Opinion
DOCKET NO. A-3410-13T4
02-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID L. BAKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1087. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David L. Baker appeals from a January 7, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C: 15-1(a) (count one), and fourth- degree obstruction of justice, N.J.S.A. 2C:29-1(a) (count five). The jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two), and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). The trial judge sentenced defendant to a thirteen-year term on count one with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent eighteen-month term on count five. On direct appeal, we affirmed defendant's convictions and sentence. State v. Baker, No. A-2708-09 (App. Div. September 14, 2011) (slip op. at 19), certif. denied, 209 N.J. 597 (2012).
At the end of the State's case, it dismissed a charge of fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(2) (count four).
To place defendant's arguments on appeal in context, we briefly summarize the essential background facts as set forth in our earlier opinion. On July 14, 2008, the manager of a variety store saw defendant carrying two cordless drill sets and two backpacks full of merchandise out of the store. Id. at 2. Because defendant had been in the store in the past, the manager recognized him. Ibid. As defendant was leaving, the manager attempted to direct him to the cash registers, but defendant "brushed" against the manager's shoulder and left. Id. at 2-3. The manager went after defendant and told him to stop. Id. at 3. Defendant told the manager "that there were 'people outside,' presumably to intimidate [the manager] so he would not follow him." Ibid. The store's surveillance video system recorded the entire incident. Ibid.
The manager called the police and then followed defendant to an apartment complex across the street. Ibid. As the manager approached him, defendant dropped the stolen merchandise, warned the manager "not to follow him because he had a knife[,] . . . [and] then lunged towards" the manager. Ibid. By this time, other individuals in the apartment complex had noticed the commotion and one of them saw defendant going into an apartment. Ibid. Two police officers soon arrived and, after the manager gave them a description of defendant, some residents "point[ed]" them toward the apartment. Id. at 4.
When the officers went to the apartment, they found defendant standing outside on the steps. Ibid. Defendant told the police, "'It's not me that you're looking for. It's not me.'" Ibid. An officer attempted to grab defendant's arm, but he "pulled away and fled." Ibid. After briefly losing sight of defendant, the officers spotted him, and after a chase, subdued and arrested him. Ibid. As defendant was being handcuffed, one of the officers asked him "whether he had a weapon in his possession[,]" and defendant replied "that he had a knife, but it was for work-related purposes." Id. at 5. The officers searched defendant, but did not find a knife. Ibid. The officers then took defendant back to the store, and the manager "identified [him] as the perpetrator '100 percent.'" Ibid.
On October 22, 2012, defendant filed a PCR petition contending that his attorney rendered ineffective assistance to him at trial. Defendant did not submit a certification in support of his petition. However, his attorney subsequently submitted a brief in support of the petition, together with three "supplemental letters" presenting several arguments, only two of which are raised in the current appeal.
First, defendant argued that his attorney was ineffective because he failed to request a Hampton or Kociolek jury instruction regarding the statement defendant gave to the police after he was apprehended concerning his ownership of a knife that he used for work purposes. Defendant also argued that his attorney was ineffective because he did not make a motion to recuse the trial judge. In his brief and supplemental letter submissions, defendant's PCR attorney alleged that the judge had previously presided over another matter involving defendant. After the jury acquitted defendant in that case, the attorney alleged the judge told defendant "that[] 'he is only allowed one miracle per century[.]'" The attorney asserted that this statement indicated that the judge "was unduly prejudiced in the case at bar."
State v. Hampton, 61 N.J. 250 (1972).
State v. Kociolek, 23 N.J. 400 (1957).
The attorney also alleged that, in another separate matter involving defendant, "the arresting officers were from" the town where the judge lived and where the variety store was located. According to the attorney, the judge "admitted to attending barbeques and family gatherings with these officers." Thus, defendant's PCR counsel argued that defendant's trial attorney should have made a motion to recuse the judge in the present matter.
The attorney did not allege that the "arresting officers" in the prior case were the same officers involved in the present matter. --------
Following oral argument, the PCR judge rejected both contentions in a thorough written decision. The judge found that the "jury instructions on the whole were not confusing and properly conveyed the applicable law." The judge also found that defendant's trial attorney had no factual or legal basis for filing a motion for recusal. This appeal followed.
On appeal, defendant raises the following contentions:
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. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO REQUEST THE TRIAL COURT [TO] INSTRUCT THE JURY PURSUANT TO STATE V. HAMPTON AND STATE V. KOCIOLEK.
C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO SEEK THE RECUSAL OF THE TRIAL COURT.
When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the 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). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the defendant 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); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Thus, "[a] convicted defendant 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Pierre, ___ N.J. ___, ___ (2015) (slip op. at 39) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).
Applying these principles, we find no ground for relief to have arisen as a result of the failure by trial counsel to request a Hampton or Kociolek charge. A Hampton instruction should be given where a defendant's statement is critical to the State's case, and the defendant challenges either whether the statement or some portion of it was made, or its overall credibility. State v. Jordan, 147 N.J. 409, 425 (1997). Failure to give such a charge is reversible error when the omission is "clearly capable of producing an unjust result[.]" Ibid. (quoting R. 2:10-2). "If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of the statement, the failure to give a Hampton charge would not be reversible error." Id. at 425-26 (emphasis added).
In this case, defendant's statement that he had a knife that he used for work did not decisively tip the scale in the State's favor. The State presented the eyewitness testimony of the store manager concerning defendant's use of the knife to threaten him as the manager followed defendant into the apartment complex and a videotape of the entire incident inside the store. Thus, even if a Hampton charge was appropriate under the circumstances of this case, we conclude that the failure of trial counsel to request the instruction was not clearly capable of producing an unjust result as required by the second Strickland prong.
Likewise, the omission of a request for a Kociolek charge did not satisfy the second prong of Strickland. A Kociolek charge informs jurors about the "generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Kociolek, supra, 23 N.J. at 421. As the Supreme Court has previously stated, it is a rare case where the failure to give that charge, standing alone, constitutes reversible error. Jordan, supra, 147 N.J. at 428. We discern no such error here.
Our review of the trial judge's charge to the jury indicates that she instructed them "to determine the credibility of the various witnesses," and reiterated that the jurors were the "sole and exclusive judges of the evidence, of the credibility of the witnesses and weight to be attached to the testimony of each witness." The judge specifically told the jury:
As the judges of the facts you are to determine the credibility of the witnesses,
and in determining whether a witness is worthy of belief and, therefore, credible, you may take into consideration any or all of the following: the appearance and demeanor of the witness, the manner in which he or she may have testified, the witness' interest in the outcome of the trial, if any, his or her means of obtaining knowledge of the facts, the witness' power of discernment, meaning judgment or understanding, his or her ability to reason, observe, recollect and relate, possible bias, if any, in favor of the side for whom the witness testified, the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence, whether the witness testified with an intent to deceive you, the reasonableness or unreasonableness of the testimony the witness has given, whether the witness made any inconsistent or contradictory statement, and any and all other matters in the evidence which serve to support or discredit his or her testimony.
Through this analysis as the judges of the facts you weigh the testimony of each witness and then determine the weight to give to it. Through that process, you may accept all of it, a portion of it or none of it.
We regard the effect of these thorough instructions concerning witness testimony, and the existence of evidence other than defendant's statement that he threatened the manager with a knife, to have precluded reversible error occurring as the result of the absence of a Kociolek charge. Thus, the PCR judge properly rejected defendant's contention that his trial attorney was ineffective by failing to request such a charge.
Defendant's claim that his attorney improperly failed to make a motion to recuse the trial judge also lacks merit. Defendant did not submit a certification with his petition concerning any of the allegations set forth in his PCR attorney's brief. Defendant did not even assert that he told his trial attorney about the judge's alleged statements in the two separate matters that preceded the current trial.
A defendant is obliged to establish the right to PCR by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. The court must consider the defendant's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." Cummings, supra, 321 N.J. Super. at 170. However, a defendant must present facts "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Here, defendant's petition is unsupported by cognizable evidence. He provided no certification attesting to the facts alleged by his attorney. Significantly, there are no allegations that: (1) the judge knew or socialized with the officers who testified in this case; (2) trial counsel even knew of the judge's statements; or (3) defendant ever asked the attorney to file a recusal motion. Thus, defendant's contention is a classic "bald assertion" that did not warrant an evidentiary hearing or PCR relief. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION