Opinion
DOCKET NO. A-1420-14T1
07-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSE ELLWOOD WATKINS, a/k/a JESSE WAKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cape May County, 07-04-0240. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jesse Watkins appeals from the trial court's order denying his motion for post-conviction relief ("PCR"). We affirm.
Defendant was convicted after a 2009 jury trial of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), for killing his relative Craig White, who disappeared in February 1990. The State contended that defendant was motivated to kill White and dispose of his body because White had engaged in a sexual relationship with defendant's girlfriend. White's body was never found and there was no other physical evidence uncovered relating to his disappearance. Meanwhile, defendant himself left New Jersey within days of White's disappearance and did not surface again for seventeen years when he was arrested and charged with murder. The trial court sentenced defendant to a forty-five-year custodial term with a thirty-year period of parole ineligibility.
In November 2011, this court affirmed defendant's conviction on direct appeal, rejecting his various claims of trial error and that the verdict was against the weight of the evidence. State v. Watkins, No. A-5715-08 (Nov. 17, 2011). The Supreme Court denied certification. 210 N.J. 263 (2012).
In his PCR petition, defendant contended that both his trial counsel and his appellate counsel on direct appeal were ineffective in numerous respects. His arguments in that regard were presented through a brief and oral argument by his PCR counsel, as well as through a list of additional points raised in defendant's own submission. The trial court denied the petition without finding a need for an evidentiary hearing. The PCR judge issued an oral decision on September 30, 2014, detailing his reasons for the denial.
In his present appeal, defendant contends that the trial court should have granted him relief. He principally asserts that all of his previous attorneys — including trial counsel, counsel on direct appeal, and PCR counsel in the trial court — were ineffective in various ways. Specifically, his brief raises the following points for our consideration:
POINT I
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIME FACIE CASE OF COUNSEL'S INEFFECTIVENESS. (Partially Raised Below)
A. Trial Counsel Failed To Request A Passion/Provocation Manslaughter Charge.
B. Appellate And PCR Counsel Failed To Raise The Issue That The Trial Court Should Have Included A Passion/Provocation Charge Sua Sponte. (Not Raised Below)
C. Appellate And PCR Counsel Failed To Pursue Inadmissible Hearsay Testimony. (Not Raised Below).
D. Trial Counsel Failed To Adequately Cross-Examine A Key Witness Regarding A 1985 "Other-Crimes" Incident.
For the reasons that follow, we reject these arguments and affirm the PCR judge's denial of relief, with the exception of two points, noted infra, that were not procedurally barred and which may be presented and developed in a second petition.
POINT II
THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT ERRED BY PROCEDURALLY BARRING ISSUES RAISED BY DEFENDANT. (Not Raised Below)
Upon reviewing the trial record, we discovered the judge did issue a passion/provocation charge to the jury after having initially indicated earlier in the day that he was not planning to give that charge. We have called this discovery to the attention of appellant's counsel through the clerk's office. As a result of that communication, appellant's counsel has withdrawn Points I(A) and (B) relating to the passion/provocation issue.
In considering defendant's claims of his former counsel's ineffectiveness, we are guided by several well-known principles. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is assured the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (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, 58 (1987) (adopting the Strickland two-part test in New Jersey).
When reviewing such ineffectiveness claims, 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
Moreover, in considering defendant's arguments that his counsel on direct appeal in particular should have urged additional or different arguments in his favor, we must be mindful of the substantial discretion reposed in appellate counsel to be selective concerning which arguments to present to the appellate panel. Jones v. Barnes, 463 U.S. 745, 750-52, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983) (rejecting a "per se rule that appellate counsel must raise every nonfrivolous issue requested by the client" on direct appeal and recognizing the importance of "winnowing out weaker arguments on appeal and focusing on" the strongest claims and key issues); see also State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007) (noting that the precept that PCR counsel must advance any non-frivolous grounds insisted upon by a defendant in a PCR petition does not apply to defense counsel on direct appeal), certif. denied, 194 N.J. 444 (2008).
Defendant's first point is that his appellate counsel should have argued on direct appeal, and his PCR counsel should have likewise advocated, that the trial court prejudicially erred in admitting two hearsay statements made by Robert Mabry, who was deceased as of the time of trial. Mabry made these respective statements to his mother, Constance Mabry Tyler, and to Detective Blake Moore, who was investigating this case.
The gist of these conversations was that defendant had given Mabry's name to the police to lend support to defendant's false claim that he and Mabry had seen Craig White alive after White's disappearance in February 1990. The trial judge decided to admit Mabry's hearsay statements in the State's case over defendant's objection after conducting a Rule 104 hearing.
Defendant asserts that the trial court erred in allowing the prosecution to present Mabry's statements through Tyler and Moore because they were inadmissible under the hearsay rules and violated defendant's rights under the Confrontation Clause. He maintains that his prior appellate counsel and PCR counsel both should have urged that the admission of this hearsay tainted the trial and requires the verdict be set aside. We address each of the two statements in turn.
As the trial judge reasonably found, the out-of-court statement Mabry made to his mother was admissible under the hearsay exception for excited utterances, N.J.R.E. 803(c)(2). The State provided an adequate foundation that Mabry, who his mother described as upset, was under the stress of a startling event, i.e., learning of defendant's contrived story of a joint observation with Mabry of the missing victim, without Mabry having an ample opportunity to deliberate or fabricate. State v. Buda, 195 N.J. 278, 293, 296 (2008). To the extent Mabry was alluding to statements made by defendant to him, that embedded hearsay was admissible as statements by a party-opponent. See N.J.R.E. 803(b)(1) (the party-opponent exception); N.J.R.E. 805 (hearsay within hearsay). In addition, the statement by Mabry to his mother, a civilian who was not conducting a criminal investigation, was clearly not "testimonial" for purposes of Confrontation Clause analysis. See Ohio v. Clark, 576 U.S. ___, ___, 135 S. Ct. 2173, 2181-82, 192 L. Ed. 2d 306, 315-16 (2015) (likewise treating a declarant's statement to a private person as non-testimonial).
We agree with defendant that Mabry's statements to Detective Moore were most likely testimonial in nature. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 193-94 (2004). As such, the Detective's testimony recounting the conversation should not have been admitted over objection because defense counsel had no opportunity to cross-examine Mabry. However, that is inconsequential given the context of this case. Mabry's statements to the Detective essentially repeated what he told his mother. It is speculative and unrealistic to assume this cumulative testimony tipped the balance in causing the jury to convict defendant. The State's other evidence in the case was, as we canvassed in our prior opinion, very substantial. Watkins, supra, slip op. at 2-19, 36-39. Any error from the duplicative admission of Mabry's hearsay through the Detective was harmless. State v. Macon, 57 N.J. 325, 338-41 (1971).
As his next point, defendant claims that the trial court should not have admitted hearsay statements made by the victim to Anthony White and Khaledah White about facial injuries he sustained in an encounter with defendant during a 1989 trip to California. The statements were relevant proof of the victim's state of mind in fearing defendant out of concern for defendant's violent nature when he became agitated or was betrayed. See N.J.R.E. 401 (defining relevance); N.J.R.E. 404(b) (regarding proof of motive, intent and state of mind). The proof helped to explain the adverse change in defendant's relationship with the victim and how that change tied in with White's subsequent disappearance. Such statements the victim made to his other relatives are not testimonial under the Confrontation Clause. Crawford, supra, 541 U.S. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 193-94; see also Clark, supra, 576 U.S. at ___, 135 S. Ct. at 2181-82, 192 L. Ed. 2d at 315-16. The statements, to the extent they were considered for their truth, did not violate the hearsay doctrine because they reflected the declarant's state of mind. See N.J.R.E. 803(c)(3). Moreover, any error in their admission was harmless in comparison to the much more probative evidence of guilt, including defendant's own repeated inculpatory statements.
Lastly, defendant asserts that his trial counsel failed and was not permitted by the trial court to adequately cross-examine a prosecution witness, Harold ("Jaybird") Watkins, about certain prior hostile incidents involving the two men. This issue was explored in a Rule 104 hearing by the trial judge and essentially resulted in a ruling that defense counsel would be allowed to cross-examine Jaybird about those matters but would not be allowed to refer to the contents of defendant's own hearsay statements about Jaybird contained within police reports. As we noted in our prior opinion, the limitations imposed by the trial court were fair in disallowing defendant, who did not take the stand (as was his prerogative), to place before the jury his own hearsay statements without ever subjecting himself to cross-examination. Watkins, supra, slip op. at 36.
Nor are we persuaded that trial counsel's alleged failure to follow up on certain topics when cross-examining Jaybird amounted to unconstitutionally deficient performance or caused any significant prejudice. The tactical choice of what subjects defense counsel decided to press on cross-examination of Jaybird, who was not the State's principal witness, was within the scope of reasonable professional judgment and warrants judicial deference. Fritz, supra, 105 N.J. at 54. Defendant's reliance upon State v. Holmes, 290 N.J. Super. 302, 309-10, 312 (App. Div. 1996), involving a defense lawyer's deficient cross-examination of two key eyewitnesses to a homicide by failing to impeach them with their prior criminal histories, is misplaced.
Finally, we conclude that nearly all of the nineteen issues that defendant listed in his original pro se PCR petition, to the extent they did not overlap with points raised by his counsel that we have already discussed, were procedurally barred under Rule 3:22-4 (issues not raised in prior proceedings but could have been) and Rule 3:22-5 (issues previously adjudicated on direct appeal). The only issues that were not procedurally barred were defendants' vague claims that his trial counsel should have called additional unspecified witnesses (listed issue No. 18), and that his trial counsel "previously worked on the file while [he was] employed by the [Cape May County Prosecutor's Office]" (listed issue No. 19). We decline to address these issues here, as they are at present no more than vague allegations and were not developed before the PCR judge. Nothing in this opinion precludes defendant from filing a second petition developing these two claims, and demonstrating that they have merit. We uphold the court's dismissal of the rest.
These issues were apparently raised in a pro se brief submitted to the trial court, which has not been included in the record on appeal. According to the trial judge's oral decision and representations made in both defendant and the State's briefs, those nineteen issues are: (1) the trial judge gave his personal notes to the jury; (2) the trial judge told the jury it was "an easy case" and to continue deliberations when the jury expressed difficulty in reaching a decision; (3) the trial judge should have recused himself; (4) the trial judge did not grant a change of venue; (5) the trial judge and prosecutor were biased; (6) the trial judge did not allow cross-examination of witnesses; (7) statements by FBI agents were not admitted; (8) statements by Texas State Troopers were not admitted; (9) a statement of Tasha Green was not admitted; (10) the jury was racially biased; (11) witness tampering by the police; (12) a statement of Margaret Marion was not admitted; (13) the jury saw defendant in handcuffs; (14) a witness was not provided an opportunity to have her memory refreshed; (15) a deceased witness's statement was not admitted; (16) there was no physical evidence; (17) the victim fled the jurisdiction to avoid prosecution; (18) trial counsel failed to call additional witnesses; and (19) trial counsel previously worked on defendant's file while previously employed by the Cape May County Prosecutor's Office. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION