Opinion
DOCKET NO. A-4043-12T1
04-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AS'SHAKOOR WRIGHT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-0240. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant As'Shakoor Wright appeals from an order entered by the Law Division on December 7, 2012, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
A Union County grand jury charged defendant with purposeful/knowing murder, contrary to N.J.S.A. 2C:11-3a (count one); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count two); and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5c (count three). Defendant was tried before a jury.
At the trial, evidence was presented which established that on July 19, 2002, defendant went to a bar in Elizabeth with Derrick Paige ("Paige"), James Joyner ("Joyner") and Shamont Mercer ("Mercer"). Paige said he was not a member of the Bloods gang, but knew many of its members. According to Paige, defendant, Joyner and Mercer were Bloods gang members. In the bar, Paige got into a verbal dispute with Gavin Smith ("Smith"), who was wearing colors associated with a rival gang, called the Crips.
Defendant left the bar with Paige, Joyner and Mercer. Defendant told Paige that when Smith left the bar, they were going to beat him up. Paige testified that he saw Mercer hand defendant a handgun. Smith left the bar and started to walk up the street. Defendant followed him. Paige, Joyner and Mercer got into a car and drove around the block. Paige said he saw defendant shoot Smith, after which, defendant got into the car and the group drove away. Smith was later pronounced dead. A week later, defendant told Paige he shot Smith when Smith tried to run.
The medical examiner testified that Smith had been struck with seven bullets, one of which entered his chest and caused fatal damage to his heart. A detective with the Union County Police Department testified that he examined the bullets, bullet fragments and casings found at the scene. All of the casings, four of the bullets, and one bullet fragment had been fired from the same weapon.
Defendant was arrested about a month after the shooting. He was informed of his Miranda rights. When told he had been arrested for Smith's murder, defendant laughed and said "this is crazy." He stated, however, that they wanted to "beat the kid up" but then the shooting began. He claimed that Joyner shot Smith when he was in front of the car in which Paige, Joyner and Mercer had been riding.
The jury found defendant not guilty of murder, as charged in count one, but guilty of reckless manslaughter, a lesser included offense. The jury also found defendant not guilty on counts two and three. The trial court sentenced defendant to an extended term of seventeen years imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction and sentence, and raised the following arguments:
POINT I: THE CHARGE ON THE LAW GIVEN TO THE JURY WAS CONFUSING AND MISLEADING AND REQUIRES REVERSAL.
A. THE LESSER INCLUDED OFFENSES OF MURDER SHOULD NOT HAVE BEEN CHARGED.
B. THE CHARGE ON AGGRAVATED ASSAULT WAS INCORRECT AND CONSTITUTES PLAIN ERROR.
C. THE CHARGE ON ACCOMPLICE LIABILITY WAS INCORRECT AND CONSTITUTES PLAIN ERROR.
D. THE MENTAL STATES SHOULD NOT HAVE BEEN GIVEN TO THE JURY SINCE NO OTHER LAW WAS GIVEN.
POINT II: THE JUDGE SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR ACQUITTAL OR A NEW TRIAL.
POINT III: THE JUROR'S FAILURE TO DISCLOSE THE TRUE NATURE OF HER EMPLOYMENT REQUIRES A NEW TRIAL.
POINT IV: THE SENTENCE IMPOSED WAS EXCESSIVE AND IMPROPER AND, AS SUCH, MUST BE VACATED.
In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Wright, No. A-6745-03 (App. Div. May 23, 2006). Defendant thereafter filed a petition for certification with the Supreme Court. The Court granted the petition "limited solely to the sentencing issue raised by defendant" and remanded the matter to the trial court for resentencing. State v. Wright, 190 N.J. 389 (2007).
On remand, the trial court again sentenced defendant to seventeen years of incarceration, subject to an 85% parole disqualifier as prescribed by NERA. Defendant appealed his sentence, and his appeal was heard on our excessive sentence calendar. We affirmed the sentence. State v. Wright, No. A-3399-08 (App. Div. July 27, 2010). The Supreme Court denied defendant's petition for certification. State v. Wright, 205 N.J. 79 (2011).
On February 23, 2011, defendant filed a pro se petition for PCR. The court appointed counsel to represent defendant, and counsel filed an amended petition, claiming that the trial court had denied defendant his right to a fair trial by an impartial jury, and that defendant had been denied the effective assistance of trial and appellate counsel.
On December 7, 2012, the PCR court heard argument on the petition. Thereafter, the court filed a written opinion in which it concluded that the petition was not procedurally barred by Rules 3:22-12(a)(1), 3:22-4 or 3:22-5. The court rejected defendant's contention that he had been denied a fair trial. The court also determined that defendant had not been denied the effective assistance of counsel. The court entered an order dated December 7, 2012, denying PCR. This appeal followed.
On appeal, defendant raises the following 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 FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE REMOVAL OF JUROR NO. 7 WHEN INFORMATION WAS LEARNED DURING THE COURSE OF THE TRIAL REGARDING THAT JUROR WHICH, HAD IT BEEN ELICITED DURING THE JURY SELECTION PROCESS, SHOULD HAVE RESULTED IN THE UTILIZATION OF A PEREMPTORY CHALLENGE TO REMOVE THE JUROR.
C. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT WHEN HE CONVINCED HIM TO PLEAD GUILTY TO AN INDICTABLE OFFENSE WHILE AWAITING TRIAL WITHOUT ADVISING HIM THE CONVICTION COULD SUBSEQUENTLY BE UTILIZED BY THE STATE TO SUPPORT THE IMPOSITION OF AN EXTENDED TERM IF HE WAS CONVICTED AT TRIAL.
D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO CALL A WITNESS WHOSE TESTIMONY WOULD HAVE SUPPORTED THE DEFENSE THAT THE DEFENDANT WAS NOT INVOLVED IN THE VICTIM'S HOMICIDE.
II.
We first consider defendant's contention that he was denied the effective assistance of trial counsel because his attorney failed to seek removal of a juror after the court was informed that the juror knew an assistant prosecutor in the county in which the case was being tried. He also argues that appellate counsel did not handle this issue appropriately.
Defendant's claim that he was denied the effective assistance of counsel as required by the Sixth Amendment to the United States Constitution is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
"Judicial scrutiny of counsel's performance must be highly deferential[,]" with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "[T]the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).
Furthermore, to demonstrate prejudice under the second Strickland prong, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Goodwin, 173 N.J. 583, 597 (2002) (quoting Fritz, supra, 105 N.J. at 52).
The following facts bear upon our decision on this contention. Jury selection began with the trial judge asking the jurors questions as a group, based on questions provided to all prospective jurors. The judge stated, "We now know the [p]rosecutor[']s team and defense team. Question one asks you, do you know either of those groups or members of their offices? If you know them raise your hands." The record does not indicate that any potential juror raised a hand. In addition, the judge asked, "Do you work in or do members of your family or friends work in any field of law enforcement?" It appears that no potential juror responded.
A prospective juror, later identified as Juror No. 7, was eventually called to the jury panel. The judge asked this juror whether he heard the questions. Juror No. 7 replied, "Yes." The judge asked whether the juror had any response to the questions, and Juror No. 7 said, "No."
The judge then questioned Juror No. 7 regarding his family and employment. When asked whether he had any friends or family members who were employed by a police department, he responded, "No." The judge asked if there was any reason he could not serve on the jury, and the juror responded, "No." The juror was later sworn as a member of the jury trying the case.
However, after the trial began, and one of the State's witnesses testified, the judge was advised that a member of the Union County Prosecutor's Office knew Juror No. 7. The judge was told that Juror No. 7's brother was a friend of an assistant prosecutor.
Juror No. 7 was brought before the judge, outside the presence of other members of the jury, and the following colloquy ensued:
[The judge]: I was advised that [an assistant prosecutor] might know you through your brother. Do you remember the name?
[Juror No. 7]: Yes.
[The judge]: Was he here today?
[Juror No. 7]: Yes. I believe he was sitting in the back when we left.
[The judge]: [D]o you know him personally or do you know him from your brother?
[Juror No. 7]: One of my brother's best friends.
[The judge]: Do you see him with any regularity?
[Juror No. 7]: Family functions, maybe.
[The judge]: Like [a] [b]aptism, or something?
[Juror No. 7]: Yeah.
[The judge]: Would the fact that he works in the same office as [the prosecutors on the present case] have any influence on you in this case, at all?
[Juror No. 7]: No.
[The judge]: Your brother is a lawyer, I recall?
[Juror No. 7]: Yes.
[The judge]: Does he do criminal, civil?
[Juror No. 7]: Criminal, I believe.
[The judge]: Was [he] ever a [p]rosecutor?
[Juror No. 7]: No.
[The judge]: Okay. And while this case is pending you can't discuss, with him, the law pertaining to this case or criminal law, in general. You understand?
[Juror No. 7]: Yes.
[The judge]: Further, you can't discuss what we talked about here, briefly, with the other members of the jury. You understand?
[Juror No. 7]: Yes.
The judge asked the attorneys whether they had any comments. they both replied, "No." The judge determined that Juror No. 7 could remain on the jury.
The PCR court found that "the trial court did not err in failing to question [Juror No. 7] as to why he did not previously disclose his acquaintanceship with [the assistant prosecutor]." The PCR court stated that, "[g]iven [the juror's] limited affiliation with [the assistant prosecutor] and his professed impartiality with regard to the Union County Prosecutor's Office, [defendant's] assertion that [the juror] was cloaked with the appearance of bias is unsubstantiated."
The PCR court also concluded that trial counsel's failure to seek removal of the juror did not amount to ineffective assistance of counsel. The court said trial counsel's decision not to seek the removal of the juror may have been based on his strategic consideration that "a juror whose brother is a criminal defense attorney may lean towards acquittal." The court determined that, even if counsel erred by failing to request the removal of the juror, defendant had not established that the juror's presence on the jury prejudiced his defense.
We are convinced that the record supports the PCR court's decision. Defendant failed to show that his attorney's handling of this issue fell outside "the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Furthermore, as the PCR court noted, defense counsel may have had sound strategic reasons to have the juror remain on the panel.
Moreover, defendant has not shown that he was prejudiced by counsel's alleged deficient handling of the situation. There is no indication that the judge would have removed the juror if defense counsel had sought the juror's removal. As noted, the juror informed the court that he could be fair and impartial, and the judge found that statement to be credible.
III.
Next, defendant argues that he was denied the effective assistance of counsel because his trial attorney convinced him to plead guilty to possession of a controlled dangerous substance ("CDS"), as charged in Indictment No. 02-11-4029, while he was awaiting trial in this matter. Defendant contends that his attorney failed to advise him that the conviction could be used to support the imposition of an extended term in this case, if he was convicted at trial.
Here, the PCR court noted that defendant had not substantiated his claim that his attorney failed to advise him that a guilty plea to the CDS offense would expose him to an extended term as a persistent offender under N.J.S.A. 2C:44-3a. Even so, the court assumed for purposes of its decision that counsel had not provided defendant with this advice but concluded that defendant would nevertheless have qualified as a persistent offender under the statute.
Defendant argues that if he had not pled guilty to the CDS charge, his prior record for purposes of extended term sentencing would have consisted of three indictable convictions, all of which resulted in probationary sentences. Defendant contends he would "barely" have qualified for an extended term in this case. He asserts that the fourth conviction may have "tipped the balance" in convincing the trial court to impose the extended term.
We are convinced that these arguments are entirely without merit. The PCR court correctly determined that defendant failed to show that he had been denied the effective assistance of counsel under the Strickland test. We note that, at sentencing, defense counsel stated that defendant had pled guilty to the CDS charge while awaiting trial so that he could begin serving that sentence while awaiting trial in this matter. Thus, defense counsel appears to have had strategic reasons for resolving that charge while this case was pending.
In any event, defendant did not establish that, assuming counsel's advice regarding the plea was deficient, he was prejudiced by the error. The PCR court correctly found that, even if defendant had not pled guilty to the CDS possession charge, he would still have been eligible for extended-term sentencing as a persistent offender under N.J.S.A. 2C:44-3a.
Defendant's claim that he would not have been sentenced to an extended term if he had not pled guilty to the CDS charge rests on pure speculation. Indeed, defendant's contention is completely undermined by the extent of his prior criminal record and the seriousness of the charges of which he has been convicted.
At sentencing in this case, the judge noted that defendant was convicted in 1998 of endangering the welfare of a child, and he was required to register under Megan's Law. The judge also noted that defendant was convicted in 1998 of possession of CDS with intent to distribute. In addition, as a juvenile, defendant had three violations of probation. He has had twenty seven adult arrests, resulting in nine disorderly persons convictions and four indictable convictions.
IV.
Defendant also argues that he was denied the effective assistance of counsel because his trial attorney failed to call a person we identify as M.P. as a witness at trial. Defendant claims this witness would have "severely undermined" the alternative theories advanced by the State, specifically, that defendant was either the shooter or an accomplice in Smith's shooting.
We reject defendant's contention that, if M.P. had been called to testify, her testimony would have raised reasonable doubt as to the theories under which the State tried this case. As the PCR court noted, even if M.P.'s testimony would have supported defendant's contention that he did not personally shoot Smith, her testimony would not disprove the State's accomplice theory. Thus, even if counsel erred by failing to call M.P., defendant failed to show that the result probably would have been different if she had testified.
V.
Defendant further argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. A hearing on a PCR petition is warranted when the defendant presents a prima facie case in support of PCR, the court determines that there are material issues of disputed fact that cannot be resolved by review of the existing record, and the court finds that an evidentiary hearing is necessary. R. 3:22-10(b). See also State v. Porter, 216 N.J. 343, 354-55 (2013).
As we have explained, defendant failed to present a prima facie case of ineffective assistance of counsel. Moreover, the existing record was sufficient to resolve defendant's claims. The PCR court correctly determined that an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).