State v. July

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN JULY…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 11, 2013

DOCKET NO. A-0247-11T2 (App. Div. Feb. 11, 2013)

Opinion

DOCKET NO. A-0247-11T2

02-11-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN JULY, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Fisher and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2486.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief. PER CURIAM

Defendant was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of the first-degree murder count charged in the indictment, as well as third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:3 9-4(a). He was sentenced to a twenty-year prison term, subject to an eighty-five percent period of parole ineligibility, on the manslaughter conviction and lesser concurrent prison terms on the weapons convictions.

In disposing of prior appeals in this matter, we summarized the trial in the following way:

The State's theory of the case was that defendant shot and killed Akie Robertson in a dispute over territory for drug dealing. The State presented evidence that defendant and Michael Richardson were engaged in selling narcotics at the intersection of North Fourteenth Street and Sixth Avenue in Newark. Shortly before 2:00 a.m. on August 18, 1998, Akie Robertson and John Bradberry, also known as Kool-Aid, arrived at the intersection with a similar intent. Defendant and Richardson objected to Robertson and Bradberry, who were from Orange, selling drugs from this Newark location. Richardson went to remonstrate with them while defendant went to retrieve a gun. When defendant returned, Richardson was being beaten by Kool-Aid. Defendant pulled out the gun and fired several shots, one of which struck Robertson in the back of the head, killing him. Defendant and Richardson both fled the scene.
Defendant was not apprehended until several years later, when Richardson, who had had a falling out with defendant, implicated him in this shooting. When Richardson testified at defendant's trial, he had thirteen prior convictions and was awaiting trial on a charge of carjacking.
Defendant denied any involvement in this incident. He presented several witnesses who were on the scene who testified defendant was not present. One testified that she saw Richardson pull a gun as well as another individual she identified as Puggs. She said Richardson and Puggs began shooting. Defendant also testified. Although he admitted he had sold drugs from that spot for a brief period of time, he maintained he was not on the scene when Robertson was killed.
[State v. July, No. A-5319-01 (App. Div. Oct. 18, 2004)]

Following his conviction, defendant appealed, arguing, among other things, that the trial judge erred in permitting the jury to hear: evidence of defendant's prior bad acts; prior statements of a witness who recanted; and evidence of defendant's prior convictions. We rejected these arguments and affirmed, ibid., and the Supreme Court denied defendant's petition for certification, 182 N.J. 629 (2005).

Defendant filed a post-conviction relief (PCR) petition in 2005 that was denied without an evidentiary hearing in 2008. He appealed, arguing the PCR judge erred in denying relief because he was denied the effective assistance of counsel, who allegedly: "failed to adequately investigate and cross-examine a key witness about additional pending charges"; "failed to properly investigate facts and witnesses"; and "failed to call certain witnesses." State v. July, No. A-5154-07 (App. Div. July 26, 2010) (slip op. at 2-3). In a second point, defendant argued he was entitled to relief based on the State's "failure to disclose Brady ¹ information." Id. at 3. In a pro se brief, defendant also argued that: his constitutional right to a public trial was denied by the exclusion of his family from part of the trial; his constitutional right to a fair trial was prejudiced by prosecutorial misconduct; and he was wrongfully deprived of an evidentiary hearing on the issues raised in his PCR petition. Id. at 7-8.

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

In that appeal, the argument we chiefly focused on was defendant's contention that "at the time Richardson testified against defendant he had additional pending charges beyond those which defense counsel knew about." Id. at 5. We reversed, finding defendant was entitled to an evidentiary hearing because there was "a material factual dispute as to whether defendant's trial attorney was aware of all of the pending charges that Richardson faced at the time he took the stand." Id. at 7. We explained:

We note that in our earlier opinion, in rejecting defendant's argument, we wrote that "in light of Richardson's admission to the jury that at the age of thirty-four, he had accumulated thirteen prior convictions and, at the time of trial, was in jail
awaiting trial on a charge of carjacking, we cannot consider that the omitted charges, if indeed there were any, [were] material." We consider this language a clear indication that we were considering the quantum of Richardson's convictions; that is, would the jury consider him less credible if it knew that he had more than thirteen convictions, rather than considering the question of whether Richardson, in light of pending charges, had a motive to favor the prosecution in his testimony. We do not think it could be seriously questioned that the greater the number of pending charges Richardson might face, the stronger his motivation might be to testify along the lines that favored the State.
[Id. at 6-7 (citation omitted)]

We, thus, remanded for the development of the record and resolution of this factual dispute. Id. at 7.²

2 In turning to defendant's pro se arguments, we found his first two points to be procedurally barred, and also that it was unnecessary to discuss further the third point, which sought an evidentiary hearing on the PCR petition. Id. at 8.

As mandated, an evidentiary hearing took place on November 19, 2010. Defendant's attorney testified that he was provided at trial with Richardson's criminal case history, which included thirteen prior convictions; the history did not include the new charges asserted against Richardson, who had been arrested five days before the start of defendant's trial, namely: bail jumping, N.J.S.A. 2C:29-7; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; unlawful possession of a weapon, N.J.S.A. 2C:39-5; conspiracy to commit robbery, N.J.S.A. 2C:15-1; and carjacking, N.J.S.A. 2C:15-2.³

3 Ultimately, Richardson pleaded guilty to carjacking and was acquitted of possessing a weapon for an unlawful purpose; the remaining charges were dismissed.

As a result of this testimony, the PCR judge found defendant's trial attorney was familiar with Richardson's criminal history as well as the fact that Richardson had been charged a few days earlier with the first-degree offense of carjacking, for which he was jailed awaiting trial. The PCR judge also found that the fact that counsel was unaware of the other pending charges did not prejudice his ability to fully cross-examine Richardson about his prior convictions or the purported motive in testifying favorably for the prosecution.

These findings are fully supported by the record. At trial, counsel effectively cross-examined Richardson, establishing Richardson was then residing in the Essex County jail, that he had pending charges, including first-degree carjacking, and that he had thirteen prior convictions.⁴

4 In fact, as established at the PCR evidentiary hearing, while counsel for both sides at trial were of the belief -- and stipulated -- that Richardson had thirteen prior convictions, he actually had only nine. As a result, the jury mistakenly heard that Richardson had thirteen prior convictions.
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Trial counsel also established that Richardson was still angry with defendant:

Q. You're still mad at my client, correct?
A. Yes.
Q. You would do whatever is necessary to see he is punished?
A. Yes.

And counsel also suggested to the jury that the State might have been treating Richardson favorably through the following argumentative cross-examination:

Q. You just indicated to the prosecutor that she didn't show you any kind of favoritism?
A. No.
Q. How do you explain the fact that you told her that you lied to two police officers and yet she never arrested you?
A. You have to ask her that.
Q. That's not favoritism, sir?
A. No.

In addition, defendant's trial attorney established through further examination that Richardson had spoken with an investigator of the prosecutor's office about testifying against defendant prior to his arrest a few days before defendant's trial.

At the conclusion of the hearing, Judge Ramona A. Santiago denied relief for the reasons expressed in a thorough and well-reasoned written opinion.

Defendant appeals, arguing through counsel, the following single point:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S [PCR PETITION] FOLLOWING THE EVIDENTIARY HEARING CONDUCTED PURSUANT TO

THE DECISION OF THE APPELLATE DIVISION. In a pro se supplemental brief, defendant also argues:

I. APPELLANT'S JURY WAS DENIED [] FUND[A]MENTAL CREDIBILITY EVIDENCE OF MR. RICHARDSON, A STATE WITNES[S] DUE TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE U.S.CONST. 6th and 14th AMEND[MENT] RIGHTS AS AFFORDED IN N.J. CONST. ART[.] I, PAR[.] 1, 9, AND 10 DUE PROCESS.
II. FAILURE OF TRIAL COUNSEL TO SECURE RICHARDSON'S PRIOR RECORDS AND PENDING CHARGES AFFECTED HIS CROSS-EXAMINATION AND CONFRONTATION [RIGHTS] BEFORE THE JURY THAT IS CONTRARY TO APPELLANT'S U.S. CONST. 6th AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND DEPRIVED [HIM OF] A FAIR TRIAL.
III. THE PROSECUTOR'S MISCONDUCT IN SUPPORTING KNOWINGLY PRESENTED P[E]RJURY BEFORE APPELLANT'S JURY WITH THEIR WITNESS TESTIMONY SET FORTH A PRIMA FACIE SHOWING OF A BRADY VIOLATION THAT HINDERED CONSTITUTIONALLY A FAIR TRIAL CONTRARY TO THE U.S. CONST. 6th AND 14th AMENDMENT RIGHT AS AFFORDED IN N.J. CONST. ART[.] I, PAR[.] 1, 9, AND 10 DUE PROCESS.
IV. APPELLANT'S PCR JUDGE'S RATIONAL[E] TO DENY INEFFECTIVE ASSISTANCE OF COUNSEL NOT INVESTIGATING THE PRIOR EIGHT CHARGES RICHARDSON HAD BEFORE HE GAVE HIS STATEMENT DEPRIVED APPELLANT A JURY TRIAL BECAUSE COUNSEL CONDUCTED NO INVESTIGATION.

We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

Defendant was required by the familiar standard applicable to ineffective-assistance claims to establish: (1) counsel's performance was deficient, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), in that the attorney did not perform "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970), and (2) there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. See also State v. Parker, 212 N.J. 269, 279-80 (2012); State v. Fritz, 105 N.J. 42, 58 (1987).

The PCR judge correctly found that defendant failed to prove either of the Strickland/Fritz prongs. With respect to the second prong, the judge concluded that the "fact that the jury was not aware of the additional pending charges did not affect their ability to consider Richardson's lack of credibility." She added:

Even assuming [satisfaction of the first prong], [defendant] has failed to allege facts to demonstrate that but for [his attorney's alleged] errors the result of the proceedings would have been different. The cumulative effect of the [attorney's] line of questioning, which included emphasizing the State's favoritism of Richardson and the carjacking offense was sufficient enough to lead the jury to the same conclusion it would have reached had they been aware of the accompanying pending charges.

Those findings are entitled to our deference and are amply supported by the record. State v. Robinson, 200 N.J. 1, 15 (2009).

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION