Opinion
DOCKET NO. A-4037-13T2
01-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RANDY JACKSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Randy Jackson filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Essex County, Law Division, Indictment No. 07-06-2174. Joseph E. Krakora, Public Defender attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Randy Jackson filed a pro se supplemental brief. PER CURIAM
Defendant Randy Jackson appeals from the October 25, 2013 order that denied his petition for post-conviction relief (PCR) after an evidentiary hearing to explore whether or not defendant voluntarily waived his right to testify in his own defense at his murder trial. Defendant also alleges that his trial counsel was ineffective in not calling an expert to testify at his pretrial Miranda hearing to determine the admissibility of his confession to the police. He also argues that, although his trial strategy was to deny that he was the shooter, his lawyer should have requested that the trial judge charge the jury on self-defense. Lastly, he argues that his lawyer should not have acquiesced to certain redactions in his confession regarding the victim's gang affiliation and his sister's (Lynch) mental state. Defendant is serving a sentence of thirty years in prison without parole for the shooting of his sister's boyfriend. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Eyewitnesses saw defendant shoot Lynch's boyfriend. The police also overheard Lynch scream at defendant at the scene, yelling, "you didn't have to shoot." Defendant, who was arrested at the scene, later confessed to the police that he shot his sister's boyfriend. The murder weapon was found nearby. For a more detailed description of the facts, see State v. Jackson, No. A-2379-08, (App. Div. Mar. 1, 2011) (slip op. at 3-7), certif. denied, 207 N.J. 64 (2011).
Defendant raised the following issues on direct appeal through counsel:
POINT I: THE COURT ERRED IN ADMITTING THE DEFENDANT'S TAPED STATEMENT BECAUSE IT WAS THE PRODUCT OF A MIRANDA VIOLATION.
POINT II: AN ACCUSATORY STATEMENT BY AN OUT-OF-COURT DECLARANT WAS ADMITTED AS AN EXCITED UTTERANCE THUS DENYING THE DEFENDANT THE RIGHT OF CONFRONTATION.
A. The Accusation By Lynch Was Not An Excited Utterance.
B. The Defendant's Right Of Confrontation Was Violated By Admission of Lynch's Statement.
POINT III: THE COURT FAILED TO SUPERVISE THE USE OF THE DEFENDANT'S AUDIOTAPED STATEMENT DURING THE PROSECUTOR'S SUMMATION RESULTING IN A DENIAL OF THE RIGHT TO A FAIR TRIAL. (Not Raised Below.)
POINT IV: THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE NEED TO FIND CORROBORATION OF THE DEFENDANT'S CONFESSION. (Not Raised Below.)
POINT V: ADMISSION OF TESTIMONY ON THE OBTAINING OF THE ARREST WARRANT FOR DEFENDANT ON THE CHARGE OF MURDER WAS HIGHLY PREJUDICIAL, AND WAS COMPOUNDED BY THE COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION. (Not Raised Below.)
In a pro se supplemental brief, defendant raised the following additional issues:
Defendant's pro se point headings are quoted verbatim.
POINT (1): THE INVESTIGATOR VIOLATED DEFENDANT'S RIGHT TO COUNSEL UNDER ARTICLE 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION.
POINT (2): STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ALLEGEDLY COMMITTED A CRIME OF MURDER PURPOSELY AND KNOWINGLY.
POINT (3): THE STATE FAILED TO SUBMIT TO THE DEFENSE A FULL AND COMPLETE DISCOVERY.
POINT (4): PROSECUTION MISCONDUCT ON SUMMATIONS, (T.D.C.) THREAT, DURESS, COERCION AND INDUCEMENT ON STATE WITNESS TO TESTIFY AGAINST THE DEFENDANT.
POINT (5): TRIAL COURT ERRED IN DENYING DEFENDANT'S WADE HEARING.
POINT (6): GRAND JURY MISCONDUCT PERMITTED BY THE STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS.
POINT (7): TRIAL COURT ERRED TO INSTRUCT JURY TO SPECIFY FINDING FOR BASIS OF CONVICTION. N.J.S.A. 2C:11-3(a)(1,2).
We affirmed and defendant filed a PCR petition. Judge Cifelli held a hearing to determine whether defendant was advised of his right to testify at trial. After making extensive findings of fact regarding the hearing, Judge Cifelli denied defendant's PCR petition.
Defendant now raises the following issues on appeal through counsel:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY AT THE MIRANDA HEARING WHICH WOULD HAVE DEMONSTRATED HE HAD NOT VOLUNTARILY WAIVED HIS RIGHT TO REMAIN SILENT, THEREBY RENDERING HIS STATEMENT TO LAW ENFORCEMENT INADMISSIBLE AT TRIAL.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO SPECIFICALLY REQUEST THE COURT INSTRUCT THE JURY REGARDING SELF-DEFENSE.
D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO VARIOUS REDACTIONS MADE TO HIS STATEMENT TO LAW ENFORCEMENT PURSUANT TO A MOTION MADE BY THE STATE.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.
POINT III: THE POST CONVICTION RELIEF COURT ERRED IN DENYING THAT ASPECT OF THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF, FOLLOWING AN EVIDENTIARY HEARING, RELATING TO TRIAL COUNSEL'S FAILURE TO PROPERLY REPRESENT HIM WITH RESPECT TO HIS RIGHT TO TESTIFY AT TRIAL, THEREBY EFFECTIVELY DENYING TO HIM HIS RIGHT TO TESTIFY IN HIS OWN BEHALF.
A. FACTUAL BACKGROUND.
B. THIS POST CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF BASED UPON TRIAL COUNSEL'S FAILURE TO PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT REGARDING THE CRITICAL ISSUE OF WHETHER OR NOT TO TESTIFY AT TRIAL IN HIS OWN DEFENSE, SINCE ITS FACTUAL FINDINGS WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE ARISING OUT OF THE EVIDENTIARY HEARING, AND THEREFORE ARE NOT ENTITLED TO DEFERENCE ON APPEAL.
Defendant filed a pro se supplemental brief raising the following single issue:
DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO CROSS-EXAMINE THE EXPERT WITNESS WHO AUTHORED AN AUTOPSY REPORT.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Pursuant to Rule 3:22-2(a), a criminal defendant is entitled to PCR relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.
With regard to claims of ineffective assistance of counsel, the governing law is well-established. The Sixth Amendment of the United States Constitution guarantees a person accused of crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-88, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (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 accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "[A]n otherwise valid conviction will not be overturned merely because defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
An appellate court sitting in review of an application for PCR "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Taccetta, 200 N.J. 183, 194 (2009) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
Defendant testified at the Miranda hearing, during which he accused his sister of shooting the victim. The trial judge found defendant's testimony to be incredible. When defendant was asked by the trial judge whether he had discussed with trial counsel the jury charge regarding his election not to testify, defendant responded affirmatively, indicating at a minimum that he was aware of his right to testify when the jury charge was discussed. Although the better practice, a voir dire regarding defendant's election not to testify did not occur here and is not required. State v. Savage, 120 N.J. 594, 630 (1990).
Here no such voir dire occurred. Fortunately, trial counsel was available to testify as to his recollection of his discussion with defendant on this topic. --------
After hearing defendant and his trial attorney testify at the PCR hearing concerning whether defendant was aware of his right to testify, Judge Alfonse J. Cifelli found defendant's testimony to be incredible and found trial counsel's testimony to be highly credible and reliable. He found "that counsel and petitioner specifically discussed whether or not it would be advantageous for the petitioner to testify on his own behalf."
We defer to Judge Cifelli's credibility findings. He based his finding that defendant knew of his right to testify on substantial credible evidence in the record, including trial counsel's testimony and the trial judge's question regarding the jury charge concerning defendant's election not to testify.
The alleged errors of defense counsel relating to objecting to the redactions in the confession and not seeking a self-defense charge are questions of trial strategy and judgment and not proper grounds for PCR relief. See State v. Harris, 181 N.J. 391, 488 (2004) ("Defendants have a right to a reasonable strategy based on reasonable investigation; they may not claim ineffective assistance merely because the strategy did not produce the result counsel sought."), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L. Ed. 2d 1034 (2001).
Defendant also claims that his lawyer should have called an expert to testify that, although defendant waived his Miranda warnings knowingly and intelligently, he did not do so voluntarily. In support of this contention, defendant presented Judge Cifelli with a report of a psychiatrist, prepared more than five years after the shooting, that was based on the psychiatrist's review of some of the discovery as well as his evaluation and interview with defendant conducted years after the trial. The expert came to this limited conclusion regarding voluntariness by accepting the facts as recounted to him by defendant. This version of the interrogation had been explicitly rejected at the Miranda hearing by the judge.
The trial judge listened to defendant's interrogation by police on tape, and heard no indication that defendant was pressured to confess. Given defendant's instant responses and lack of hesitation, the trial judge found "no evidence of [defendant's] impairment" on the tape itself. State v. Jackson, supra, slip op. at 13. The trial judge noted that towards the end of the confession, one of the officers "asked defendant, 'All right, have you been treated fairly today?' Defendant responded: 'Yes, by both of you officers.'" The trial judge found that answer persuasive in rebutting defendant's claim that he had not confessed voluntarily. In fact, the trial judge discredited defendant's Miranda testimony entirely, finding that he did knowingly, intelligently and voluntarily waive his rights. Had this newly proffered expert testified before the trial judge, his testimony would not have influenced the outcome of the Miranda hearing because it was based on the discredited facts set forth by defendant in his Miranda testimony.
Finally, in his pro se submission, defendant argues that the admission of the autopsy findings of Dr. Nobby Mambo, a non-testifying witness, through the testimony of Dr. Lyla Perez violated his right to confront the witnesses against him.
At the trial, defense counsel conducted a brief voir dire before declining to object to her expertise. On direct, Dr. Perez testified that she had reviewed Dr. Mambo's autopsy report, and had also reviewed his notes and photographs of the victim. Based on her review of the records, Dr. Perez concurred with Dr. Mambo's findings. Defense counsel then conducted a brief cross-examination, emphasizing the lack of gunpowder residue and the trajectories indicated by the entrance and exit wounds. The autopsy report was not admitted into evidence.
The burden of raising a Confrontation Clause objection to Dr. Perez's testimony rested with defendant. State v. Williams, 219 N.J. 89, 101 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). He made no such objection at trial and offers no alternative strategy that defense counsel should have employed. The record offers no valid reason to "fault defense counsel for not insisting that the State call a live witness who might have highlighted weaknesses in the defense." Ibid. (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 328, 129 S. Ct. 2527, 2542, 174 L. Ed. 2d 314, 332 (2009)). As such, we decline to address the merits of defendant's Confrontation Clause argument based upon his failure to raise or preserve this argument at trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION