adequately prepare and/or erred in calling Ouedraogo. Before calling Ouedraogo as a witness, however, a hearing was conducted. Given the circumstances, that was a reasonable approach for counsel to take. Ouedraogo said that he tinted the windows on the vehicle sometime in October 2008, after the arrest, not on December 15, 2007, as noted on the receipt defendant requested. He acknowledged that he could not be absolutely certain about the date he performed the work, but that the date was on or about October 10, 2008.
After that hearing, defendant's attorney stated she was not calling Ouedraogo. Because of the difficulties she faced with regard to authenticating the insurance report and photos, however, she reconsidered. Counsel discussed the issue of strategy on this precise point with defendant. In fact, the court elicited defendant's acknowledgment that he and counsel were going to confer about the decision to call Ouedraogo before it was made. Thus the record leads us to conclude that the decision was strategic and made after consultation with defendant.
Strategic decisions are presumed to fall "within the wide range of reasonable professional assistance." State v. Arthur, 184 N.J. 307, 318-19 (2005); State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.) ("[T]he decision at trial as to what testimony to present is clearly a matter of trial strategy which is entrusted to the sound discretion of competent trial counsel."), certif. denied, 94 N.J. 531 (1983). Because Ouedraogo could not be absolutely certain of the date he did the work, the attorney concluded that his potentially damaging testimony was necessary. In order for her to be able to proffer the insurance documentation and photographs that seemingly corroborated Addison's testimony that the car windows were tinted before the arrest, she decided to call him.
III.
Defendant also claims that counsel was ineffective for failing to object to the prosecutor's closing. These remarks were already addressed on appeal. See Holmes, slip op. at 15-20. This includes the suggestion that the passenger's testimony was "suspect" and the argument that Ouedraogo's testimony was credible. Ibid. Having found the comments unobjectionable, defense counsel's failure to object was not outside the range of competent representation and did not prejudice the outcome.
IV.
Defendant also asserts that counsel was ineffective as a result of "failing to investigate the facts of the case and argue mitigating factors at sentencing[.]" Defendant first argues two mitigating factors were applicable: mitigating factor one, that his conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1), as well as factor two, that he did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). Defendant's possession of a handgun was a wrong deemed by our Legislature to constitute a crime of the second degree; the conviction for which carries a presumptive sentence of incarceration. Clearly, by its assignment of the degree of crime to the prohibited conduct, our Legislature contemplated that criminal possession of a handgun posed a significant risk of harm. As such, we conclude that defendant's argument is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also argues that mitigating factor eleven was applicable; that imprisonment of the defendant would entail excessive hardship to his dependents since there would be the loss to his children of his support while incarcerated, N.J.S.A. 2C:44-1(b)(11). That loss is experienced by every child whose parent is incarcerated. Accordingly, we see no merit to this contention either. R. 2:11-3(e)(2).
V.
Nor do we agree with defendant that the statement allegedly made by a juror to Addison established an impermissible "jury taint" that entitles him to a new trial. Had counsel sought to have that juror interviewed, the application would have been denied. R. 1:16-1 ("Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney interview, examine, or question any grand or petit juror with respect to any matter relating to the case."); Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 1:16-1 (citing State v. Kociolek, 20 N.J. 92 (1955)) (noting that good cause intended by the rule "is not impropriety or defect in the motives or methods or thought processes by which the jurors reached their verdict but rather some event or occurrence injected into the deliberations in which the capacity for prejudice inheres."). Our courts, understandably, are reluctant to conduct post-trial juror interviews except in the most extraordinary circumstances. See, e.g., State v. DiFrisco, 174 N.J. 195, 240-42 (2002) (finding that an alternate juror's statements regarding issues with juror deliberations was insufficient to "warrant the extraordinary procedure of post-trial interrogation of the . . . jurors."); State v. Loftin, 146 N.J. 295, 380-82 (1996) (insufficient grounds to recall and interview jurors to determine if "improper considerations had tainted the verdict" when a juror expressed sympathy towards victim's family in newspaper article post-sentencing); State v. Freeman, 223 N.J. Super. 92, 116-121 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989) (post-verdict discovery that jurors had a betting pool as to the date of the verdict, and may have "impermissibly considered [defendant's] failure to testify" in arriving at verdict, were insufficient grounds to recall and interview jurors); but see State v. Young, 181 N.J. Super. 463, 471 (App. Div. 1981) (noting that "proof of juror bias or the injection by a juror in the deliberations of personal knowledge of material facts not in evidence" are substantial grounds justifying reversal of the verdict), certif. denied, 91 N.J. 222 (1982).
Even were we to consider Addison's statements in the most favorable light to defendant, the juror's minimization of his act of wrongdoing to a family member was simply not a statement that rises to the level required to trigger juror interviews. Trial counsel's failure to seek to interview the juror is thus not ineffective assistance.
VI.
Defendant also contends, and we reject, that his appellate attorney was ineffective. Clearly the Strickland standard applies to claims of ineffective assistance of counsel at the appellate level, State v. O'Neill, 219 N.J. 598, 610-11 (2014). Defendant does not identify the additional points that should have been raised, however, that would have resulted in a different outcome. See R. 2:11-3(e)(2).
VII.
Lastly, defendant contends the Law Division judge erred by not conducting an evidential hearing. Since we agree that there was so little merit to the issues raised that defendant did not establish a prima facie case, we also conclude no evidentiary hearing was necessary. See R. 3:22-10(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION