Opinion
DOCKET NO. A-0204-10T3
03-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARFIELD SIMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0377.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This appeal is from a denial of post-conviction relief. We conclude that the trial court abused its discretion in addressing the merits of points raised in a pro se supplemental brief despite PCR counsel's request for an adjournment necessary to permit him to meet with his client so that he could effectively argue those points. We also conclude that the trial court's decision does not include an adequate statement of findings and legal conclusion to permit appellate review. As a consequence of these errors, we remand for a new PCR hearing.
Because we have spent significant time reviewing the record provided on appeal before determining that we could not exercise original jurisdiction pursuant to Rule 2:10-5 to resolve the matter, we provide a detailed summary of our underlying findings and determinations. We do that not only to explain our reasons for remanding but also for the benefit of the attorneys and the judge who will be required to address the petition on remand.
I
A jury found defendant Garfield Simpson guilty of fourth-degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(3) (count one); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(10)(b) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); and fourth-degree possession of a prohibited weapon (stun gun), N.J.S.A. 2C:39-3h (count four). His co-defendant, Jamila Jendayi, was not tried with defendant. While the record provided on this appeal does not definitively establish how or when the charges against Jendayi were resolved, it is clear that neither Jendayi nor an attorney representing her attended the pre-trial conference in this case on January 31, 2006 or any other proceeding involving defendant thereafter, including the jury selection and trial that commenced on February 1, 2006 or the subsequent proceedings.
After merging defendant's convictions on counts one and three with his conviction on count two, the judge sentenced defendant to an extended term of sixteen-years imprisonment with an eight-year period of parole ineligibility on count two. The judge sentenced defendant to a concurrent eighteen-month term for possession of a stun gun on count four. We affirmed defendant's conviction and sentence, and the Supreme Court denied certification. State v. Simpson, No. A-5670-05 (App. Div. June 5, 2008), certif. denied, 196 N.J. 464 (2008).
II
The facts set forth here summarize and supplement those stated in the opinion issued on direct appeal. Id. at 2-4. The evidence establishing defendant's guilt was seized on October 23, 2003, during the execution of three warrants authorizing, respectively, a search of a second floor apartment at a specified address in Paterson, a search of a 2000 maroon-colored four-door Toyota Camary bearing a specified New Jersey registration and a search of defendant's person.
There was a fourth warrant supported by the same affidavit for a different premises in Paterson. The grand jurors charged persons other than defendant, including Jendayi, with crimes based on the evidence seized pursuant to that warrant.
The affidavit supporting the search warrants was sworn to and subscribed by a judge of Paterson's municipal court. The warrant signed by the judge who administered the oath to the affiants also states that the three detectives appeared before him. Three forms — one for each search — entitled "Search Warrant, Affidavit Return, Inventory and Receipt" were signed, but not sworn, by a detective. The return section on the warrant itself was also signed.
The warrant-documents were provided by the parties at the request of the panel. We also asked the parties to provide a warrant for defendant's arrest referenced in the briefs submitted by the defense. Although we directed the attorneys to provide a certification from someone competent to provide an explanation if any document was unavailable, we did not receive an arrest warrant or a certification of explanation. We suspect that there was no warrant for defendant's arrest, but this court does not generally act on supposition.
The apartment that was searched consisted of a living room, a hallway leading to the only bedroom, a bathroom and a kitchen. When the officers entered the apartment, defendant was in the doorway to the bedroom, and Jendayi was in the hallway between the bedroom and the kitchen. There were three women in the kitchen area — Lashanna King, Dion Garvey and Takeeya Planno. All of them were detained during the search, but the three women were released thereafter because the officers had no basis for linking those women with that apartment.
No contraband was found in the Camary. In the apartment and car, the police found and seized mail and other documents addressed to defendant and Jendayi. In the apartment, police found over ten pounds of loose marijuana in fifteen zip lock bags, thirteen large and two smaller. Ten of the large bags were found in the hallway outside the bathroom in a box for a digital scale. Three large and the two smaller bags were inside a laundry bag and a black plastic garbage bag near the bedroom closet. By the time of trial, the police had confirmed that the substance in the plastic bags was marijuana, and that its total weight was about fifteen pounds.
The record includes conflicting accounts as to whether the black plastic bag was inside the laundry bag or the laundry bag was inside the black plastic bag.
In addition, a stun gun was found in the bedroom, and a digital scale and small, unused plastic bags were found in the kitchen. In the pocket of defendant's pants, the officers found $1068. No traces or residue of marijuana were found on the scale or in the kitchen, and there was no testimony indicating that the officers detected the odor of marijuana in the apartment. Defendant was arrested following the search, but no other person present in the apartment was arrested. Subsequently, he and Jendayi were indicted by the grand jury with possessing the drugs in the apartment.
The return on the warrant for defendant's person indicates that the cash was recovered, but it is not clear that defendant was wearing the pants at the time of the search. One officer testified that he might have been wearing a towel when the officers entered the apartment.
The theory of the defense was that the marijuana was King's, and that defendant was unaware of and did not exercise control over the drugs. In short, it was a defense of third-party guilt.
Takeeya Planno gave supporting testimony for the defense. She explained that King was defendant's roommate and friend, and there was no evidence that defendant and King had any relationship other than a friendship. According to Planno, Dion Garvey and she went to the apartment that evening because defendant had invited them to dinner, and King opened the door for them. To support the inference that the marijuana was King's, the defense, by stipulation, introduced criminal complaints, an arrest report and an indictment all naming King and establishing that fourteen days before this search she was charged with crimes related to possession of marijuana in Long Branch.
The defense also provided testimony to cast doubt on circumstantial evidence indicative of defendant's guilt. Planno testified that defendant had a digital scale because he often cooked at home and used it to measure food portions. Antoine Huffman, a member of a R&B and reggae band led by defendant, testified that defendant usually paid the band members in cash after performances.
Defendant did not testify.
III
On direct appeal, defendant's counsel raised nine issues, and defendant submitted a pro se brief contending that he was denied effective assistance of counsel and asserting five errors supporting that contention. The PCR court, for the most part, denied relief solely on the ground that the issues had been addressed by the Appellate Division. For that reason, we set forth the points raised on direct appeal and summarize the panel's determination on each point.
Defendant's appellate counsel raised nine issues.
POINT I
THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S MOTION TO PRECLUDE ANY MENTION OF THE SEARCH WARRANTS, INCLUDING THE SEARCH WARRANT FOR HIS PERSON. (U.S. Const. Amends.
IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
The panel addressed and rejected this claim based on the search warrants. The trial judge had concluded that the State could inform the jurors that the search of the apartment and defendant were completed pursuant to warrants. The panel determined that this ruling, which permitted the State to explain why the apartment was searched and why defendant was detained while others present were not, was consistent with State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) and State v. Milton, 255 N.J. Super. 514 (App Div. 1992). Simpson, supra, slip op. at 8-13.
POINT II
THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MULTIPLE MOTIONS FOR A MISTRIAL BECAUSE THE PROSECUTOR VIOLATED THE TRIAL COURT'S RULING TO PRECLUDE ANY TESTIMO[NY] AS TO THE FACTS AND INVESTIGATION UNDERLYING THE ISSUANCE OF THE SEARCH WARRANTS WHICH PREJUDICE WAS NOT EFFECTIVELY CURED BY THE COURT'S LIMITING INSTRUCTIONS. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
The panel determined that the motion for a mistrial based on a detective's reference to a pre-search briefing was properly denied because the comment was "innocuous" and the curative instruction given was adequate. Id. at 14-17.
The panel also rejected defendant's claim that the court erred in denying a mistrial based on a question posed to the court by the deliberating jury — "whether 'the search warrant [was] for Garfield Simpson, [the apartment] or both?'" Id. at 17. The panel concluded that the trial court's instruction responding to that inquiry was "clear and unambiguous." Id. at 18. In finding no error, the panel observed that defense counsel had participated in the drafting of that instruction. Ibid.
POINT III
THE TRIAL COURT RENDERED A TOTALLY INADEQUATE JURY CHARGE WHEN (1) HE REJECTED SIMPSON'S REQUEST FOR HIS VERSION OF A THIRD-PARTY LIABILITY CHARGE AND (2) WHEN HE REJECTED SIMPSON'S REQUEST FOR A CHARGE TO AVOID PREJUDICE AGAINST HIM ON HIS POSSESSION OF MARIJUANA CHARGES BECAUSE OF HIS DREADLOCK HAIRSTYLE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
The panel rejected these objections to the jury instruction as well. Ibid. With respect to the charge on third-party guilt, the panel stated that the instruction "accurately and appropriately advised the jury." Id. at 22. The panel further determined that the charge defendant preferred, which would have suggested that King's possession would in fact raise a doubt about defendant's guilt, would have had the capacity to mislead the jury given the evidence supporting a finding of defendant's liability based on joint or constructive possession, which were charged to the jury. Ibid.
With respect to a special instruction on defendant's appearance, the panel concluded that the instruction given, which directed the jury's consideration of nothing but the evidence without speculation, conjecture, prejudice or sympathy, was adequate. Id. at 23.
POINT IV
THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING HIS MOTION FOR SUPPRESSION OF THE EVIDENCE SEIZED AT [THE APARTMENT] AND ALLEGEDLY ON HIS PERSON AT THE FRANKS HEARING. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
The panel denied relief on this claim because defendant had failed to make the showing necessary for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Howery, 80 N.J. 563, 567, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Id. at 23-26.
POINT V
THE TRIAL COURT SUA SPONTE SHOULD HAVE DEALT WITH THE RECUSAL ISSUE AND RECUSED HIMSELF UNDER R. 1:12-1 AND UNDER THE CODE OF JUDICIAL CONDUCT CANNONS [SIC] 1, 2 AND 3 WITHOUT PREJUDICE TO HIS POSITION ON THE LACK OF MERIT IN KAREN PICHARDO'S CONTENTIONS CONCERNING THE COURT'S ASSERTED BIAS AGAINST SIMPSON ON OCTOBER 25, 2007
WHEN THE TRIAL COURT LEARNED OF THOSE CONTENTIONS FROM SIMPSON'S RETAINED COUNSEL AND BEFORE THE TRIAL STARTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
The panel set forth the basis for the allegations underlying the recusal issue and the manner in which it was addressed. Id. at 26-30. Noting that the better course would have been to address the allegation on the day it was advanced, the panel concluded that "the record developed at the post-judgment motion[, which was filed by defendant pro se in connection with an application for bail pending appeal,] clearly establishes the bogus nature of the alleged misconduct." Id. at 30-31.
POINT VI
SIMPSON'S CONSTITUTIONAL RIGHTS TO BE PRESENT AT ALL CRITICAL STAGES IN HIS TRIAL WERE VIOLATED WHEN HE WAS PRECLUDED FROM ATTENDING THE OCTOBER 25, 2005 IN CAMERA CONFERENCE REGARDING THE KAREN PICHARDO CONTENTIONS. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
The panel held that the conference was not a critical stage of the trial. Id. at 33. The panel further concluded that defendant's absence did not deprive defendant of his right to disqualify the judge. Ibid. In that regard, the panel noted that defendant himself subsequently stated that he had no intention of filing a motion to disqualify the judge. Ibid.
In fact, during a colloquy that took place at a motion hearing on November 4, 2005 concerning an application of defendant's attorney to be relieved as counsel, the judge asked defendant whether there would be a "motion seeking to disqualify" him. Defendant responded, "No, your honor." Subsequently, defendant, who did not support his attorney's motion to withdraw, "assure[d]" the judge that there would "be no problem with [his] sitting and presiding over this case and [his then-attorney] representing" him.
POINT VII
THE TRIAL COURT SUA SPONTE SHOULD HAVE DISMISSED THIS CASE AGAINST SIMPSON BECAUSE THE POLICE USED UNLAWFUL PROCEDURES TO OBTAIN THE ARREST WARRANT UNDER WHICH HE WAS ARRESTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
The panel found this claim so lacking in merit as to require no discussion in a written opinion. Id. at 33-34.
POINT VIII
SIMPSON'S RETAINED COUNSEL AND HIS ASSIGNED COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO (1) MOVE TO RECUSE THE TRIAL COURT, (2) INVESTIGATE THE FACTS SURROUNDING THE ISSUANCE OF THE ARREST WARRANT AND TO MOVE FOR A DISMISSAL OF THE CASE ON THE GROUNDS OF AN ILLEGALLY ISSUED ARREST WARRANT, (3) ARGUE THE FLAWED RETURN OF THE INVENTORY ISSUES AS A BASIS FOR OBTAINING AN EVIDENTIARY HEARING ON THE SEARCH WARRANTS, (4) FOLLOW UP ON A MOTION TO SUPPRESS THE EVIDENCE SEIZED UNDER THE SEARCH WARRANTS AS A MATTER OF LAW, AND (5)
[] INVESTIGATE THE RELATIONSHIP OF PAUL UHLIK, ESQ. TO THIS CASE. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
Noting that claims of ineffective assistance of counsel are usually reserved for the trial court because they require development of a record beyond the trial court record and that this appeared to be such a case, the panel "reserve[d] the opportunity for defendant to present this issue in a petition for post-conviction relief." Id. at 34-35.
The record includes the following facts pertinent to defendant's claim about Mr. Uhlik, which claim is the basis for his fifth allegation of deficient performance.
Paul M. Uhlik, a former assistant prosecutor for Passaic County who retired and joined the firm of Fusco and Macaluso, represented Jendayi at pretrial conferences and motion hearings on June 5, October 24, November 4, and December 12, 2005. Prior to that, Jendayi was represented by Philip Y. Ing, Esq., also of the firm Fusco and Macaluso, and by January 31, 2006, Jendayi was no longer participating in this prosecution.
Mr. Uhlik took no position and presented no argument on June 5. On October 24, he advised the court that he had been employed by the prosecutor's office until he retired on September 1, 2004, and that had been working there when these crimes were investigated and evidence was seized. Mr. Uhlik, however, stated that he had not had any involvement in the case while serving in the prosecutor's office other than preparing a civil forfeiture complaint, which he did by reviewing the police report and the affidavit for the search warrant.
The court questioned Jendayi as to whether she waived any conflict based on Mr. Uhlik's prior employment, and she confirmed that she did on the record. Neither the State nor defendant's counsel objected.
On November 4, 2005, the court heard arguments on and granted a motion filed by defendant's attorney to be relieved as counsel. Mr. Uhlik took no position on that motion other than to indicate that he advised his client that if defendant's attorney was relieved trial would likely be delayed. During the colloquy between the court and defendant's attorney, defense counsel indicated that he had consulted with Mr. Uhlik as cocounsel and they had prepared everything they needed and would hand it over to defendant's new attorney, whoever it might be.
At the next conference, on December 12, 2005, Mr. Uhlik advised that Jendayi's defense was that she was not living in the apartment or anywhere else in Paterson on the night of the search.
POINT IX
SIMPSON'S SENTENCES WERE ILLEGAL AND MANIFESTLY EXCESSIVE.
The panel affirmed the sentence as consistent with sentencing guidelines set forth in the pertinent statutes and neither remarkable nor shocking to the judicial conscience. Id. at 35-37.
On direct appeal, defendant filed a pro se supplemental brief, in which he contended that his trial counsel was ineffective and stated five bases for that claim:
POINT I
DEFENDANT-PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF TRIAL, AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS 4th, 6th, 14th AMENDMENT CONSTITUTIONAL RIGHTS.
POINT A
DEFENDANT-PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL
REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF THE COURT. R. 3:3-3(A), (B); R. 3:3-1(A)(1); AND, NEW JERSEY'S CONSTITUTION ARTICLES I & VII.
POINT B
THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.
POINT C
THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR ME TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTIONS ABILITY TO CONTINUE ITS PROSECUTION.
POINT D
PRE-TRIAL & TRIAL COUNSEL FAILED TO OBJECT TO THE REPRESENTATION OF MY CO-DEFENDANT BY THE FORMER PROSECUTOR OF MY INDICTMENT DURING A PLENARY HEARING FOR THE "UNWAIVABLE" WAIVER OF CONFLICT.
POINT E
MY PRE-TRIAL ATTORNEY DURING THE ATTEMPTED RECUSAL OF JUDGE SUBRYAN SHOULD HAVE REQUIRED THE RECORDATION OF THE HEARING "EN CAMERA". THIS FAILURE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
The panel did not address these claims separately. But the panel's disposition of these claims is included in its disposition of claims of ineffective assistance raised in Point VIII of appellate counsel's brief. The claims were preserved for PCR.
IV
On appeal from the denial of defendant's petition for PCR, defendant's appellate attorney raises these three issues:
POINT ONE
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-5.
POINT TWO
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF TRIAL COUNSEL.[]
POINT THREE
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
To the extent defendant's appellate counsel on PCR attempts to incorporate by reference arguments PCR counsel raised in the trial court, defense counsel overreads State v. Rue, 175 N.J. 1 (2002), and State v. Webster, 187 N.J. 254 (2006). Those cases permit PCR counsel to incorporate by reference arguments presented by the defendant on his own behalf.
In addition, defendant advanced numerous issues in the trial court. He raised them in three separate submissions.
In the first brief filed with his initial petition, defendant argued:
POINT I
DEFENDANT-APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF PRETRIAL, TRIAL, AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL & 14TH AMENDMENT RIGHT TO "DUE PROCESS."
In support of this point, defendant simply states the standard for relief based on ineffective assistance of counsel.
POINT A
MY 4TH & 14TH CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF THE COURT, R. 3:3-3(A), (B); R. 3:3-1(A)(1); AND, NEW JERSEY'S CONSTITUTION ARTICLE I & VII.
Defendant argues that no warrant for his arrest had been issued, and that the complaint was attested to and signed in the presence of another officer.
POINT B
THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING
OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.
Defendant argues that an officer may not issue an arrest warrant.
POINT C
THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR ME TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTION[']S ABILITY TO CONTINUE ITS PROSECUTION.
Defendant argues that because his arrest was unlawful for the reasons offered in Points A and B, suppression of the evidence collected on execution of the search warrant was required.
POINT D
PRE-TRIAL & TRIAL COUNSEL FAILED TO OBJECT TO THE REPRESENTATION OF MY CO-DEFENDANT BY THE FORMER PROSECUTOR OF MY INDICTMENT & THE ASSISTANT PROSECUTOR WHO FILED A CIVIL FORFEITURE ACTION DURING A PLENARY HEARING FOR THE "UNWAIVABLE" WAIVER OF CONFLICT.
Defendant argues that his trial attorney should have contended that the former assistant prosecutor's representation of his co-defendant, Jendayi, was precluded by conflict of interest affecting defendant.
See footnote 5, supra.
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POINT E
MY TRIAL ATTORNEY DURING THE MOTION TO RECUSE JUDGE SUBRYAN SHOULD HAVE REQUIRED THE RECORDATION OF THE HEARING "EN CAMERA." THIS FAILURE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant's point concerning the judge's recusal is self-explanatory.
In a second pro se brief, defendant argued:
POINT 1A
The Trial Court lacked subject matter jurisdiction to give jury instructions of joint possession and joint constructive possession in determination of defendant's guilt with Lashanna King and vicariously through Lashanna King as she was never arrested, charged, nor indicted as a co-defendant; such instructions supplanted the Grand Jury process, obfuscated the petit jury and impermissibly broadened the scope of the indictment by amendment and broadened the base for conviction.
POINT 2A
The extended presentation of known perjured/false testimony as to search warrant for the defendant's person by the prosecution during grand jury proceedings, during trial and jury deliberations was material in defendant's indictment and verdict.
POINT 3A
Trial Court's lack of limiting instructions as to evidence of defendant's "other crimes" defense, despite defense counsel's objection, coupled with erroneous joint possession and joint constructive possession charge, precluded the jury from making a finding of fact and directed the jury to use said evidence as proof of defendant's culpability for the charged offense.
POINT 4A
The Trial Court[']s reading to the jury of the four (4) counts of defendant's indictment to repeatedly include the name of former co-defendant Jamila Jendayi — who was disjoined prior to trial, PTI, No Plea, No Statement against defendant, charges dropped, property returned — the language used to instruct jury of defendant's other crimes evidence and, despite Trial Court's previous orders to the contrary, again informs jury of prior Police investigation, in addition to joint possession and joint constructive possession charges, created an unconstitutional mandatory presumption that foreclosed independent jury consideration of the facts and removed the prosecution[']s burden of proving the elements of knowledge and possession.
In addition, the transcript of the PCR hearing indicates that shortly before the hearing on the petition defendant filed a third brief. This additional brief includes seven points. One of those points, Point III, addresses issues included in his first brief in Point E.
POINT I
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO "CHALLENGE" THE FACTS THAT NO EVIDENCE WAS EVER PRESENTED TO THE WARRANT ISSUING COURT NOR TO THE TRIAL COURT OF A CONTROLLED BUY AND ASSERTATIONS IN AFFIDAVIT IN SUPPORT OF SEARCH WARRANT. COUNSEL SIMPLY ACCEPTED THE STATE'S VERSION OF THE FACTS "WITHOUT CONFRONTATION," DESPITE THE OPPORTUNITY TO NEGATE THE PROBABLE CAUSE THAT TRIGGERED ISSUANCE OF SEARCH WARRANTS. (U.S. CONST. AMENDS. IV, VI & XIV; N.J. CONST. (1947) ART. I, PARAS. 7 & 10).
POINT II
TRIAL COURT DENIED DEFENDANT'S HIS [SIC] RIGHT TO A TRIAL BY JURY WHEN UNCHARGED, UNADJUDICATED OFFENSES NOT PRESENTED TO A PETIT JURY WERE USED IN DETERMINATION OF SENTENCING; IT APPEARS THAT THIS WAS AN ACT OF RETALIATION. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT III
THE TRIAL COURT ALLOWED A CONFLICT OF INTEREST AND AN APPEARANCE OF IMPROPRIETY BY ALLOWING FORMER SENIOR ASSISTANT PASSAIC COUNTY PROSECUTOR PAUL UHLIK TO REPRESENT PETITIONER'S FORMER CO-DEFENDANT AFTER HE HAD BEEN THE INITIAL PROSECUTOR FOR THIS CASE BEFORE RETIREMENT. (U.S. CONST. AMENDS VI & XIV; N.J. CONST. (1947) ART. I, PARAS. 7 & 10).
POINT IV
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PRINCIPLE OF ESTOPPEL TO ERRONEOUSLY SUGGEST AND TRIAL COURT AGREEING TO GIVE JURY CHARGE OF JOINT POSSESSION, JOINT CONSTRUCTIVE POSSESSION AS
TO LASHANNA KING, DEFENDANT AND CONTRABAND FOUND AT [THE APARTMENT]; SUCH JURY CHARGES WERE NOT SUPPORTED BY THE RECORD AND MISLED THE JURY. (U.S. CONST. AMENDS VI & XIV; N.J. CONST. (1947) ART. I, PARAS. 7 & 10).
POINT V
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING SIMPSON'S PRE-TRIAL MOTION IN LIMINE TO PRECLUDE ANY MENTION OF THE SEARCH WARRANTS, INCLUDING THE SEARCH WARRANT FOR HIS PERSON. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT VI
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S MULTIPLE MOTIONS FOR A MISTRIAL BECAUSE THE PROSECUTOR VIOLATED THE TRIAL COURT'S RULING TO PRECLUDE ANY TESTIMONY AS TO THE FACTS AND INVESTIGATION UNDERLYING THE ISSUANCE OF THE SEARCH WARRANTS WHICH PREJUDICE WAS NOT EFFECTIVELY CURED BY THE COURT'S LIMITING INSTRUCTIONS. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
POINT VII
DEFENDANT[] WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL DID NOT REQUEST THAT JURY CHARGE DISTINGUISH BETWEEN CONTRABAND FOUND IN THE LAUNDRY BAG AND CONTRABAND FOUND IN SCALE BOX THUS COMPROMISING JURY UNANIMITY. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).
At the hearing on defendant's petition in the trial court, PCR counsel advised the court that there was an issue with respect to defendant's last filed brief. He elaborated:
My concern is that — because I'm not — notwithstanding have read it, reading it and making an argument from it are two different things. I didn't write it. So my concern is that I would not be effective counsel if I just allow the Court to consider this document without making an effective argument from it. I would like to meet with my client on this through a VTC, and go over it, and make sure I understand the thrust of his argument, and then go forward from there.
On the prosecutor's observation that the brief raised issues addressed by this court on direct appeal — an observation which was based on the prosecutor's review of the brief handed to him moments earlier in the course of the motion hearing — the judge determined that he was in a position to address the merits. PCR counsel again noted his objection.
The court proceeded to deliver its opinion, which consisted of little more than identification of the issues that he deemed to have been addressed by this court on direct appeal. Where the court denied relief for a different reason, its explanation was cursory and not accompanied by reference to the supporting evidence or law.
In several cases the court's determination that the matter had been addressed on appeal was wholly erroneous. It is wrong to conclude that a claim of ineffective assistance of counsel contributing to trial error is the same as a claim asserting trial error.
In order to obtain relief from a conviction based upon ineffective assistance of counsel, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)).
In some cases, an appellate court's determination on a point of trial error may preclude a showing of deficient performance, prejudice or both. For example, where a jury instruction on a particular element of an offense is upheld on appeal as wholly proper and complete, neither a claim of deficient performance based on failure to object to that instruction nor resulting prejudice could be shown. See, e.g., State v. Harris, 181 N.J. 391, 497 (2004) (noting that failure to assert a baseless objection is not deficient performance), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
But that is not always the case, and even when it is the case, a PCR court must articulate the facts that lead it to conclude that a ruling on the merits of a claim of trial error precludes a showing of one of the two essential requirements for relief based on ineffective assistance. R. 1:7-4; R. 3:22-11. Moreover, in this case it was clear that the panel on direct appeal reserved all claims of ineffective assistance for PCR.
As noted above, where the PCR court denied relief for reasons other than its impression that the claims had been addressed on direct appeal, the court provided no reasons based on the evidence or the law. In that respect, the opinion leaves us to speculate about how the court concluded that there was "absolutely no basis for granting the application for post-conviction relief or scheduling any testimonial hearing on it." For that reason, remand is warranted.
Remand is required for another reason as well. We refer here to the PCR court's decision to address the merits of the issues raised in defendant's third pro se brief without giving PCR counsel the opportunity that he needed to confer with his client and prepare in order to provide effective assistance of counsel. PCR "is not a pro forma ritual." State v. Rue, 175 N.J. 1, 18 (2002).
In this state, counsel must be provided in all cases on a first petition if defendant cannot afford to retain an attorney. Id. at 16-17. Whether retained or appointed, the attorney has a responsibility "to communicate with his client and investigate the claims." Id. at 18; State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). The attorney must "'fashion the most effective arguments possible'" to advance his or her client's cause. Rue, supra, 175 N.J. at 18 (quoting Velez, supra, 329 N.J. Super. at 133). Where there is a right to counsel, it is an abuse of discretion to deny an adjournment to permit a defendant to obtain representation if the attorney representing defendant is not in a position to provide it. State v. Hayes, 205 N.J. 522, 526 (2011). Nothing in this record, including the PCR court's decision denying the claims raised in the recently-filed brief, indicates that PCR counsel had a firm grasp of the issues raised. In fact, PCR counsel admitted that he did not in requesting the adjournment.
A trial court certainly has broad discretion in addressing adjournment requests and our review of such determinations is limited to determining whether it was abused. Id. at 537-39. In fact, Rule 3:22-9 addresses the time for filing petitions and amendments to them, which are to be permitted with liberality, and it expressly authorizes the court to "make such other orders with respect to pleadings that it deems appropriate."
We mention Rule 3:22-9 because it is obvious that defendant's multiple filings, particularly the final submission, imposed a burden on the court. But the court did not rely on the Rule or make determinations based on its obligation and authority to control the proceedings on this petition. Instead, the court reached the merits rather than adjourning the matter or preserving the arguments raised in that brief for a second petition, a step that would have entitled defendant to representation on a showing of good cause. R. 3:22-6(b).
In the end, the interests of judicial economy and justice were not well-served by the approach taken in this case. There has been a determination on the merits in a proceeding on defendant's first petition. Where a PCR counsel has not investigated and explored the defendant's claims as necessary to provide "the representation guaranteed by our PCR Rule," remand for a new PCR hearing is appropriate. Rue, supra, 175 N.J. at 19. Because it appears that defendant did not have that representation with respect to the points raised in his final submission, a new hearing is required here.
For the benefit of PCR counsel and the PCR court on remand, we address the matter of counsel incorporating a defendant's pro se arguments by reference. In State v. Webster, 187 N.J. 254, 257 (2006), the Court explained the rule the Court articulated in Rue as follows:
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. That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required.
In our view, where PCR counsel has filed a brief, whether it be on the initial petition or an appeal from it, counsel does not satisfy its obligation under Webster by including an indiscriminate reference to a pro se brief that raises some apparently overlapping but not identical issues as those pressed by counsel along with other issues not raised by counsel. The argument that defense counsel presents on a point should be complete, directing the court to related arguments counsel has not presented with specificity when necessary. In addition, defense counsel should identify those points that defendant has raised that counsel has not addressed at all.
Neither the interests of justice nor the client, not to mention the interest in judicial economy, are served by leaving the PCR court or a reviewing court to digest and compare multiple submissions in order to isolate the points that defense counsel has not advanced but defendant has. Our recitation of the numerous issues raised in defendant's various pro se submissions, which appellate counsel incorporated only by general reference and without any additional guidance, illustrates the importance of a clear identification of the claims. Clearly, defense counsel, who has presumably followed his or her obligation to advance all arguments that have merit, is in the best position to present a coherent summary, and undoubtedly such a summary will best serve the defendant's interest in having the issues heard.
We would be remiss if we did not indicate that the State's brief was of no greater assistance in synthesizing the materials to permit us to determine whether some or all of the points raised could be resolved. Along the same lines, we note that the rules of appellate practice do not permit a respondent to rely on the statements of fact and procedural history while reserving the right to supplement those statements in the argument section of its brief. See R. 2:6-4(a). Where additional procedural or evidential facts are critical to the legal analysis, the State should state them along with its assertion that the State is otherwise adopting the procedural history and facts stated in defendant's brief.
This decision should not be understood to express any opinion on the merits or the need for an evidentiary hearing. Those matters are for the trial court to consider in the first instance, recognizing the importance of PCR proceedings that the Supreme Court has addressed at length in its recent decisions. See State v. Nash, _ N.J. _ (2013); State v. Parker, 212 N.J. 269 (2012); see also State v. Porter, 210 N.J. 119 (2012) (granting certification "limited to the issue of whether defendant was entitled to an evidentiary hearing on his petition for post-conviction relief"; argument heard January 15, 2013).
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION