Opinion
DOCKET NO. A-0516-13T3
04-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FURN-LEE SALOMON, a/k/a FURN-LEE SOLOMON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Liebowitz, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-01-0121. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Liebowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.
On December 11, 2003, defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). On January 23, 2004, defendant was sentenced on the murder charge to a forty-year term with a thirty-year parole ineligibility period, and to a concurrent five-year term on the weapons conviction.
Defendant filed a direct appeal. In an unpublished opinion we affirmed his convictions and sentence, except to remand for a merger of the weapons offense with the murder conviction. State v. Salomon, No. A-4149-03 (App. Div. April 28, 2006). The Supreme Court denied defendant's petition for certification. State v. Salomon, 188 N.J. 220 (2006).
The facts underlying defendant's convictions are set forth in our opinion and need not be set forth at length here. However, we summarize the evidence pertinent to the issues on appeal, which are derived from our earlier opinion summarizing the evidence at trial, as well as the evidence adduced at the PCR hearing.
On September 4, 1996, Fletcher Brown and his girlfriend were walking toward a park in Elizabeth when they encountered defendant and Vilkings Andre. In the immediate area were a group of juveniles gathered in the middle of the street that had been blocked off by wooden barricades. Defendant asked Brown's girlfriend if she wanted to purchase any drugs. Brown told defendant "[y]ou have nothing to say to my girlfriend," and an argument erupted among defendant, Andre, and Brown. Defendant and Andre then kicked and punched Brown, forcing him into the street.
In our earlier opinion we referred to this individual as Andre Vilkings. However, this individual testified at the PCR hearing, during which he stated his name was Vilkings Andre. --------
Approximately eight of the juveniles nearby joined defendant and Andre and kicked, punched and beat Brown. Brown fell to the ground. The attackers then used pieces of the wooden barricades to beat Brown, who lay on the pavement. These pieces measured ten to twelve feet in length and weighed approximately thirty pounds. Andre also pushed a barricade onto Brown, and defendant picked up a piece of the broken barricade and hit Brown in the arms, shoulders, neck and head. Andre then picked up a bicycle and threw it on Brown; defendant picked up another bicycle and slammed it against the back of Brown's head.
After the beating, which lasted about five minutes, Brown managed to stand up but collapsed and went into convulsions. Defendant and the other assailants fled. Emergency medical services arrived at the scene and found Brown had no pulse or blood pressure. Despite efforts to save his life, Brown died later that day. An autopsy revealed blunt force trauma to Brown's head.
At trial defendant admitted he was present at the scene, but denied assaulting the victim. He claimed he tried to keep Andre from beating the victim but Andre pushed defendant away, telling him to "get the F out of the way." Defendant complied and left the scene.
On September 5, 2006, defendant filed a PCR petition as a self-represented litigant, which he later supplemented with two briefs. Assigned counsel subsequently filed briefs on defendant's behalf. Defendant raised a number of issues before the PCR judge, which granted his request for an evidentiary hearing. In addition to other witnesses, defendant and trial counsel testified at the hearing.
Among other things, defendant sought to show his counsel failed to interview and call various witnesses at trial who defendant contended would have successfully countered the State's witnesses who testified defendant assaulted the victim; did not meet with defendant a sufficient numbers of times before trial; and failed to prepare him for his trial testimony. In an order dated July 23, 2013, in which included his written decision, Judge Stuart Peim denied defendant's request for post-conviction relief. Finding trial counsel "credible and cogent," the judge rejected defendant's argument trial counsel had been ineffective and further concluded that even if counsel had been, there was no proof counsel's alleged errors affected the outcome of the trial.
Specifically, as for counsel's failure to call certain witnesses at trial, two of the witnesses, Vilkings Andre and Stevie Roman, had participated in the attack upon the victim and were prosecuted. Before defendant's trial, each witness had given statements to the police implicating defendant. Although the witnesses had recanted their statements after their own cases resolved, counsel believed a jury would only view the recantations as a ruse to help defendant and, thus, their testimony would not have exculpated defendant.
Counsel testified he was not aware of two other witnesses, Elvita Cetoute and Anderson Alphonse, claiming defendant never mentioned them and they were not identified in discovery. But even if counsel had been aware of Cetoute, defendant acknowledged at the PCR hearing Cetoute's statement to the police varied with his trial testimony. Specifically, Cetoute told the police the victim struck defendant during incident, when at trial defendant maintained he had not done so, suggesting he had no motive to hurt the victim.
Defendant also conceded he was unaware of Alphonse before the trial, a claimed eyewitness to the incident who defendant first met in prison well after his conviction. At the hearing, Alphonse testified defendant was not involved in the attack but was on the porch of house across the street during the entire incident, a version that clashed with defendant's trial testimony. Defendant also did not provide proof trial counsel could have discovered Alphonse after conducting a reasonable investigation.
The PCR judge further found Alphonse's testimony at the hearing to be incredible, noting it strained credulity defendant just happened to find a person in prison who had been an eyewitness to the incident and "eager to provide exculpatory testimony on the defendant's behalf. . . In view of those circumstances as well as the nature of this testimony and his demeanor on the witness stand, I do not find Mr. Alphonse to be a credible witness."
As for the remaining six witnesses defendant claimed counsel failed to interview and call at trial, none testified at the hearing, and there was no competent evidence their testimony at trial would have exonerated defendant. The PCR judge further observed defendant failed to show there was a reasonable probability any of the witnesses defendant claims counsel should have called at trial could have overcome the State's witnesses to the assault, which included a witness who had no stake in the outcome of the trial.
With respect to the argument counsel did not meet with defendant a sufficient number of times before trial or adequately prepare him for his testimony, the PCR judge observed defendant
has not demonstrated how [trial counsel], an experienced criminal attorney, failed to . . . adequately prepare for trial, meet with the defendant, . . . or prepare the defendant to testify. Rather, the defendant's allegations rely on vague statements bereft of evidentiary support in the record.For the reasons set forth in his opinion, the judge also rejected defendant's remaining arguments.
[Emphasis in the original].
On appeal, defendant raises the following arguments for our consideration:
POINT I - DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. THE TRIAL COURT'S DECISION DENYING HIS PETITION FOR POST-CONVICTION RELIEF MUST THEREFORE BE REVERSED.
As a self-represented litigant defendant filed a supplemental brief, raising the following issues:
POINT I - THE PCR COURT'S DENIAL OF PETITIONER-APPELLANT'S ENEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE BOTH UNREASONABLE AND UNSUPPORTED BY THE RECORD DEVELOPED AT THE EVIDENTIARY HEARING.
A. That The Performance Of Trial Counsel By An Objective Standard Of Reasonableness Fell Below A Wide Range Of Competent Assistance.
B. Trial Counsel Did Not Put Forth An Effort To Investigate And Properly Present A Defense.
C. Failure To Request The Passion Provocation Charge.
D. Trial Counsel Was Ineffective For Allowing Irrelevant Other Crimes Evidence Testimony Without Any Objections Or Requesting Curative And/Or Limiting Instructions.
We are not persuaded by any of these arguments and affirm.
POINT II - PETITIONER REQUESTED A LIMITED REMAND TO SUPPLEMENT THE RECORD SURROUNDING THE ISSUE OF KANIKA TAYLOR'S MISIDENTIFICATION OF PETITIONER'S PHOTO DURING THE IN-COURT-IDENTIFICATION.
POINT III - THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S ERRORS AMOUNT TO PETITIONER'S UNCONSTITUTIONAL CONVICTION.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the following two-prong test: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
After carefully reviewing the record, we affirm for substantially the same reasons set forth in Judge Perm's comprehensive, well-written decision. We are persuaded defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test.
To the extent any argument raised by defendant is not explicitly addressed in this opinion, it is because we are satisfied the argument lacks 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