Opinion
DOCKET NO. A-4709-13T4
03-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KELVIN LEERDAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1109. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from a March 17, 2014 order denying his petition for post-conviction relief (PCR). Defendant argued he received ineffective assistance from his trial and appellate counsel. We affirm.
A grand jury charged and indicted defendant and two co-defendants with committing murder, felony murder, robbery, conspiracy to commit robbery, kidnapping, and related weapons offenses. One of the co-defendants pled guilty and testified for the State. Defendant and the remaining co-defendant were tried together.
After a lengthy trial, a jury found defendant guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); three counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(b); two counts of first-degree kidnapping, N.J.S.A. 2C:13-1; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The court imposed an aggregate sentence of life in prison subject to the No Early Release Act, N.J.S.A. 2C:4 3-7.2. We upheld the convictions and the Supreme Court denied certification. State v. Leerdam/Wingate, Nos. A-2090-09/A-3757-09 (App. Div. Aug. 30, 2012), certif. denied, 213 N.J. 388 (2013).
The same jury found co-defendant guilty of identical offenses.
Defendant filed his petition for PCR requesting an evidentiary hearing, contending his trial and appellate counsel rendered ineffective assistance. The PCR judge denied the petition without an evidentiary hearing, concluding:
Without so much as a certification, defendant makes bald assertions as to his trial counsel's failures. However, these assertions amount to nothing more than self-serving statements on the part of the defendant. A review of the trial transcripts shows that the defendant was appraised of his rights before signing an election not to testify form. In addition, the defendant fails to show that but[]for the alleged mistakes on the part of his trial attorney a different outcome would have resulted at trial.
. . . .
The [c]ourt finds that the defendant's self-serving arguments do not come close to achieving his burden and there is no issue or argument which calls for [] an evidentia[ry] hearing.
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR EFFECTIVELY COERCING HIM NOT TO TESTIFY.
POINT III
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO PRODUCE EVIDENCE PROMISED TO THE JURY DURING
HER OPENING STATEMENT, THEREBY EFFECTIVELY EVISCERATING THE DEFENSE.
POINT IV
THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIMS NOT ADDRESSED BY THE PCR COURT. (Not Raised Below)[.]
We need not reach defendant's contention in Point I, that the judge erred by concluding his petition is procedurally barred, because the PCR judge considered and denied the PCR petition on the merits.
We have also considered the contentions raised by defendant in his June 29, 2015 pro se supplemental brief and his September 25, 2015 pro se supplemental reply brief and conclude that they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). --------
For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test. We add the following brief remarks.
We reject defendant's contention that he was coerced not to testify at trial. The trial transcript shows the court fully informed defendant about his right to testify, defendant confirmed he understood his right, and defendant elected not to testify at trial. Defendant's decision not to testify was reached in consultation with trial counsel, and there is no credible suggestion that defendant was in any way coerced not to testify at trial.
We conclude there is no merit to defendant's contention trial counsel was ineffective for not producing evidence "promised to the jury during her opening statement." Defendant, in an effort to establish third-party guilt, maintains there were other individuals who committed these crimes. He asserts his counsel stated she would produce two witnesses who simultaneously conspired to steal money from the victim. The record shows, however, trial counsel tried but was unable to locate at least one of those witnesses, indicating to the trial judge that "I cannot . . . find him anywhere." Thus, as to this contention, defendant has not met prong one of Strickland.
Furthermore, defendant was not prejudiced because the jury considered and rejected copious evidence intended to show defendant did not commit the crimes, including testimony from an alibi witness for defendant; evidence that the two witnesses planned to steal the victim's money; evidence challenging the description of the shooter; and evidence questioning the believability of the co-defendant who testified for the State. Trial counsel argued third-party guilt to the jury, indicating the State's investigation was flawed because it failed to adequately consider other suspects. As a result, his contention that trial counsel was ineffective by mentioning there existed evidence of third-party guilt but failing to produce said evidence fails to satisfy prong two of Strickland.
We are also convinced that an evidentiary hearing was unwarranted. An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must make a prima facie showing of ineffective assistance of counsel by demonstrating a reasonable likelihood of success under the Strickland test. Ibid.; see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Defendant failed to meet this standard because he cannot demonstrate a reasonable likelihood of success under the Strickland/Fritz test.
After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION