Opinion
DOCKET NO. A-4899-12T4
06-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES CALHOUN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-05-0707. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant James Calhoun appeals from the Law Division's denial of his petition for post-conviction relief (PCR) without holding an evidentiary hearing. On appeal, he raises numerous arguments. We have considered all of defendant's arguments in light of the record and applicable law. We affirm.
An Ocean County Grand Jury indicted defendant and charged him with: first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree carjacking, N.J.S.A. 2C:15-2; second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3; two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). We summarized the facts leading to defendant's indictment and his conviction for the kidnapping and sexual assault of his victim in our consideration of defendant's direct appeal and they need not be repeated here. See State v. Calhoun, No. A-4901-08 (App. Div. July 29, 2011) (slip op. at 3-7), certif. denied, 209 N.J. 97 (2012).
A jury convicted defendant of the lesser included offense of second-degree kidnapping, first-degree carjacking, second-degree burglary, the lesser included offense of second-degree robbery, one count of first-degree aggravated sexual assault, and second-degree sexual assault. He was acquitted of the other charged offenses.
At sentencing, in response to the State's motion, the court sentenced defendant on the aggravated sexual assault conviction as a persistent offender, to an extended term of thirty years, N.J.S.A. 2C:44-3(a), subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining sentences, which also were subject to NERA, were to be served concurrently.
We affirmed in an unpublished decision, see State v. Calhoun, supra, slip op. at 3, and the Supreme Court denied defendant's petition for certification. State v. Calhoun, supra, 209 N.J. at 97.
Defendant filed a pro se petition for PCR, which was subsequently amended and supplemented through his counsel's and his additional pro se submissions. In his various PCR filings, defendant claimed ineffective assistance of counsel based upon counsel: (1) failing to advise him that he could testify at a Miranda hearing; (2) failing to prepare him to testify at trial, and advising him that if he testified he could be questioned about the details of his prior sexual offense in Virginia; (3) not moving to dismiss the indictment because it was based on hearsay; (4) not calling the victim's mother as a witness; (5) failing to object to certain comments made by the prosecutor in summation; and (6) failing to challenge the constitutionality of the consent search of his sister's residence and the warrant for his arrest. He also claimed the denial of a fair trial claiming error in the admission of his statement to police and in allowing his former girlfriend to testify.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On January 11, 2013, the court considered the parties' oral arguments and denied the petition. In a comprehensive oral opinion, the court addressed and rejected each of defendant's arguments. As to defense counsel's performance at the Miranda hearing, the court found it plain from the record defendant was aware of his right to testify and discussed the matter with counsel. Moreover, it was obvious defendant's decision not to testify was a strategic one, as he risked undermining his claim that he was unable to understand and waive his rights.
Regarding defendant's proposed trial testimony, the court agreed counsel misadvised defendant regarding the extent to which he could be cross-examined about his prior conviction for a similar offense. However, defendant could not prove ineffective assistance of counsel because there was no reasonable probability that, if defendant had testified, the verdict would have been different, as the evidence of defendant's guilt was overwhelming. Also, even though defendant did not testify, defendant's testimony on these issues would not have been persuasive, particularly given his extensive criminal history, about which he would have been cross-examined, albeit with the prior offenses sanitized. In any event, through cross-examination and counsel's argument, the jury was made aware of defendant's claim that he had a prior relationship with the victim and that their encounter on the night in question was consensual, and of his claim that his confession was not voluntary.
The court also addressed defendant's argument about the validity of the indictment. The court found counsel had made two motions to dismiss the indictment, both of which were appropriately denied. Contrary to defendant's argument, it was permissible for an indictment to be supported by hearsay evidence. Moreover, any alleged deficiency in the indictment had been remedied by the jury's verdict.
Concerning counsel's alleged failure to call the victim's mother as a witness, counsel had placed on the record the basis for his reasonable, strategic decision. Thus, there was no showing of ineffective assistance of counsel. The court also addressed defendant's claim related to the prosecutor's summation. The court found that not all of the comments about which defendant complained were objectionable, because the prosecutor's words represented fair comment on the evidence. Thus, even if defense counsel had objected, it was unlikely that all of the objections would have been sustained. And, if the objections had been sustained, the court would have issued a curative instruction, so it is unlikely that the jury's verdict would have been different.
Finally, the court found defendant's arguments regarding counsel's failure to contest the validity of the consent search and arrest warrant were procedurally barred, and, in any event, did not satisfy the test for proving ineffective assistance of counsel.
In the present appeal, defendant raises the following issues through counsel:
POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS FOR MISADVISING DEFENDANT THAT IF HE WERE TO TESTIFY, THE JURY WOULD LEARN OF HIS PRIOR SIMILAR CONVICTION.
POINT II: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL COUNSEL FAILED TO FULLY INFORM DEFENDANT THAT HE COULD TESTIFY AT THE MIRANDA HEARING.
In a pro se supplemental brief, defendant argues:
POINT ONE:
BECAUSE THE EXISTING RECORD PROVES CUMULATIVE ERROR(,) VIOLATED THE 6TH AND
14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND DEPRIVED THE PETITIONER OF A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL, THE CONVICITON MUST BE REVERSED ON THE EXISTING RECORD PURSUANT TO STRICKLAND v. WASHINGTON.
A. Ineffectiveness claims relax procedural bars: R. 3:22-4.
B. Ineffective trial and post-trial counsel.
1. Authority on ineffective assistance of counsel claims.
2. Record (-) proven ineffective counsel.
C. The cumulative impact of the developed claims warrants reversal of the conviction without a hearing[.]
In his brief, defendant elaborates and claims ineffective assistance due to counsel's failure to call the victim's mother, and to contest the constitutionality of the consent search of his sister's home, and of his arrest. He also claims error in the trial court's admission of his statement to police. In his appendix, defendant includes a certification in which he also argues ineffective assistance of PCR counsel for failing to advance his arguments regarding: the State's failure to produce a fingerprint analyst at trial; trial counsel's ineffectiveness in not requesting a jury charge regarding witnesses' prior inconsistent statements, or obtaining information about a police officer's employment history; and the admission of defendant's jacket and boots through perjured testimony.
We begin our review by limiting its scope to those arguments that are not procedurally barred. On direct appeal, we found no error with the admission of defendant's statement to police. State vs. Calhoun, supra, slip op. at 15. Therefore, we will not re-visit that argument. R. 3:22-5. The remainder of defendant's pro se issues are either barred for failure to raise them on direct appeal, R. 3:22-4(a); State v. Echols, 199 N.J. 344, 357 (2009); State v. Preciose, 129 N.J. 451, 459 (1992), or were appropriately rejected for the reasons given by the PCR court and are insufficient to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The record supports the PCR court's findings regarding counsel's failure to call the victim's mother as a witness. Also, defendant raises no basis for concluding that the search and arrest were invalid; the record reflects that defendant's sister consented to the search of her home and also includes an affidavit in support of the arrest warrant, indicating how defendant was identified as the victim's assailant. --------
We also will not consider defendant's arguments raised in his pro se appendix for the additional reasons that he did not raise those issues in his petition below, notwithstanding ample opportunity to do so, and because the arguments were not raised in defendant's brief, with an opportunity for the State to respond. R. 2:6-2(a)(5); N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 67 n.2 (App. Div. 2014); Mid-Atl. Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011).
Turning to the two remaining issues, counsel's alleged failure to provide competent advice on the right to testify at trial and at the Miranda hearing, the legal standards governing our review are clear. Because the PCR court did not conduct an evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 421 (2004 ), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
A PCR proceeding "is a defendant's last opportunity to challenge the fairness and reliability of a criminal verdict in our state system. It is a safeguard intended to ensure that a defendant was not unjustly convicted." State v. O'Neil, 219 N.J. 598, 609-10 (2014) (citations and internal quotation marks omitted). Claims of ineffective assistance of counsel are cognizable on PCR, and must be proven by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); Preciose, supra, 129 N.J. at 459.
Courts normally should grant an evidentiary hearing if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 596 (2002); Preciose, supra, 129 N.J. at 462. Whether to hold a hearing on a PCR petition is a matter of judicial discretion. R. 3:22-10(b); State v. Jones, 219 N.J. 298, 311 (2014); Preciose, supra, 129 N.J. at 462; State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A court need not hold a hearing if it perceives that the hearing would be unhelpful in its analysis of the claims asserted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). On the other hand, hearings may be required where there is a factual dispute on matters outside the trial record, Jones, supra, 219 N.J. at 302, 308-09, with factual disputes viewed "in the light most favorable to the defendant." Id. at 311. "If, with the facts so viewed, the PCR claim has a reasonable probability of being meritorious, then the defendant should ordinarily receive an evidentiary hearing in order to prove his entitlement to relief." Ibid. (citations omitted).
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Goodwin, supra, 173 N.J. at 596; Preciose, supra, 129 N.J. at 463. Pursuant to that test, defendant must show that his counsel's performance was deficient, and that the deficiencies were so serious that they deprived him of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. He must do so by presenting more than "bald assertions" that he was denied the effective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170.
As to the first prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .
[Ibid.]
As to the second prong, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Thus, to be successful on the second prong, defendant must show a reasonable probability that but for counsel's errors the outcome of his trial would have been different; "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This is "an exacting standard." State v. Allegro, 193 N.J. 352, 367 (2008).
Turning our attention to defendant's argument that his counsel failed to adequately advise him regarding his constitutional right to testify, State v. Savage, 120 N.J. 594, 626-31 (1990), we agree with the PCR court that counsel erred to the extent he misstated that the particulars of defendant's prior sexual assault conviction could be introduced on cross-examination. However, we also agree defendant failed to demonstrate a reasonable probability that the error affected the outcome of the case.
Before trial the prosecutor moved under N.J.R.E. 404(b) for permission to affirmatively use defendant's prior conviction in Virginia for kidnapping and sexual assault as proof of motive, intent, and to disprove the defense that the victim consented to the sexual acts. The court denied that motion. There was never any ruling on the State's use of defendant's prior convictions for impeachment purposes should defendant testify. However, defendant decided to not testify at trial, and the court and defense counsel examined defendant on the record about his decision.
In a detailed examination of defendant, the court confirmed that he made a "conscious" decision to not testify after having "a full and fair opportunity to make that decision." Defendant confirmed he knew he had a constitutional right to testify, but if he chose to testify, "certain questions could be asked of [him] regarding [his] criminal conviction." He also understood, if he chose to not testify, the court would charge the jury it was not "to consider for any purpose or in any manner" defendant not testifying during the trial. Finally, defendant told the court he understood all of his options and that his decision was voluntary - he had not been "threatened, forced or coerced" into making his decision.
Defense counsel also reviewed with defendant his decision to not testify in light of defendant's criminal record. In his examination of defendant, counsel confirmed that they had discussed defendant's decision as to whether to testify for over two years. Counsel also had defendant acknowledge on the record the advice counsel gave him about the State's use of his prior conviction if defendant testified:
[DEFENSE COUNSEL]: You understand that if you took the witness stand, [the prosecutor] would have a field day with the prior incident in Virginia?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Which is a sexual charge for which you plead guilty to?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: And you understand if the jury found that out that we would be paddling upstream, so to speak, without a paddle, because we think, or at least I think if they found out about Virginia, there wouldn't be any question in their mind about the evidence in this case. They would basically think, if it happened once, it would happen again. Are those the sum and substance of our conversation?
THE DEFENDANT: Yes.
Afterward, defendant told the court: "I knew I couldn't get up there and testify. . . . I knew early on. I wouldn't be able to testify because of my criminal record. I told [my attorney] early on that you would have to tell my story for me."
We agree with the PCR court that counsel clearly overstated what use the prosecutor could make of the Virginia conviction. Absent defendant's opening the door to greater cross-examination, his record would have been sanitized so that the jury would never have been told any of the details of defendant's Virginia conviction. State v. Brunson, 132 N.J. 377, 391-92 (1993).
Nevertheless, there is no reasonable probability that, but for counsel's error, defendant would have testified and the verdict would have been different. At the PCR hearing, defendant told the court he primarily wanted to tell the jury about his allegedly having known his victim very well for a long period of time and,
how, in fact, we had prior sexual relations and drug usage numerous times at her house, at [a motel] and specifically the night in question, at my sister's house . . .not in the backseat of her car as she testified.
. . . .
That the only truthful statements [she] told was that we both used drugs the night in question together and voluntarily. Specifically, I was shooting heroin by way of a needle and socks wrapped around my arm to make the vein more pronounced, and [she and I] smoked numerous marijuana blunts laced with meth, so those were not socks used for binding [the victim]. I was shooting heroin with those socks.
. . . .
And the Virginia incident . . . I would have informed the jury, if necessary, the alleged victim in that case recanted her allegations.
. . . .
We find no reasonable probability that this proposed testimony would have aided the defense. In any event, the jury considered defendant's claim that his interactions with the victim were consensual, and the product of their pre-existing relationship. That theory was presented through arguments by defense counsel, and defense counsel's examination of witnesses. The theory, however, lacked corroborating evidence and it was seriously undermined by defendant's girlfriend, who testified on behalf of the State that, at defendant's request, she had gone to the victim's home and obtained information about the vehicles parked there, and a description of the house and property. This was the information defense counsel used in his cross-examination of the victim, to suggest defendant had been in a relationship with the victim, and had been to the victim's home. Defendant's theory was also contradicted by the victim's testimony, and the substantial testimonial and physical evidence that corroborated the victim's claim of her abduction and assault, including the 911 call she made and the results of her sexual assault examination.
Defendant's entirely uncorroborated testimony would also not have persuaded the jury to reach a different verdict, particularly since defendant's credibility would have been undermined by cross-examination, revealing his substantial criminal history, notwithstanding that the offenses would have been sanitized. Harris, supra, 181 N.J. at 438; Cummings, supra, 321 N.J. Super. at 170-71.
Finally, we would be remiss if we failed to note defendant's querulousness throughout his legal proceedings, and the difficulty he had in following directions from the court and counsel. The record supports a conclusion that controlling defendant on the witness stand would have been extremely difficult, even for his well-seasoned trial attorney, with the prospect being that defendant would have inadvertently opened the door to extremely damaging cross-examination regarding his past offenses. See State v. Vandeweaghe, 177 N.J. 229, 237-38 (2003); State v. James, 144 N.J. 538, 554 ( 1996); see also Brunson, supra, 132 N.J. at 392 (defendant may waive protection of sanitization). For example: defendant had a contentious relationship with his trial counsel and vociferously disagreed with counsel's decision not to call the victim's mother as a witness; notwithstanding his representation by counsel, defendant was unwilling to follow counsel's advice; defendant was disrespectful to the court; he made inappropriate comments to the prosecutor, which required an admonishment by the court; and he had an outburst in front of the jury, during his counsel's examination of a witness, shortly after he had agreed on the record that he would not be testifying and had received an adverse ruling about his desire to call the victim's mother as a witness. Indeed, after defendant's outburst, the court attempted to admonish defendant and defendant interrupted, causing the court to note: "You have some problems controlling. I'm speaking and you cannot even wait until I'm finished. I have some great concerns about your ability to conduct yourself appropriately. You were inappropriate with the prosecutor. This outburst was horrific, inappropriate and cannot be tolerated in this court."
We similarly do not find any merit to defendant's claim counsel was ineffective for failing to advise defendant of his right to testify at the Miranda hearing, and therefore an evidentiary hearing was necessary. He specifically claims if he had been given an opportunity to testify, he would have stated: (1) a detective grabbed him, shook him, cursed at him, and shouted that he was a rapist; (2) he never confessed or provided the statement attributed to him; and (3) he was never given a copy of the charges that had been filed against him.
The PCR court found defendant knew he had the right to testify, Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976, 19 L. Ed. 2d 1247, 1259 (1968), and he had discussed the matter with counsel. Thus, defendant failed to establish the first prong of the test for ineffectiveness.
We agree with the PCR court that defendant failed to establish a prima facie case for this claim. The record clearly demonstrated defendant was aware of his right to testify. On the first day of the four-day Miranda hearing, during cross- examination of a prosecution witness, the court inquired of defense counsel:
THE COURT: Is there a point, [counsel], that your defendant didn't know he was under arrest?
[DEFENSE COUNSEL]: Yes. No. Didn't know that he had been formally charged, Your Honor.
THE COURT: He was - he knew he was under arrest, but not what for. Is that your point?
[DEFENSE COUNSEL]: Yes. That's exactly my point. And there is he will have an opportunity to testify fully to that. But that is my point.
THE COURT: Okay.
At the start of the second day of proceedings, defense counsel again indicated that defendant might testify, stating:
[DEFENSE COUNSEL]: I would also request, your Honor, that maybe on the break at some point, if Mr. Calhoun decides he would like to testify during this, he has personal property upstairs that he would like to retrieve, including legal papers, some of the physical evidence from the last portion of his hearing, that he was not allowed to keep with him.After that day's lunch break, the court advised counsel the legal materials he had requested had been brought to defendant.
Ultimately, defendant called four witnesses in support of his motion, including a psychological expert, with the focus of the presentation being whether defendant was advised of the reason for his arrest, whether he was able to read and write, or had the intellectual capacity to understand and waive his rights. Defendant did not testify.
We conclude, even if counsel did not discuss with defendant his right to testify, there is no reasonable probability defendant's proposed testimony would have altered the result of the hearing. First, on direct appeal, we found no merit to defendant's claim that he had not knowingly and voluntarily waived his right against self-incrimination. State vs. Calhoun, supra, slip op. at 14-15. Second, in the Miranda proceedings, the court found the prosecution witnesses credible regarding their treatment of defendant and the content of defendant's statements. The court rejected defendant's claim of illiteracy and an inability to understand his rights, which was based, in part, on the court's own observations of defendant reading and taking notes in the courtroom.
In sum, we conclude defendant failed to establish a prima facie case of ineffective assistance of counsel. His unsupported allegation offered no support for his claim, other than "bald assertions."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION