Opinion
DOCKET NO. A-1162-13T4
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM STOVALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Winnie Ihemaguba, Designated counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Brett A. Berman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 91-12-1439. Joseph E. Krakora, Public Defender, attorney for appellant (Winnie Ihemaguba, Designated counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Brett A. Berman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant William Stovall, an inmate at New Jersey State Prison, was charged and convicted of several offenses for attempting to procure weapons and explosives to facilitate an escape from prison. He now appeals from a September 19, 2012 trial court order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
I.
We fully set forth the factual background of this case in our prior opinion affirming defendant's conviction on direct appeal, State v. Stovall, No. A-0850-94 (App. Div. Dec. 2, 1996), certif. denied, 149 N.J. 35 (1997), and need not repeat it here.
This matter commenced in 1991, when a Mercer County grand jury charged defendant with ten offenses: second-degree conspiracy to escape from prison, N.J.S.A. 2C:5-2 and 29-5(a); second-degree attempt to escape from prison, N.J.S.A. 2C:5-1 and 29-5(a); second-degree attempt to procure implements of escape from prison, N.J.S.A. 2C:5-1 and 29-6(a)(2); second-degree attempt to possess firearms for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-4(a); second-degree attempt to possess destructive devices for an unlawful purpose, N.J.S.A. 2C:5-1, 39-4(c); third-degree attempt to possess handguns for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-5(b); third-degree attempt to possess an assault firearm for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-5(f); third-degree attempt to possess destructive devices for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-3(a); fourth-degree attempt to possess a firearm silencer for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-3(c); and fourth-degree attempt to possess armor-penetrating ammunition for an unlawful purpose, N.J.S.A. 2C:5-1 and 39-3(f)(2).
A jury convicted defendant of all ten offenses. The court sentenced defendant to thirty years imprisonment with twenty years of parole ineligibility, to run consecutively to a previously imposed sentence of seventy-five years with a thirty-six-year parole disqualifier. On direct appeal, we affirmed the conviction, but remanded the matter for re-sentencing. Stovall, supra, slip op. at 20.
On remand, the trial court eventually sentenced defendant to a thirty-year prison term with ten years of parole ineligibility.
According to the State's brief, on November 17, 1997, defendant filed a pro se petition for PCR; counsel for defendant filed but then withdrew a brief, but the petition was not withdrawn. At some point thereafter, defendant was appointed counsel, who filed a supplemental brief in 2011, asserting ineffective assistance of counsel. On September 19, 2012, the PCR judge denied the petition without an evidentiary hearing. Defendant now submits the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO REQUEST CURATIVE INSTRUCTIONS OR MOVE FOR A
MISTRIAL WHEN UNSTIPULATED POLYGRAPH EVIDENCE WAS INTRODUCED AT TRIAL.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO DEFENDANT'S WITNESSES TESTIFYING IN PRISON GARB WHILE HANDCUFFED AND SHACKLED.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [POST-CONVICTION] RELIEF SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO CHALLENGE THE ADMISSION OF UNSTIPULATED POLYGRAPH TESTIMONY AT TRIAL.
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE POST-CONVICTION RELIEF PETITION.
POINT V
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
II.
To establish a prima facie case of ineffective assistance of counsel, a petitioner must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the petitioner to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United State's Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Prejudice means "a reasonable probability" the deficient performance "materially contributed" to the petitioner's conviction. Ibid.
A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim, the petitioner "must allege specific facts and evidence supporting his allegations." Id. at 355. The trial court has discretion to dispense with an evidentiary hearing "[i]f 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[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Defendant first argues that his trial counsel provided ineffective assistance during trial by failing to object to certain testimony from Daniel Ducret, one of the State's principal witnesses. Ducret was a jailhouse informant who had tipped off the authorities about defendant's plan to escape from prison, and assisted with the undercover investigation that led to defendant's arrest. During his cross-examination, Ducret mentioned that he underwent a polygraph test prior to working with law enforcement during the investigation. Rather than moving to strike this reference to the polygraph, defendant's trial counsel changed the subject and moved on with the cross-examination.
The polygraph was also indirectly referenced by one of the detectives involved in the investigation, who testified that he had taken steps to corroborate Ducret's information.
In New Jersey, polygraph results are generally not admissible at trial. State v. Domicz, 188 N.J. 285, 312-14 (2006). Further, direct or indirect references to the results of a polygraph test are inadmissible, and have the potential to prejudice a defendant. State v. Arnwine, 67 N.J. Super. 483, 495 (App. Div. 1961).
Although noting that the references to Ducret's polygraph test were inadmissible, the PCR judge concluded that defendant was not prejudiced by his counsel's failure to request a curative instruction or move for a mistrial:
The reference to polygraph information was brought out by questioning from the defendant's trial counsel on cross examination of Daniel Ducret. After there was mention of a polygraph test, defense counsel diverted the questioning onto another subject and did not press about the results of the test. The State also did not ask any questions on redirect about the results of the polygraph test. The reference to the test was minimal. Further,
the results of the polygraph test were not explored by [defendant's] trial counsel. It was for the jury to decide the credibility of the witnesses. Given the length of the trial, the number of witnesses and the weight of the evidence against the defendant weighted against the one time reference to a polygraph test, it is unreasonable that a jury hearing that a polygraph test was given would jump to the conclusion that the test was passed and therefore the State's main witness was more credible than before.
We discern no error in the PCR judge's conclusion. As for the first prong of the Strickland test, trial counsel's decision not to raise an objection to the polygraph reference was not a constitutionally-deficient trial strategy. The reference to the polygraph was plainly inadmissible; however, rather than bringing more attention to the polygraph, defense counsel chose to change the subject and move on with his cross-examination. Defense counsel did not explore the issue further, and the results of the polygraph were never introduced at trial. As Ducret only made a passing reference to the polygraph, the effect was likely minimal. Although trial counsel might have requested the court to address the passing reference to the polygraph, merely having a legal basis to object to evidence does not necessarily impose a constitutional duty to do so.
Furthermore, the PCR judge correctly concluded that defendant was not prejudiced by the reference to the polygraph test. Even assuming that the jury gave more weight to Ducret's testimony based on an inference that he had passed a polygraph test, defendant's conviction was supported by compelling evidence provided by another witness. Specifically, Detective Amalio Nieves — who worked undercover as Ducret's supposed gun and explosives dealer and dealt directly with defendant — testified extensively to defendant's efforts to procure weapons and explosives for the purpose of escaping from prison. This testimony was clearly sufficient, standing alone, to support the jury's verdict. Defendant's argument that "the State's case hinged on Ducret's credibility" is unfounded, in light of the overwhelming evidence against him provided by Detective Nieves.
For substantially the same reasons, defendant challenges the sufficiency of his appellate counsel's representation. He asserts that "but for appellate counsel's failure to challenge the trial court's abuse of discretion, the outcome of this case would have been different, a new trial where the unstipulated polygraph test is excluded." For the reasons already noted, we discern no merit in defendant's claim of ineffective assistance of appellate counsel.
Defendant next asserts that his trial counsel provided ineffective assistance by failing to object when two of his supporting witnesses, who were inmates, were required to testify in shackles and prison garb. Defendant contends that his trial counsel's failure to object to the requirement — or, alternatively, to request a Rule 104 hearing on the issue — was prejudicial because the shackles and prison garb "had the potential of undermining the testimony that [the witnesses] offered on [defendant's] behalf."
We agree with the PCR judge that defendant was not prejudiced by his trial counsel's failure to object to this requirement. During trial, it was obvious that the witnesses were New Jersey State Prison inmates. Both men testified that they were inmates who had direct contact with Ducret; in fact, their current incarceration was the focal point of their testimony. Defendant's argument that the jury might have reached a different result if these two witnesses had testified in plain clothes and without shackles clearly lacks merit. The testimony of both witnesses focused on the fact that Ducret had also approached them about potentially facilitating a weapons deal. Even assuming that their testimony had been given full weight, defendant has not shown any reasonable probability that the jury's decision would have been different. The PCR judge correctly concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel.
The Supreme Court has since ruled that "a trial court may not require a defendant's witness to appear at trial in prison garb[,]" State v. Artwell, 177 N.J. 526, 539 (2003); however, in State v. Dock, 205 N.J. 237 (2011), the Court stated, "Artwell's limited prohibition on the use of restraints on defense witnesses . . . is to have prospective effect." Id. at 258-59. Thus, as defendant's trial took place in 1994, the trial court did not violate the rule in Artwell by requiring defendant's witnesses to testify in prison garb. --------
We also reject defendant's argument that the PCR court erred by failing to conduct an evidentiary hearing on his petition. A hearing is required
only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required on defendant's petition. We are convinced that the existing record was sufficient to resolve defendant's claims. Moreover, even assuming that defendant's counsel committed errors, we discern no reasonable probability that any such errors materially contributed to his convictions.
[R. 3:22-10(b).]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION