Opinion
DOCKET NO. A-1383-12T4
03-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELIJAH PITTMAN, a/k/a EMMIT GREEN IBN PITTMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1156. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Elijah Pittman appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In December 2006, defendant was indicted by a grand jury on two second-degree counts, eluding the police during a car pursuit, N.J.S.A. 2C:29-2(b), and aggravated assault with the car while eluding, N.J.S.A. 2C:12-1(b)(6). He was tried before a jury in September 2007 and found guilty of both charges. The court sentenced him to six years imprisonment with two years of parole ineligibility on the eluding conviction and eight years imprisonment, subject to the eighty-five percent parole ineligibility period of the No Early Release Act, N.J.S.A. 2C:43-7.2, for the aggravated assault conviction, the two terms to be served consecutively.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Pittman, No. A-4846-08 (App. Div. May 26, 2010). In our unpublished decision, we summarized the evidence:
According to the State's proofs, at around 7:30 p.m. on August 22, 2006, while still daylight with clear weather, Union Township Police Officer Michael Wittevrongel was monitoring eastbound Route 22 traffic in a marked patrol car parked about ten feet away in a lot perpendicular to the roadway. The officer noticed a Chrysler Fifth Avenue approaching in the left lane with no front license plate, but a New Jersey license plate on the back. Wittevrongel focused solely on this car as it passed by at about
forty to forty-five miles per hour, paying particular attention because its driver's side door lock was damaged, indicating that it could have been stolen. At the same time, Wittevrongel observed a male driver and a female passenger.
Wittevrongel ran the number on the rear license plate and found that it was not registered to that vehicle or any other. As a result, he radioed two other officers in the area, David Roman and Walter Stinner, for assistance. Wittevrongel then pulled out onto Route 22 in pursuit, losing sight of the Chrysler for no more than thirty seconds. He eventually caught up to the Chrysler near the Lowes Shopping Center on Route 22, where he saw his fellow officers pull out from the Lowes' parking lot, in their police cruiser, activate their lights and sirens, and signal for defendant to stop. Wittevrongel did the same, taking over as the primary unit in pursuit, only losing sight of the vehicle for an instant just before it ultimately crashed a few minutes later. While in pursuit, Officer Stinner also observed that the driver was male and the passenger, female.
With the police vehicles following, the Chrysler accelerated to about seventy miles per hour in the forty-five mile per hour speed zone, "weaving in and out of traffic," driving erratically, and suddenly "pull[ing] from the left lane, clear across the right lane of traffic, and right off the [exit] ramp." By then, the officers had been pursuing the vehicle for approximately 3.3 miles. When Wittevrongel reached the top of the exit ramp, he saw that the Chrysler — which he lost sight of for only "a fraction of a second" when it shot down the ramp — had rear-ended another vehicle, a Saturn, at a stop sign at the bottom of the ramp. The impact forced the Saturn all the way across
the street and into a parking lot where it collided with a tractor trailer.
The Chrysler had sustained heavy front-end damage and was still smoking and rolling the wrong way down a one-way street as the passenger remained inside while the driver attempted to exit, despite the fact that his door would not open. Wittevrongel, after quickly checking that the driver of the Saturn was all right, used his police cruiser to block the Chrysler from moving any further. Inside that vehicle was defendant, in the driver's seat, along with a passenger, defendant's cousin Nicole Pittman. Defendant, who was the same person Wittevrongel saw in the driver's seat when he first observed the vehicle on Route 22, was then placed under arrest. . . . [T]he driver of the Saturn vehicle, sustained injuries to her neck, back, and shoulders that left her, more than a year later, with continuing pain and still unable to drive.
[Id. at 2-4 (footnote omitted).]
Following our affirmance, the Supreme Court denied defendant's petition for certification. State v. Pittman, 204 N.J. 39 (2010). Defendant then filed a pro se PCR petition in November 2010 alleging ineffective assistance of counsel. Counsel was appointed to represent defendant and filed a motion to recuse the judge who had presided over defendant's trial and also to obtain discovery from the State. The judge denied both motions and later heard argument and denied the PCR petition without holding an evidentiary hearing.
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 Was Entitled to an Evidentiary Hearing Since He Presented a Prima Facie Case of Ineffective Assistance of Trial Counsel Arising out of Counsel's Failure to Thoroughly Investigate the Alleged Eluding and Aggravated Assault as Well as by Failing to Discredit the State's Case at Trial.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING POST CONVICTION RELIEF COUNSEL'S MOTION FOR DISCOVERY WHICH WAS ESSENTIAL TO A PROPER PRESENTATION OF THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
In considering a petition for post-conviction relief, the court begins with a presumption that a defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.To satisfy the second part of the Strickland test, "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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Defendant argues his trial attorney was ineffective because he failed to investigate the circumstances of the police chase to support his defenses that his cousin, Nicole Pittman, was the driver of the Chrysler and that the police were actually the cause of the collision with the Saturn on the exit ramp.
We will assume for purposes of the appeal that trial counsel should have pursued discovery of police transmissions during the incident to verify whether any of the officers reported to their headquarters that a man was the driver of the fleeing vehicle. The absence of such a transmission would not have changed the presentations at trial significantly. Officer Wittevrongel's police report did not indicate the gender of the driver that he observed on Route 22, and defense counsel cross-examined him on that omission. The officer testified that he did not include a description because there was no issue in his mind of who the driver was. Furthermore, Officer Stinner testified that he, too, saw a male driver in the Chrysler as it sped away on Route 22. The incident developed quickly into a police chase, and the description of the vehicle rather than the fact that a man was driving would have been the important information to convey to other officers and headquarters.
Only if the police transmissions were to include a statement by one of the officers that a woman was driving the fleeing vehicle would it have helped the defense's contention that Nicole Pittman rather than defendant was the driver. However, the police released Nicole Pittman on the scene shortly after the crash. There is no credible likelihood that she would have been released if an officer had seen a woman driving the Chrysler during the chase and made such a transmission to police headquarters.
Defendant alleges that the police car driven by Officer Stinner had rammed the Chrysler earlier on the shoulder of Route 22 and thus caused the Chrysler to flee and eventually collide with the Saturn. We will assume that defendant's trial attorney should have attempted to obtain discovery of any repair records of the police vehicle. Even if defendant's version is true that Stinner's vehicle rammed the Chrysler, it would not justify defendant's fleeing on Route 22 at high speed for two or three miles, then suddenly crossing from the left lane to the exit ramp on the right, and ramming the car of an innocent citizen at the bottom of the ramp.
The investigation that defendant contends his attorney should have done might theoretically have produced additional impeachment evidence to challenge the accuracy and completeness of the officers' trial testimony, but it would not have created a defense against the allegations of dangerous eluding and the aggravated assault of an innocent driver in the course of the eluding.
The trial judge issued a written decision by which he addressed and rejected point by point each of defendant's allegations on the PCR petition. We agree that defendant's allegations were not sufficient to call into question the essential evidence in the prosecution's case or the strength of that evidence with respect to defendant's criminal conduct during the incident.
Furthermore, with the testimony of two officers that they saw a male driver, followed by defendant being found immediately after the crash in the driver's seat, this was not a case where identification was an issue. There was no basis in the evidence to instruct the jury about the trustworthiness of cross-racial identification of strangers, as discussed in State v. Cromedy, 158 N.J. 112, 128-31 (1999).
The PCR petition did not proffer any evidence that Nicole Pittman was the actual driver of the vehicle rather than defendant. It did not present a prima facie showing of the viability of that defense such that an evidentiary hearing was required to explore why the trial attorney did not pursue it more vigorously. See State v. Preciose, 129 N.J. 451, 462 (1992) (an evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined); see also State v. Marshall, 148 N.J. 89, 158 ("If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.") (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We find no abuse of discretion in the trial court's denial of an evidentiary hearing to examine further the allegations of the PCR petition.
Finally, citing State v . Webster, 187 N . J . 254 (2006), and Rule 3:22-6(d), defendant argues in a supplemental pro se brief that his PCR attorney failed to argue all the points that he requested be argued before the trial court. Specifically, he contends that the verdict sheet and the jury instructions at his trial were erroneous on the eluding charge and that his claim that the police pursuit was motivated by racial profiling should also have been investigated and presented as a defense of the indictment.
Rule 3:22-6(d) provides in relevant part:
Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.
The rule adopts the Supreme Court's explanation of the duties of PCR counsel as first set forth in State v . Rue, 175 N . J . 1, 18-19 (2002), and then expanded upon in Webster, supra, 187 N . J. at 257:
Reduced to its essence, Rue provides that 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.
We have reviewed PCR counsel's several submissions in the trial court, including correspondence with the court amending the petition to add claims raised personally by defendant. Counsel was aware of his obligation under Rue, Webster, and Rule 3:22-6(d) and seems to have attempted to present all of defendant's allegations. Although we have not found an argument with respect to the verdict sheet and the related jury instructions, we have now considered defendant's pro se argument in that regard and find insufficient merit in it to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We add that the propriety of the jury instruction on the eluding charge was raised and rejected on defendant's direct appeal. See Pittman, supra, slip op. at 5, 10-11. Pursuant to Rule 3:22-4 and -5, issues that could have been raised and adjudicated in a prior proceeding or were in fact adjudicated in a prior proceeding may not be raised again in a PCR petition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION