Opinion
DOCKET NO. A-4837-13T4
07-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL GORE, JR., a/k/a MICHAEL ROY GORE, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-09-1181. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Michael Gore, Jr., appeals a February 7, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
The facts of this case were previously set forth in our decision on defendant's direct appeal, State v. Gore, No. A-1924-06 (App. Div. Oct. 26, 2009) (Gore I), certifications granted and denied, 201 N.J. 440 (2010); in the Supreme Court's decision reversing and remanding for further consideration, State v. Gore, 205 N.J. 363 (2011) (Gore II); and in our decision on remand, State v. Gore, No. A-1924-06 (App. Div. Mar. 9, 2012) (Gore III). We restate certain facts and the procedural history relevant to this appeal.
On August 7, 2000, while en route to a friend's house, defendant passed by the home of Victoria Colton. Colton was a close family friend whom he regarded as a grandmother. Seeing her dog in the yard, he stopped to play with it and then noticed that Colton's back door was open. Defendant entered the house and found her purse unattended on a chair. As he removed some money from the purse, she emerged from an upstairs room, discovered the theft in progress, and threatened to call the police. Defendant went upstairs and attacked her, grabbing her by the neck and garroting her with a telephone cord from her bedroom. When Colton showed some continuing signs of life, he got a knife from the kitchen, returned to the bedroom, and cut her throat. That evening and the following morning, Colton's [bank] card was used three times to withdraw cash from ATM machines.
[Gore II, supra, 205 N.J. at 368-69.]
Lisa Pointon, defendant's sister, spoke to Colton over the telephone twice on August 7, 2000, once in the morning and again in the early afternoon between 12:00 and 12:30 p.m. On August 8, 2000, Pointon attempted to reach Colton by telephone several times and at 9:00 p.m. became concerned because Colton, who was eighty-five years old, had not responded.
Pointon contacted her and defendant's mother, Christine Gore, and determined that Christine Gore also had not spoken to Colton on August 8, 2000. Pointon and Christine Gore separately went to Colton's home, where they discovered her dead on the floor of her bedroom, covered in blood.
Pointon and Christine Gore subsequently provided formal statements to the police. In Christine Gore's statement, which was provided at 1:40 a.m. on August 9, 2000, she said that the last time she spoke to Colton was at 7:30 p.m. on August 7, 2000. Christine Gore was unavailable to testify at defendant's 2005 trial because she died in February 2004.
Investigating officers recovered surveillance recordings of defendant using Colton's bank card to make three withdrawals at two banks. Gore III, supra, slip op. at 3. Defendant made the first withdrawal at 8:42 p.m. on August 7, 2000, and additional withdrawals at 1:04 and 1:06 a.m. on August 8, 2000, at a different bank.
On August 10, 2000, defendant turned himself in to the police. Defendant first gave an informal confession to the police in which he described his murder of Colton and theft of her bank card. Gore II, supra, 205 N.J. at 368. A police officer began to transcribe defendant's statements on a word processor, but was interrupted by a lawyer retained by defendant's family. Id. at 370. The formal statement was never completed and defendant never signed the statement. Ibid.
Defendant was charged under Mercer County Indictment No. 01-09-1181 with murder, N.J.S.A. 2C:11-3 (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).
During the trial, the State presented testimony from two of defendant's friends. Wallace Riehl testified that on August 7, 2000, defendant knocked on the door of his home in Trenton and requested to use his phone. Riehl said that defendant's clothes and boots were splattered with blood and defendant explained that he had used a knife to ward off a group of individuals who attacked him. Riehl was unsure of the time that defendant appeared at his house, stating that he believed it was in the afternoon and that it was still daylight, but he did not remember the time. Riehl testified that defendant used his phone to call a friend, Kumba, who arrived a short time later and picked up defendant in a car.
Robert Pressley testified that he was at Riehl's house on August 7, 2000, when defendant arrived with blood splattered on his clothes and boots and his pants soaked in blood. Pressley gave conflicting testimony and statements regarding the time defendant appeared at Riehl's home. On August 15, 2000, he told the police that defendant arrived at sometime between 3:00 and 5:00 p.m. At trial, he initially testified that defendant arrived at "around noon" to 3:00 p.m, but acknowledged that he could not "recall it exactly." He later testified that he did not have a watch, was not keeping track of the time, and just assumed defendant's arrival time.
Rafaat Ahmad, the medical examiner for Mercer County, testified that she did not know the exact time of Colton's death, but estimated that Colton died at around 4:00-4:30 p.m. on August 7, 2000. Ahmad did not include a time of death on Colton's death certificate because she stated that the time of death was "open for discussion." She estimated that Colton died more than twenty-four hours prior to the first examination of her body at the murder scene at 11:20 p.m. on August 8, 2000, and could have been dead for around thirty hours prior to that time, but was not dead more than forty-eight hours. Ahmad based her estimate on rigor mortis, livor mortis, Colton's body temperature, the room temperature, the condition of enzyme markers, and the overall condition of Colton's body.
Defendant testified that between 11:00 a.m. and noon on August 7, 2000, a friend drove him to a drug store in West Trenton and dropped him off. He then walked to his friend Jamay's home, which was located three or four houses away from Colton's home, to buy crack cocaine. He bought five grams of crack cocaine from Jamay, and left Jamay's home to buy marijuana at another location.
According to defendant, he was confronted by a group of men on the street, was worried that the crack cocaine and his money would be stolen, and fled to Riehl's home, which was one-and-a-half blocks away. He entered Riehl's home, saw Riehl and Pressley, and called Kumba to pick him up. Defendant testified that Kumba picked him up at Riehl's house no later than 2:30 p.m. and drove him back to Kumba's house in Hamilton where he stayed until 7:00 to 7:30 p.m.
Defendant testified that, while in Hamilton, he obtained Colton's bank card from an individual on the street in exchange for the crack cocaine that defendant was selling. Defendant admitted that he used Colton's bank card to make the withdrawals. Although he acknowledged that he had known Colton from the time he was very young and loved her, he did not recognize Colton's name on the bank card because he only knew her by her nickname, Mimi.
Defendant denied having confessed to the police concerning Colton's murder. He claimed the unsigned statement presented by the prosecution was fraudulent.
Defendant was found guilty of all of the charges. On October 3, 2005, the court merged the felony murder conviction with the murder conviction and imposed a life sentence with the requirement that defendant serve thirty years without eligibility for parole. The court sentenced defendant to a consecutive eighteen-year custodial term with nine years of parole ineligibility for the robbery conviction, and a five-year custodial term for the weapon conviction to run concurrently with the sentence for robbery.
Defendant appealed his conviction and sentences. We reversed his conviction and remanded for a new trial, finding that the trial court erred by admitting defendant's unsigned confession statement into evidence. Gore I, supra, slip op. at 14.
Defendant filed a pro se petition for PCR on July 7, 2010, and requested the assignment of counsel. The court returned the petition and advised defendant it would not proceed because he "failed to set forth with specificity the facts upon which the claim is based, the legal grounds of the complaint and the relief sought." There is nothing in the record indicating that defendant was assigned counsel at that time.
Defendant's original petition correctly noted that his direct appeal was pending before our Supreme Court. His petition was therefore barred under Rule 3:22-3.
After granting the State's petition for certification, the Supreme Court reversed our decision in Gore I, concluding that "[t]here is no likelihood that the error raised on appeal produced an unjust result," and reinstated defendant's conviction. Gore II, supra, 205 N.J. at 367-68. The Court noted:
[I]n light of the mass of evidence supporting his guilt, we are confident that no injustice occurred in defendant's trial. The testimony and exhibits produced by the State confirmed defendant's statement to the police. Various friends of defendant testified concerning his appearance, demeanor and actions shortly after the murder and in close proximity to its location. . . . Riehl and . . . Pressley testified that defendant arrived at Riehl's house, only blocks away from the murder scene, acting nervously at the sound of emergency vehicles passing on the street outside. Blood was observed on defendant's clothing and boots and a knife was on his person. Friends and family identified defendant in court and in the bank surveillance tapes. Witnesses identified the shirt he was seen wearing when withdrawing money using Colton's [bank] card, and
officers subsequently retrieved that shirt from defendant's parents' home. Sterlyn Ransom, who grew up with defendant, testified to driving him to one of the ATM's on the evening of the murder. Another friend of fourteen years, Shawnita Holloway, testified that defendant called her, crying, right after the approximate time of the murder, and then met her about an hour-and-a-half later, while he was still upset and had red eyes. Holloway further testified that the next morning defendant told her that he was going to turn himself in. And, the State produced evidence that negated the presence of any different individual's fingerprints, biological fluids, or DNA. On the other hand, defendant's story about how he came to obtain Colton's [bank] card was uncorroborated and collapsed on itself when scrutinized.The Court remanded the matter for our consideration of defendant's arguments regarding merger and sentencing. Id. at 384-85.
[Id. at 383-84.]
On remand, we determined that the trial court did not abuse its discretion by imposing a life sentence for murder and a consecutive eighteen-year sentence for robbery. Gore III, supra, slip op. at 5-8. We reversed defendant's sentence on the weapon conviction, concluding that it should have been merged with the murder conviction. Id. at 5. The trial court subsequently entered a corrected judgment of conviction.
Following the Supreme Court's decision in Gore II, defendant again filed a petition for PCR on May 23, 2011, claiming that his trial counsel was ineffective. Defendant was assigned counsel, who filed briefs and argued that the petition was not time barred, and that trial counsel was ineffective by failing to: highlight inconsistencies in the State's case; introduce Christine Gore's statement into evidence; and cross-examine the medical examiner, Ahmad, regarding her failure to consider Christine Gore's statement when determining the time of Colton's death. Defendant also claimed that trial counsel's performance was objectively unreasonable because he was not prepared for the trial. Defendant submitted a pro se supplemental brief in which he set forth eight arguments in support of his petition for PCR.
The court heard oral argument and, in a written decision addressing defendant's numerous claims, denied defendant's PCR petition without an evidentiary hearing. The court entered an order on February 7, 2014, denying defendant's petition. This appeal followed.
On appeal, defendant argues:
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 COUNSEL'S FAILURE TO UTILIZE AND SEEK TO INTRODUCE THE STATEMENT OF CHRISTINE GORE DURING TRIAL TO SEVERELY UNDERMINE THE CREDIBILITY OF TWO WITNESSES WHO REPRESENTED IMPORTANT COMPONENTS OF THE STATE'S CASE.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO IMPEACH THE FINDINGS OF THE MEDICAL EXAMINER REGARDING THE TIME OF THE VICTIM'S DEATH.
In a pro se supplemental brief, defendant argues:
POINT I:
TRIAL COURT ERRED DENYING DEFENDANTS P.C.R. WITHOUT AN EVIDENTIARY HEARING FINDING THAT A DECEASED WITNESS STATEMENT WAS INADMISSIBLE; THAT IT LACKED PARTICULAR GUARANTEES OF TRUST-WORTHINESS BECAUSE IT WAS NOT AGAINST HER INTEREST, WAS NOT MADE UNDER OATH, AND WAS NOT SUBJECT TO CROSS EXAMINATION.
POINT II:
P.C.R. COUNSEL FAILED TO COMPLY WITH RULE 3:22-6(D) AS INTERPRETED BY STATE V. RUE AND WEBSTER ENTITLING DEFENDANT TO A NEW P.C.R. HEARING.
II.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A PCR court should grant an evidentiary hearing if a defendant establishes a prima facie claim in support of PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the" Strickland standard. Id. at 463.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.
Defendant argued before the PCR court that trial counsel's performance was deficient under the first prong of the Strickland standard because he failed to introduce Christine Gore's statement into evidence and use it to impeach the medical examiner's testimony concerning the time of Colton's death. The court rejected the argument, finding that Christine Gore's statement was inadmissible under N.J.R.E. 804(b)(6) because the rule permits the introduction of trustworthy statements of deceased declarants only in civil cases. The court also found that Christine Gore's statement was inadmissible under the principle of fundamental fairness recognized by our Supreme Court in State v. Bunyan, 154 N.J. 261, 270-71 (1998), because the statement lacked a "particular guarantee of trustworthiness." The court concluded that trial counsel was not deficient by failing to introduce or use a statement that was inadmissible as a matter of law.
Defendant argues that the court's conclusion is erroneous because it was based upon an incorrect determination that Christine Gore's statement was inadmissible under Bunyan. Our Supreme Court does not recognize "a general hearsay exception for statements not covered by a specific hearsay rule," State v. Brown, 170 N.J. 138, 152 (2001), and has rejected a residual hearsay exception analogous to Federal Rule of Evidence 807, which permits admission of hearsay statements that are not within the other enumerated hearsay exceptions, provided they have other "equivalent circumstantial guarantees of trustworthiness" and satisfy other conditions. Fed. R. Evid. 807. In Bunyan, however, the Court held that hearsay statements may be admissible in a criminal trial if a strict application of the hearsay rules would affect a "defendant's constitutional right to present exculpatory evidence" and result in a "fundamental lack of fairness." Bunyan, supra, 154 N.J. at 268-69.
Defendant implicitly argues that Christine Gore's statement must have been admissible for it to have been utilized during the cross-examination of Ahmad. While "[i]t is improper to cross-examine a witness about inadmissible hearsay documents upon which the expert has not relied in forming his opinion," an expert may be cross-examined as to why he or she disregarded or failed to consider a potentially relevant statement. James v. Ruiz, 440 N.J. Super. 45, 76 (App. Div. 2015) (alteration in original) (quoting Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 130 (App. Div. 1998)) ("[W]e recognize that an expert's refusal to rely on or consider such identified material may, in and of itself, be some evidence of the expert's alleged bias or lack of thoroughness."). Thus, defendant may have been permitted to use Christine Gore's statement to cross-examine Ahmad even if the statement was not otherwise admissible under Bunyan. --------
Based upon our review of the record, we find it unnecessary to determine if the PCR court correctly concluded that Christine Gore's statement was inadmissible and therefore whether defendant's counsel's performance was deficient by failing to introduce the statement or use it during his cross-examination of the medical examiner. "Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). We employ that analysis here.
Defendant claims that he was prejudiced by his counsel's purported errors. He asserts that had his counsel introduced Christine Gore's statement into evidence and used it to cross-examine the medical examiner, the testimony of Riehl and Pressley would have been impeached and Ahmad's estimate of the time of Colton's death would have been undermined. We disagree.
We are convinced that defendant failed to demonstrate that but for his counsel's purported errors, there is a reasonable probability that the result of the trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant suggests that Riehl's and Pressley's testimony regarding the time of defendant's arrival at Riehl's home was stated with mathematical precision. Their testimony, however, was vague and inconsistent concerning the timing of defendant's arrival.
Similarly, defendant implies that Ahmad testified with certainty that Colton died sometime between 4:00 and 4:30 p.m. on August 7, 2000. In fact, however, Ahmad testified that she did not include a time of death on the death certificate because it was "open for discussion." Ahmad stated that Colton may have died between twenty-four and about thirty hours, but not more than forty-eight hours, prior to August 8, 2000, at 11:20 p.m.
Contrary to defendant's arguments, we are not convinced that Christine Gore's statement would have undermined any other witnesses' testimony sufficiently to create a reasonable probability of a different outcome at the trial. Given what our Supreme Court recognized was the "mass of evidence supporting [defendant's] guilt," Gore II, supra, 205 N.J. at 383, we are not persuaded that defendant met his burden of demonstrating that the failure to introduce or use Christine Gore's statement was of such "magnitude that could have 'led the jury to a result it otherwise might not have reached.'" State v. Clowney, 299 N.J. Super. 1, 21 (App. Div. 1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52. Defendant's failure to establish that he was prejudiced under the second prong of the Strickland standard required the denial of his petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
We also reject defendant's argument that the PCR court erred by failing to conduct an evidentiary hearing. An evidentiary hearing on a PCR petition should be granted when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is not adequate for resolving the claim, and the court determines that an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Defendant failed to present a prima facie case for PCR, and the existing record was sufficient to resolve the claim presented. An evidentiary hearing therefore was not required.
We have also considered defendant's argument, made in his pro se supplemental brief, that his PCR counsel was ineffective. We decline to address this argument because it was not raised in or addressed by the PCR court. Rule 3:22-4(b) provides that a second or subsequent PCR petition shall be dismissed unless
(1) it is timely under [Rule] 3:22-12(a)(2); and
(2) it alleges on its face . . .
. . . .
(C) . . . a prima facie case of ineffective assistance of counsel that represented defendant on the first or subsequent application for post-conviction relief.
Thus, if a defendant seeks to raise a claim of ineffective assistance of PCR counsel, that claim should be raised in a timely "second or subsequent" petition for PCR. In addition, this court generally will not consider issues raised for the first time on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and the record before this court does not provide a sufficient basis for a determination of defendant's claim.
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