Opinion
DOCKET NO. A-1076-11T2
02-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NATHANIEL HALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Haas.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-02-0170 and 05-02-0249.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Nathaniel Hall appeals from a July 14, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
I.
A.
Defendant was the subject of two separate Middlesex County indictments. In Indictment Number 05-02-0170, defendant was charged with first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a)(1), and N.J.S.A. 2C:11-3(a)(2)(count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)(count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7)(count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a)(count four); and third-degree unlawful possession a handgun, N.J.S.A. 2C:39-5(b)(count five). In Indictment Number 05-02-0249, defendant was charged with second-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7(b).
Tried before a jury, defendant was convicted of third-degree aggravated assault (count three); second-degree possession of a weapon for unlawful purposes (count four); and third-degree unlawful possession of a handgun (count five) under Indictment Number 05-02-0170. He was found not guilty of first-degree-attempted murder (count one) and second-degree aggravated assault (count two). Defendant was also convicted, under Indictment Number 05-02-0249, with second-degree possession of a weapon by a previously convicted person.
Defendant was sentenced by Judge Dennis V. Nieves, who had presided at the trial, to ten years in prison, with a five-year period of parole ineligibility on count four, possession of a weapon for an unlawful purpose. On counts three and five, aggravated assault and unlawful possession of a weapon, respectively, the judge imposed two concurrent five-year terms. With regard to Indictment Number 05-02-024 9, charging defendant with possession of a weapon by a previously convicted person, the judge imposed a consecutive ten-year sentence with a five-year period of parole ineligibility. The judge also accepted defendant's guilty plea to a violation of probation under Indictment Number 04-05-0693, and then sentenced defendant to five years in prison, consecutive to the sentences imposed under the two indictments that were resolved at the trial. The judge imposed the mandatory fines and penalties for each offense.
Defendant filed a direct appeal and raised the following arguments:
POINT I: BY EXPRESSING HIS OPINION THAT THE VICTIM WAS TELLING THE TRUTH, DETECTIVE SMITH DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL.
POINT II: THE COURT FAILED TO PROVIDE THE JURY WITH AN IDENTIFICATION CHARGE WITH RESPECT TO THE VICTIM'S IDENTIFICATION OF DEFENDANT AS THE PERSON WHO SHOT AT HIM, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS. U.S. CONST. AMEND.
XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10.
POINT III: THE COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER THE VICTIM'S FAILURE TO ADVISE THE POLICE THAT HE KNEW THE IDENTITY OF ONE OF THE WITNESSES TO THE SHOOTING AS SUBSTANTIVE EVIDENCE, IN THE CONTEXT OF A PRIOR INCONSISTENT STATEMENT, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10.
POINT IV: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE SMITH'S TESTIMONY THAT HE OBTAINED DEFENDANT'S SOCIAL SECURITY NUMBER FROM THE IN-HOUSE COMPUTER WAS NOT RELEVANT TO ANY MATTER AT ISSUE, SUGGESTED THAT THIS WAS NOT DEFENDANT'S ONLY ARREST, WAS INADMISSIBLE UNDER N.J.R.E. 404(b), AND DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10.
POINT V: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING DETECTIVE SMITH AND OFFICER DELONG TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, §§ 1, 9, 10.
POINT VI: THE CONVICTION MUST BE REVERSED BECAUSE IT STANDS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT VII: DEFENDANT'S SENTENCE MUST BE REDUCED OR REMANDED; THE INDIVIDUAL SENTENCES ARE EXCESSIVE, AND THERE WAS NO STATEMENT OF REASONS TO SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.
We affirmed defendant's convictions and sentence in an unpublished opinion. State v. Hall, No. A-6450-05T4 (June 13, 2008). The Supreme Court denied defendant's petition for certification, "without prejudice to raising ineffective assistance of counsel on post-conviction relief." State v. Hall, 197 N.J. 477 (2009).
B.
We begin by referencing the essential background facts as set forth in our earlier opinion. On December 5, 2004, Lawrence Cody met defendant as Cody was coming home from a movie with his son. Hall, supra, slip op. at 3. While their conversation was "friendly" at first, defendant became upset and threatened to kill Cody. Id. at 3-4. Defendant "sucker punched" Cody and the two men began to fight. Id. at 4. Some neighbors broke up the fight and defendant got into a friend's car. Ibid. When Cody challenged defendant to continue the fight, defendant replied "he 'would be back.'" Ibid.
A short time later, Cody came out of his apartment to smoke a cigarette and saw defendant approaching with two other men. Ibid. As the men came closer, Cody saw defendant had a handgun and he began shooting. Ibid. The first shot missed, but Cody stated "[t]he second shot went through his pants and hit the piece of wood behind him." Id. at 5. Cody began to run away and "a third shot grazed the upper part of his left buttock cheek." Ibid. Defendant then left the scene in a car. Ibid.
The police were summoned and one of the first officers to arrive was Officer Byrom. Ibid. Officer Byrom was not called as a witness by either party. Cody testified he did not bleed from either wound and had applied ice to his buttock before Officer Byrom arrived. Ibid. Detective Frederick DeLong and Detective David Smith spoke to Cody after he "came into headquarters following the shooting." Id. at 6. Detective DeLong testified he did not find any wounds in Cody's buttock area. Id. at 6-7. However, Detective Smith examined Cody's clothing and found bullet holes in his shirt and pants. Id. at 7. The two detectives later went to the scene of the shooting to look for bullets and "Detective Smith found a bullet lodged in the landscaping alongside of the building." Id. at 6.
Larry Dukes appeared for the defense. Id. at 7. Dukes testified he saw three men approaching Cody and heard "gun shots ringing out and he saw Cody run away." Id. at 8. Dukes testified he knew defendant and that defendant was not one of the three men. Ibid. He stated he did not tell the police "what he had seen because of a warrant out for his arrest." Ibid.
C.
On January 8, 2010, defendant filed a petition for PCR, and his attorney filed a supplemental brief on his behalf on July 23, 2010. Defendant asserted his trial counsel, H. Todd Hess, Esq., was ineffective because he had waived defendant's right to be present during sidebar conferences between the attorneys and the judge. Before the trial began, the judge noted that defendant "wants to be present at sidebar for those sidebar conferences" and asked Hess, "[h]ave you discussed that with him?" Hess replied:
No. It's my normal practice to waive my client's appearance at side bar. I ask a Court for a couple of minutes after each side bar so I can explain what happened to determine whether there is any input that he wants to make.The judge then noted it was not clear whether Middlesex County had obtained "head sets for defendants so they can listen in[,]" from counsel table and jury selection began without any further discussion of the issue.
At oral argument on defendant's petition for PCR, Judge Nieves explained that there is not "enough room" in his courtroom for "the defendant to stand at side bar. Whether in this courtroom or the next courtroom, which is even smaller. I have limited space." Therefore, the judge rejected defendant's argument that he should have been permitted to stand at sidebar.
Defendant also argued Hess was ineffective because he had not called Officer Byrom as a witness. The judge scheduled an evidentiary hearing on this issue. In response to PCR counsel's questioning at the hearing, Hess explained his reasons for not using Officer Byrom as a witness:
I did not attempt to interview Officer [Byrom.] Typically the witnesses or potential witnesses that we have that are law enforcement officers are - - are less than forthcoming with us, in terms of candor and in terms of their availability. Trying to chase down a police officer to get their preliminary statement is almost impossible, usually.
. . . .
Had Officer [Byrom] been a critical witness in terms of credibility, I certainly would have chosen to have an investigator at least attempt to go out and speak to him. But it didn't appear that he was a critical witness or that he could impeach the credibility of Lawrence Cody, I believe was the gentleman's name, at that point of time.
Based upon this testimony and after oral argument of counsel, Judge Nieves denied defendant's PCR petition. The judge found Hess "gave a very good reason why he didn't call the officer." The judge explained that Officer Byrom was "an after the fact witness who came upon the scene and so he could not corroborate or contradict those that were present during the particular incident, that's why he didn't call him." The judge noted he "had the benefit of being the [trial judge] in this particular case and I thought Mr. Hess did an outstanding job" because, even though the evidence showed defendant had shot at Cody, he was not found guilty on the most serious charges of attempted murder and second-degree aggravated assault.
II.
On appeal, defendant's appellate counsel has raised the following arguments for our consideration:
POINT ONEOur review of the record convinces us that the judge acted properly in denying defendant's petition for PCR.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT TWO
THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING AS TO THE OTHER ISSUES RAISED IN THE DEFENDANT'S PETITION.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant argues his trial counsel was ineffective because he waived his right to be present at sidebar conferences. He also asserts Judge Nieves should have conducted an evidentiary hearing before addressing this contention. We disagree.
Defense counsel's practice was to employ the "lawyer-shuttle system" to handle sidebar conferences. Under this system, "the lawyer who attends each sidebar thereafter consults with his client regarding what has transpired, thus allowing the client to seek further probing or to acquiesce in the lawyer's recommendation." State v. W.A., 184 N.J. 45, 61 (2005). The "lawyer-shuttle system" has been expressly approved by the Supreme Court. Ibid.
The judge explained that head sets, which would have permitted defendant to listen to the conferences from counsel table did not appear to be available in Middlesex County at the time of trial. In addition, there was not enough room to accommodate defendant at sidebar. Defendant has not identified any problems caused through the use of the shuttle system at trial. Therefore, defendant's "bald assertion" that his counsel was ineffective for using the shuttle system was insufficient to establish a prima facie case of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170-71.
Defendant next argues Judge Nieves erred by denying his request for an evidentiary hearing on the sidebar issue. However, because defendant failed to present a prima facie case of ineffective assistance of counsel on this point, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992). Moreover, the trial transcript already contained Hess's explanation that he preferred to use the shuttle system. Therefore, an evidentiary hearing was not necessary to address this issue.
Defendant argues his PCR counsel was ineffective in his questioning of Hess at the evidentiary hearing. Defendant contends PCR counsel should have asked Hess additional questions about his decision not to call Officer Byrom as a witness, especially since he argued at trial that the State should have called the officer during its case. These arguments lack merit.
Regarding a claim that PCR counsel was ineffective, the Supreme Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.
[State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)). "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Hicks, supra, 411 N.J. Super. at 376.
A reviewing court must grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23.
That is not the case here. As Hess fully explained in response to PCR counsel's questions, Officer Byrom was not a critical witness because he could not assist the defense in impeaching Cody's credibility. Thus, Hess made the strategic decision not to seek to call the officer to testify for defendant.
Defendant complains his PCR counsel did not ask Hess about an exchange that occurred between counsel at trial concerning Officer Byrom. Before opening statements, Hess advised the judge that, although Officer Byrom was on the State's witness list, the State was not planning on calling the officer as a witness. The prosecutor explained that Officer Byrom had been discharged by the New Brunswick Police Department for "misconduct in office" and was unavailable as a witness.
Hess expressed concern that, in the officer's absence, he would not be able to cross-examine him about any statements Cody may have made to Officer Byrom that were inconsistent with statements he later made to the detectives. Hess argued that, if Officer Byrom were not called, he should be "allowed to comment on the State's failure to produce this guy or to explain why he is not here."
In response, the State made arrangements to call Officer Sergio Matias as a witness. Officer Matias was Officer Byrom's partner and was present when Cody spoke to Officer Byrom. This was satisfactory to the defense and the parties moved on to discuss other pre-trial issues.
The resolution of this issue was therefore clear from the trial record and needed no further explication at the PCR hearing. Because Officer Matias was made available, there was no need for either side to call Officer Byrom. Hess fully explained his strategic decision not to call Officer Byrom and PCR counsel was not ineffective because he did not question Hess about this specific pre-trial colloquy.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION