Opinion
DOCKET NO. A-2110-14T2
10-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUAN SHAHEED, a/k/a RAKIM DOWNEY and SHAHEED ALMUNIR, 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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-04-1155. 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). PER CURIAM
Defendant, Duan Shaheed, appeals from an October 28, 2014 order denying without an evidentiary hearing his petition for post-conviction relief (PCR). He presents these arguments:
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 DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT A WITNESS WHO WOULD HAVE PROVIDED EXCULPATORY TESTIMONY ON THE DEFENDANT'S BEHALF.Having considered the record and determined defendant established a prima facie case of ineffective assistance of trial counsel, we vacate the order denying defendant's petition without a hearing and remand for an evidentiary hearing.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY.
A. FACTUAL BACKGROUND.
B. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS WELL AS HIS RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY AS A RESULT OF THE TRIAL COURT'S REFUSAL TO DISMISS JUROR NO. 12 FROM THE JURY OR, IN THE ALTERNATIVE BY FAILING TO SUA SPONTE DECLARE A MISTRIAL.
POINT III: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
In our opinion affirming defendant's convictions on direct appeal, we comprehensively recounted the facts underlying his convictions. State v. Shaheed, No. A-2654-02T4 (App. Div. May 5, 2006) (slip op. at 5-10). We need not repeat them in the same detail here, but recount only the facts necessary to provide context for defendant's PCR claims.
Defendant was tried together with co-defendant James Lamont Tutt, whom we refer to as "the co-defendant" in this opinion. A third co-defendant, Kyle Herrill, was indicted on two counts of the sixteen count indictment also charging defendant and Tutt. The trial court severed Herrill's case, and on February 27, 2002, Herrill pled guilty on both counts. Shaheed, supra, No. A-2654-02T4 (slip op. at 2 n.2). --------
At approximately 8:45 p.m. on December 19, 1998, two perpetrators hijacked a car in East Orange and robbed its two occupants at gunpoint. Id. (slip op. at 5). At approximately 9:30 p.m., in Irvington, an individual exited the hijacked vehicle, stole a jacket from one of two juveniles walking on the sidewalk, and demanded money from both. They had none, so the individual returned to the hijacked vehicle and drove off. Id. (slip op. at 5-6). At about 10:30 p.m., two men were walking down a Newark street when a car resembling the hijacked vehicle, with two people in the front and two or three people in the back, pulled to the curb. The right front passenger door opened, someone said "Yo, holdup," and the front passenger started shooting. One of the pedestrians died from a "a gunshot wound of neck and head." Id. (slip op. at 6-7).
Two days after the shooting, the first carjack victim described the two assailants. Ten days later, during another interview with the police, he identified a photograph of a co- defendant as the man who robbed the second carjack victim. A month later, on February 5, 1999, the first carjack victim again met with police, and for the first time, advised that the man who robbed him was wearing a baseball hat. The ensuing events led to the identification of defendant as one of the perpetrators.
[A prosecutor's investigator] showed [the first carjack victim] photograph array "H," which he had [compiled] in January 1999. The array contained one photograph of defendant in picture slot No. 5, together with five photographs of other black males. [The first carjack victim] advised [the detective]: "It[,] [the assailant,] looks like No. 5, but the picture is too light. The features are the same, but the skin is darker."
[The investigator] then showed [the first carjack victim] photograph array "E," which [the investigator] had compiled at the same time that he compiled array "H." Array "E" also had a photograph of defendant in picture slot No. 5, along with five other photographs of black males. [The first carjack victim] advised [the investigator] that picture No. 5 looked like his assailant, but that his assailant had worn a hat. [The investigator] cut a hat from a piece of paper, and placed in on the photographs that [the first carjack victim] chose from each of the two arrays. [The first carjack victim] then confirmed his identification of defendant's photograph in each of the two arrays.
On February 8, 1999, [the second carjack victim] identified a photograph of defendant as the man who carjacked him and robbed [the first carjack victim]. [The second carjack
victim] never made an out-of-court identification of [the co-defendant]. Contrary to the photo identifications, at trial [the carjack victims] testified that they could not identify either [defendant] or [the co-defendant] as the robbers. [The second carjack victim] stated that he knew [the co-defendant] from school, and would have recognized him.
On January 15, 1999, [one of the juveniles] made an out-of-court photograph identification of defendant as the individual who robbed him and [his friend]. [The juvenile] testified accordingly at trial, and identified a picture of [the carjacked] car as the car defendant was in that night.
On February 1, 1999, [the surviving pedestrian victim] met with [the investigator], and made a photograph identification of defendant as the individual who fired the shots, and of [the co-defendant] as one of the men in the back of the . . . automobile. [The surviving pedestrian victim] stated that he observed the shooter, who exited from the front passenger seat, when he was completely out of the car. . . . [The investigator] showed [the surviving pedestrian victim] photograph array "H," and [the surviving pedestrian victim] identified defendant as the shooter. [The investigator] showed [the surviving pedestrian victim] photograph array "D," which contained a picture of [the co-defendant], and [the surviving pedestrian victim] identified [the co-defendant] as a passenger in the vehicle. At trial, [the surviving pedestrian victim] again identified defendant as the shooter, and [the co-defendant] as one of the other men in the car. He also identified a photograph of [the carjacked vehicle] as the car that defendant and [the co-defendant] were in the night of the murder.
[Id. (slip op. at 8-10).]
On those facts, a jury returned a partial verdict against defendant, finding him guilty of robbery of the juveniles, as well as two weapons offenses. The State re-tried defendant on the counts on which the first jury was unable to reach a verdict, and the second jury found defendant guilty of first-degree carjacking, two counts of first-degree robbery of the carjacking victims, three counts of second-degree aggravated assault of the carjacking victims and the surviving pedestrian, and first-degree aggravated manslaughter. The court sentenced defendant to serve an aggregate forty-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's convictions but remanded the case "for consideration whether the judge would impose a lesser sentence in the absence of the presumptive terms on [eight counts]," Shaheed, supra, No. A-2654-02 (slip op. at 35), and for the trial judge to "state his reasons for imposing a consecutive sentence in accordance with Yarbough." Id. (slip op. at 38). The Supreme Court denied certification. State v. Shaheed, 188 N.J. 354 (2006).
On remand, the trial court merged three counts but imposed the same aggregate custodial term. Defendant appealed. We heard the appeal on an excessive sentence oral argument (ESOA) calendar and remanded for resentencing. On remand, the judge provided a detailed explanation of reasons for imposing the same aggregate custodial sentence that had been imposed when defendant was first sentenced. We affirmed the sentence on an ESOA calendar but remanded the matter for correction of the judgment of conviction to reflect appropriate jail credits. The Supreme Court denied certification. State v. Shaheed, 213 N.J. 538 (2013).
In March 2007, defendant filed a PCR petition alleging "Ineffective assistance of Counsel, Illegal Sentence, Trial judge abused his discretion, My sixth amendment right was violated." In September 2013, four months after the Supreme Court denied certification with respect to defendant's appeal of his sentence, defendant filed a second PCR petition, asserting the same allegations. Counsel was appointed and filed a brief in which he alleged trial counsel was ineffective for coercing defendant not to testify and for failing to conduct any pre-trial investigation, as a result of which witnesses who would have exonerated defendant by supporting his defense were not presented to testify. PCR counsel also alleged trial counsel's cumulative errors denied defendant a fair trial. Lastly, defendant argued his appellate counsel was ineffective for failing to argue on appeal trial counsel's coercion of defendant not to testify and failure to conduct a pre-trial investigation.
In a supplemental memorandum, defendant reiterated his trial counsel was ineffective for failing to investigate and present the testimony of favorable witnesses, and also alleged counsel was ineffective for failing to adequately cross-examine prosecution witnesses. In a supplemental pro se memorandum, defendant alleged he was denied a fair trial because he was denied the right to confront one of his accusers, who did not testify, and a sheriff's officer drove a juror to take care of a personal errand.
In support of his PCR petition, defendant submitted the affidavit of a man who averred he witnessed the theft of the automobile from the carjack victims (the PCR witness). The PCR witness averred that Herrill — the third co-defendant who pled guilty on two counts — and another man stole the vehicle, "which was left unoccupied with the engine running." The PCR witness also averred, "a month or so after the theft [Herrill] told me 'that the guy that burnt the car that he stole is named Pootah Shaheed from Alexander Street and that he was locked up now.'" Lastly, the PCR witness averred he "personally" knew Herrill, and defendant had been "wrongly convicted."
The judge who heard defendant's petition denied it without an evidentiary hearing. The judge rejected defendant's conclusory assertion that trial counsel had coerced him into not testifying, noting that the trial transcripts "clearly show[] that the [c]ourt explicitly asked [defendant] about his decision not to testify before both trials." The judge quoted verbatim the portion of each trial transcript in which the trial judge fully informed defendant of his right to testify and told defendant, "[in the event that your attorney counsels you to testify, . . . and you feel you do not want to], you do not have to testify. Conversely, if your attorney tells you not to testify and you want to testify, it is your right."
Next, the PCR judge rejected defendant's claim that counsel was ineffective for failing to conduct an adequate pre-trial investigation. The judge noted, defendant "claims that he was in the vicinity of the alleged criminal acts and that there were witnesses who . . . testified that [he] was not involved with the crimes," and that defendant had belatedly provided a new witness's certification. The judge concluded defendant failed to show that even if the new witness had testified on defendant's behalf at trial, "the testimony would have resulted in acquittal on the car-jacking charge." The judge explained, the new witness's statement "only shows his belief that the person who stole the car alongside Kyle Herrill . . . could not have been the [defendant]." The judge found such statements "to have little value in light of the overwhelming evidence, including in-court and out-of-court identification of [defendant]."
The judge also found incredible defendant's claim "he was merely in the vicinity" of the crimes, "given . . . [t]he crimes took place in three separate locations . . . [and] [a]t no point does [defendant] specify where he was that night and it is entirely implausible that he could have been seen 'in the vicinity' on all three crime scenes by chance."
The judge rejected defendant's claim counsel was ineffective for failing to adequately cross-examine the state's witnesses, citing examples in the trial transcripts of counsel's vigorous cross-examination and "attempt to dismantle the eyewitness testimony and prove inconsistencies therein." The judge found defendant's argument his counsel should have pursued a different line of cross-examination at the second trial to be nothing more than disagreement, in hindsight, with his counsel's trial strategy.
The judge also rejected defendant's claim he was denied his sixth amendment right to confront one of the juvenile victims. The victim in question did not testify and therefore "was in no way used to convict [defendant]."
Lastly, the judge found to be without merit defendant's claim that a sheriff's officer had assisted a juror with a personal matter, thereby "'taint[ing]' the juror, making him more sympathetic to the State's case." The judge noted the trial court had engaged in a searching colloquy with the juror to determine whether the sheriff's officer's assistance would in any way affect the juror's ability to decide the case fairly and impartially, based solely on the evidence and the court's instructions on the law. The judge quoted the trial court's colloquy with the juror. The judge also noted trial counsel requested the juror be removed, a request the trial judge denied.
Finding no prima facie case of ineffective assistance of counsel, the judge denied defendant's petition. Defendant filed this appeal.
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013) (citation omitted). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific 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). For example, "when a petitioner claims his trial counsel inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
When a defendant has provided the court with competent evidence, "[a]s in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Ibid. Defendants who establish a prima facie claim of ineffective assistance of counsel are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).
These principles apply as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).
With one exception, we agree with the PCR judge that defendant did not establish a prima facie case of ineffective assistance. The exception is defendant's claim that his trial counsel failed to conduct an adequate pre-trial investigation. As to that claim, defendant has "assert[ed] the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. The affiant, the PCR witness, averred he was an eyewitness, identified the perpetrators of the carjacking and the first of the three robberies, and exonerated defendant.
To the extent the judge who denied the petition found the new witness's statement lacking in credibility, he misapplied the standard that requires, "[a]s in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Cummings, supra, 321 N.J. Super. at 170. Ibid. To the extent he based his decision on Strickland's second prong, concluding the State's evidence was overwhelming and the trial's outcome would have been no different had the PCR witness testified at trial, we fail to discern how he reached that conclusion.
During the first trial, the jury failed to reach a verdict on the counts concerning the carjacking and robbery of the carjacking victims, the crimes the PCR witness averred defendant did not commit. That circumstance suggests the eyewitness testimony was not "overwhelming." Moreover, "[c]ontrary to the photo identifications, at trial [the carjacking victims] testified that they could not identify either defendant or [the co-defendant] as the robbers. [The second carjacking victim] stated that he knew [the co-defendant] from school, and would have recognized him." Shaheed, supra, No. A-2654-02T4, (slip op. at 9). Under those circumstances, we conclude defendant established a prima facie case of the second Strickland prong.
The record is not entirely clear as to whether defendant claimed, and the PCR judge considered, defendant's ineffective- assistance claim concerning the PCR witness as affecting only the offenses relating to the carjacking, or all of the offenses charged in the indictment. That issue should be clearly stated and resolved at the evidentiary hearing. Additionally, because the PCR judge who denied defendant's petition has expressed his views about the weight to be given to the PCR witness's statement, another judge should preside over the evidentiary hearing.
Our opinion should not be construed as suggesting defendant's trial counsel either was or was not ineffective. The conclusion as to that issue will likely turn on a multitude of factual and credibility determinations the judge will make based on the evidence presented at the evidentiary hearing. We have merely determined that defendant is entitled to an evidentiary hearing to attempt to prove his claim.
We reject defendant's remaining claims of ineffective assistance of counsel, substantially for the reasons given by the judge who denied the PCR petition. These remaining claims consist almost entirely of unsupported, conclusory assertions, many of which are belied by the trial records. These remaining claims are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
The order denying defendant's PCR petition without an evidentiary hearing is vacated and this matter is remanded for an evidentiary hearing on the limited issue concerning the PCR witness, as discussed in this opinion. We do not retain jurisdiction.
Order vacated and matter remanded for an evidentiary hearing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION