Opinion
DOCKET NO. A-5967-11T1
10-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY VAUGHN, Defendant-Appellant.
Joseph Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-05-572. Joseph Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Defendant Jeffrey Vaughn is serving an aggregate prison term of eight years with four years of parole ineligibility, a jury having convicted him of two controlled dangerous substance (CDS) offenses. He appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
The facts leading up to defendant's arrest and the procedural history of this case are detailed in our unreported opinion affirming defendant's convictions and sentence on direct appeal, State v. Vaughn, No. A-5563-07 (App. Div. Aug. 17, 2010), certif. denied, 205 N.J. 101 (2011), and need only be briefly summarized. In November 2005, an undercover narcotics officer went to defendant's second floor apartment in Millville where defendant sold him two "rocks" of cocaine for twenty dollars. Following the sale, law enforcement officers obtained a search warrant and searched the second floor apartment as well as the building's attic. During the search, the officers seized from a bedroom dresser drawer various documents that belonged to defendant, and from the attic a digital scale and a coffee mug containing 20.639 grams of cocaine.
That evidence was among the proofs the State presented to the jurors who convicted defendant of third-degree distribution of a CDS, cocaine, N.J.S.A. 2C:35-5(b)(3), and second-degree possession of a CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(b)(2). In doing so, the jurors rejected defendant's assertion that his brother lived in the upstairs apartment and he, defendant, had been mistakenly identified.
The court sentenced defendant to the eight-year custodial term with four years of parole ineligibility on the latter offense, and a concurrent five-year custodial term on the former. As previously noted, we affirmed defendant's convictions and sentence on direct appeal, and the Supreme Court denied certification. Two months later, defendant filed his PCR petition, which the court denied. Defendant appealed.
In this appeal defendant argues the following points:
I. THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING, A NEW TRIAL, OR DISMISSAL OF THE INDICTMENT.
A. THE DEFENDANT'S RIGHT TO A UNANIMOUS VERDICT WAS INFRINGED.
B. THE TRIAL COURT IMPROPERLY CONDUCTED COMMUNICATIONS WITH THE JURY OFF THE RECORD, THEREBY DEPRIVING THE DEFENDANT OF DUE PROCESS OF LAW.
C. THE DEFENDANT WAS SUBJECTED TO SELECTIVE PROSECUTION.
D. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
E. DEFENDANT'S RIGHT TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, WHICH WAS NOT REFLECTED IN THE RECORD.
F. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
G. THE DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN HIS PETITION FOR POST-CONVICTION RELIEF.
To prevail on a PCR petition, "[a] petitioner must establish the right to [post-conviction] relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the petitioner must set forth 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 petitioner must do more than make unsupported assertions. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant has failed to carry his burden. He has not provided the court with specific facts to establish that his first two arguments - an infringement on his right to a unanimous verdict and the judge's improper communications with the jury off the record - have an adequate basis on which to make a decision in his favor.
Defendant claims that he was denied his right to a unanimous verdict because when the jury was polled, though two jurors were not in agreement with the verdict, the trial court nonetheless accepted the verdict. The certified trial transcript, which evidences the court polling the jury, demonstrates that the verdict was unanimous. And though defendant has not provided us with a videotape or other recording of the proceedings, the judge who denied defendant's PCR petition noted:
One of the issues that I had is that Mr. Vaughn raises the issue in a couple of different areas saying that the transcript doesn't match what happened in trial. And we went back and read the transcript and compared it to the electronic recording. And, I don't find any differences.
Defendant does not dispute that the transcript mirrors the electronic recording. Rather, he cites to an instance on the recording where the court was apparently discussing "some other case" and in "mid-conversation, it was in fact, cut off." However, this occurred after the jury left the courtroom and there is nothing inappropriate about not continuing to transcribe the judge's informal discussion with the attorneys about another case.
As to defendant's second argument, the trial judge apparently did have an off-the-record discussion with the jury. The PCR judge, in his written decision denying defendant's petition, stated:
The record does show that the trial judge had contact with the jury outside of the
courtroom. The judge had asked both sides permission to speak with the jury to see if they were going to order lunch. While this is certainly an ex parte communication between the judge and the jury, the nature of the communication is not one that would be deemed prejudicial or improper. Moreover, there is absolutely nothing in the record to substantiate the defendant's claims that any improper influence was exerted.
Because the PCR judge had not cited to the record in his opinion, and because we were uncertain about the basis for his conclusion, we returned the matter to him for clarification, with notice to all parties. The PCR judge responded:
The instance for which I am asked to clarify occurs on March 4, 2008 at approximately 9:02 a.m. to 9:13 a.m. This interaction is partially contained in the transcript of the same date, beginning on page 9, line 24. In the next seven lines, Judge Waters talks about ordering lunch for the jurors during their deliberations. After Judge Waters' short colloquy about ordering lunch, he leaves the bench for ten minutes. There is some mostly indiscernible conversation from Judge Waters from the hallway outside the courtroom concerning lunch. Thereafter, when the jury returns to the courtroom, he says on the record (page 10, lines 10-18) why he had them fill out the lunch order slips then.Following our receipt of that explanation, we provided the parties with an opportunity to supplement their briefs.
Our Supreme Court has cautioned that "[e]x parte communications between a trial judge and a jury are improper and must be avoided." State v. Morgan, 217 N.J. 1, 11 (2013). Nevertheless, "if the record affirmatively discloses 'that the communication had no tendency to influence the verdict,' the outcome should not be disturbed." Id. at 12 (quoting State v. Auld, 2 N.J. 426, 432 (1949)). Such is the case here.
This incident underscores why trial judges should not have "off-the-record" conversations with jurors during a trial. Not only is it improper, but it lends itself to precisely the type of allegations that have been made in this case. Nevertheless, the record, as supplemented, establishes that the trial judge did no more than have a conversation about lunch orders. When the jurors returned to the courtroom, the trial judge said to them:
I'm sorry. I thought someone had taken care of that this morning. . . . I thought someone had done that in the interim when I found out that you hadn't gotten your slips yet. The deal is that we have to order them by 10:30 to get them here by noon. So, that's why I asked you to fill them out now.
The supplemented record establishes that when the court spoke with the jurors off the record, he did so only to assure that they would have lunch at lunch time. Defendant has presented no evidence that anything else occurred. Under those circumstances, the PCR judge did not err by rejecting both defendant's argument and his request for a hearing.
We next address defendant's arguments that he was denied ineffective assistance of counsel. To prove ineffective assistance of counsel, a defendant must demonstrate "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).
Whether a hearing on an ineffective-assistance-of-counsel petition is necessary is a matter within the court's discretion. See Preciose, supra, 129 N.J. at 462; R. 3:22-10.
A defendant shall be entitled to an evidentiary hearing 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.Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Cronic- Fritz test. Preciose, supra, 129 N.J. at 463. A defendant must do more than make unsupported assertions to establish a prima facie ineffective-assistance claim; he or she must allege facts sufficient to demonstrate counsel's alleged substandard performance. Cummings, supra, 321 N.J. Super. at 170.
R. 3:22-10(b).
Defendant has failed to establish a prima facie case that his trial attorney was ineffective. Defendant contends his trial counsel was ineffective for four reasons: he "failed to object to the trial judge belittling a juror to change their verdict during polling of the jurors," "failed to object to the ex parte communications between the trial court and the jurors," "failed to produce relevant defense evidence that would have impeached State witnesses and exonerated the defendant," and failed "to move for a new trial."
To the extent that defendant's claims concerning the court belittling a juror and having an ex parte discussion with the jurors are different than those we have previously addressed, they nevertheless lack merit. There is no competent evidence in the record that the trial judge belittled a juror. And because, as we have stated, the court's off-the-record communication to the jurors about lunch did not prejudice defendant, he cannot demonstrate that his attorney's failure to object in any way influenced the outcome of his trial.
Defendant contends that his attorney failed to produce relevant photographs of his relatives that may have led the jury to conclude the undercover officer's identification of him was mistaken. Although defendant alluded to some photographs of relatives during oral argument on his PCR petition, he did not make the allegation in his petition. Further, he has not produced the photographs to demonstrate that any of the relatives so resembled him that the undercover narcotics officer who purchased drugs mistakenly identified him for someone else. His unsupported assertions are insufficient to establish a prima facie case that his attorney was ineffective. Cummings, supra, 321 N.J. Super. at 170. Similarly, defendant's argument that "the State knowingly used falsified evidence, including the report of [a detective]," is nothing more than a bald assertion devoid of any factual support.
Defendant also alleges that his appellate counsel was ineffective for failing "to complete the record for the appeal." Defendant is apparently referring to the trial judge's alleged berating of a juror, taking a verdict that was not unanimous, and having an ex parte conversation with the jury. Because defendant has failed to offer competent evidence to support the first two of those allegations, and because we have determined that the court's discussion with the jury was in no way prejudicial to defendant, appellate counsel could not have been ineffective for failing to raise those issues.
Defendant also argues that he was subjected to selective prosecution and that the trial court erred by denying his motion for a new trial. Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Lastly, defendant incorporates by reference "the arguments advanced in his petition for post-conviction relief." In his PCR petition, defendant listed the following grounds for relief:
1. Petitioner's due process rights to a fair trial by impartial jury was violated when jurors was exposed to prejudicial comments made by a potential juror.
2. The trial court deprived the petitioner of due process of law by the trial judge . . . acted beyond the scope of his judicial authority and/or in complete absence of all jurisdictions.
3. Government officials deprived petitioners rights of due process of law by acting in subjective malice and/or acted in violation of clearly established law.
4. Petitioner was deprived of his constitutional rights of an effective assistance of counsel by their conspiratorial actions with the State and government officials during trial.
5. Petitioner was deprived of his constitutional rights of effective assistance of counsel during trial.
6. Numerous and egregious instances of misconduct by prosecutors throughout the
trial process deprived petitioner of his due process rights to a fair trial.
7. Prosecutors violated petitioner's rights of due process of law by using false evidence and/or reports to secure a conviction.
8. Petitioner's rights to due process of the law was violated by prosecutors failed to comply with Brady discovery requirements.
9. Petitioner's due process rights was violated by prosecutors inflammatory comments, stating his opinions and beliefs to convince jurors of a guilty verdict, knowing the State's case was weak.
10. The state failed to provide beyond a reasonable doubt that the petitioner possessed cocaine and intends to distribute it.
11. Petitioner's constitutional rights was violated by the State depriving him of a fair and/or accurate record of the trial proceeding and omitted numerous prejudicial events that occurred in open court.
12. The petitioner's substantial rights was violated by State's witnesses erroneous exclusion of testimony on grounds of hearsay.
13. Exclusion of extrinsic evidence showing motive of State's witnesses caused an error which violated petitioner's substantial rights of a fair trial.
14. Trial court and/or judge erred in its determination of the existence of aggravating and additional factors.
15. The petitioner was deprived of his due process rights because jurors was swayed by trial judge unconstitutional actions to find
a guilty verdict after a non unanimous verdict was announced during a poll verdict.
16. The jury verdict was against the weight of the evidence.
17. Petitioner was deprived of his constitutional rights to an effective assistance of appellate counsel on his direct verdict.
18. Petitioner conviction should be set aside based on that there has been a fundamental miscarriage of justice.
Those grounds for relief include no argument. Parties are required to make an adequate argument by "[s]upporting legal argument with appropriate record reference" and "justify[ing] their positions by specific reference to legal authority." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Because the eighteen grounds for relief enumerated by defendant contain no discussion of the facts upon which they are premised, and no discussion of any legal authority, we cannot properly evaluate them to determine whether they have any merit. Consequently, we reject them as grounds for reversal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION