Opinion
DOCKET NO. A-0825-12T2
07-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PERCY LEE ADAMS, Defendant-Appellant.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1043. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1043.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Percy Lee Adams appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of two counts of possession of drugs (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1); two counts of possession of drugs with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and two counts of possession of drugs in a school zone with the intent to distribute, N.J.S.A. 2C:35-7, all third degree offenses. For purposes of sentencing, all the non-school zone counts were merged with the two school zone counts, for which the judge imposed two extended concurrent eight-year terms with four-year periods of parole ineligibility pursuant to both N.J.S.A. 2C:43-7(c) and N.J.S.A. 2C:43-6(f).
We reiterate the facts underlying these offenses as stated in our opinion affirming defendant's judgment of conviction:
[O]n June 10, 2005, New Brunswick Detective Mark Pappas was alone on routine patrol in an unmarked car and in plain clothes. Around 11:00 a.m., he arrived at the corner of Lee Avenue and Baldwin Street where he pulled to the curb to observe the area and read reports. While parked in his vehicle, Pappas saw defendant, whom he recognized,[] approach Harry's Newsstand, a business on Lee Avenue approximately 150 feet from where Pappas was parked. Defendant, a light-skinned black male with long dreadlocks and wearing a white T-shirt and blue jean shorts, briefly conversed with some people and then waved another man to join him. After a short time, defendant walked across the street to a parked red van and retrieved, from under the rear bumper, what appeared to be a black, magnetic hide-a-key box, commonly used to secure a drug stash.
Looking up and down the street, defendant opened the box and then placed the box back under the rear bumper. At this point, Pappas decided to move closer.
A Spanish male on a bicycle approached defendant and the two men continued along Lee Avenue towards Seaman Street. As Pappas drove past the two men, defendant turned around and began walking in the opposite direction, until he was out of Pappas' sight. Pappas then made a u-turn, parked behind the red van, and retrieved the hide-a-key box. He opened the box and discovered six packets of cocaine and one packet of heroin inside. The red van was parked within 1000 feet of Redshaw School. A check of its license plate revealed that the van did not belong to defendant.
Neither defendant nor the Spanish male were located at or near the scene and no arrests were made that day. About one month later, upon learning that police were looking for him, defendant voluntarily appeared at New Brunswick police headquarters.
[State v. Adams, No. A-5877-06 (App. Div. Jan. 5, 2009) (slip op. at 2-4).]
Following the Supreme Court's denial of his petition for certification, State v. Adams, 199 N.J. 132 (2009), defendant filed a timely PCR petition, in which he alleged trial counsel was ineffective for failing to call a witness, Ronnell Davis, who allegedly would have testified that defendant was not present at the scene of the crime as testified to by Officer Pappas. The PCR judge then conducted a two-day evidentiary hearing, during which defendant, Davis and defendant's trial counsel testified.
Defendant testified that he asked his attorney to interview Davis as a potential witness even though defendant knew Davis "ha[d] been involved in the law." Defendant admitted he himself had four prior indictable convictions and, because of his record, was advised by counsel not to testify.
Davis testified that on June 10, 2005, he was living about two houses away from Harry's Newsstand. At around 11:00 a.m., he was talking to an older man on a bike when he saw a police officer stop in front of Davis's house, approach a van parked across the street, grab something, get in his car and leave. Davis would have testified to these facts, but no one called him, though he remembers going to an attorney's office with defendant and remaining in the waiting room.
Davis said he had been arrested forty times and had six convictions for, among other things, drug offenses. At the time of defendant's trial in 2005, Davis was awaiting trial on an attempted murder charge and later pled guilty to aggravated assault. There was nothing particular about June 10, 2005, that made him vividly remember it, and he eventually admitted he did not remember the date that the incident happened or the time, except that it was around 11:00 a.m.
Trial counsel then testified. She acknowledged discussing with defendant on more than one occasion during trial preparation the fact that he wanted her to call Davis as a witness and she did not, nor did she send an investigator to speak to him. Trial counsel declined to do so because of her concern that Davis's record would be brought out; she was "afraid that the jury would look at [defendant's] association with this person as a negative." She believed that calling him would "have a negative effect on the trial."
Counsel further explained that she has "an ear to the street" and knew Davis's reputation and his criminal record, including the fact that Davis was at the time pending charges for attempted murder, which would be brought out during trial. She had other avenues of evidence that, in her opinion, presented a better chance of success at trial, such as impeaching the credibility of Officer Pappas, who was the primary witness. She testified she made the decision not to call Davis based on trial or legal strategy.
At the close of testimony, the PCR judge denied defendant's petition, concluding:
[Counsel] at the time of trial was an experienced trial attorney and previously tried at least [fifty] trials and the majority of her practice involved criminal defense on the superior and municipal court level. Based upon her testimony at this
hearing, it's evident to the court that [counsel's] decision was well thought out and was discussed with the defendant prior to taking any action. She testified at the hearing that although she had no independent recollection of the exact wording of the conversation between her and [defendant] about Mr. Davis's testimony, she does remember discussing the matter with the defendant before trying the case. There is nothing in the hearing testimony that supports the defendant's contention [counsel] was not functioning in a manner, as an attorney or that the trial was so [error-filled] that it prejudiced the defendant and therefore deprived the defendant of his sixth amendment rights. . . .
A review of the trial transcript reveals that [counsel] conducted a very aggressive cross and re-cross examination of the arresting officer in an attempt to impeach his credibility. Hindsight has been said to be twenty/twenty and it is no different in this case; [counsel] made a strategic decision as to the best way to proceed and took that road. There is no showing from the defendant's testimony or in his papers or in the trial transcript that convinces this Court, that had Mr. Davis testified, the jury would have probably returned a verdict other than that which was rendered. . . .
This appeal followed, in which defendant argues:
THE PCR COURT'S DENIAL OF THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT BASED ON THE CREDIBLE EVIDENCE IN THE RECORD, AND THEREFORE, THE ORDER DENYING PCR SHOULD BE VACATED.We find no merit in this contention.
Generally, PCR is a "'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). A petition for PCR essentially acts as a defendant's final opportunity to contest the "'fairness and reliability of a criminal verdict in our state system.'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a PCR hearing provides a final opportunity to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).
A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. Nash, supra, 212 N.J. at 541. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
In order to obtain relief for suffering the ineffective assistance of trial or appellate counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.
To satisfy the first factor, defendant is required to show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The critical inquiry is "'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" State v. Perry, 124 N.J. 128, 147 (1991) (quoting Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the 'the wide range of [reasonable] professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Therefore, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege 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).
Regarding the second Strickland/Fritz factor, defendant must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. 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." Ibid. In this context, it is insufficient for defendant to merely demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test[.]" Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.
On appeal, the standard of review of a denial of a PCR petition is whether the PCR court's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny of counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). Indeed, ineffective assistance of counsel is not proven by merely showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. State v. DiFrisco, 174 N.J. 195, 220 (2002). Quite the contrary, trial counsel's informed strategic decisions demand our heightened deference, State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002); State v. Savage, 120 N.J. 594, 617-18 (1990); Fritz, supra, 105 N.J. at 52, and "are virtually unchallengeable." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. As the Court in Arthur, supra, 184 N.J. at 320-21 stated:
Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential."
[(citations omitted).]
Here, experienced criminal trial counsel made an informed strategic decision to not call Davis as a witness, based on her knowledge of his extensive criminal record, but to focus instead on the lack of credibility of the State's principal witness, Officer Pappas. On that score, counsel aggressively cross-examined the arresting officer about his view of the incident, is failure to interview any of the people in front of Harry's Newsstand, including Davis, and about his procedures in completing the police reports, and in securing, labeling and safekeeping evidence. Counsel continued her aggressive attack on the State's case in her summation. There she focused extensively on the fact that there was more than reasonable doubt about defendant's guilt and that there was a lack of proof that defendant was actually present when the crime was committed.
From our review of the record, we are unable to discern how failing to use Davis as a witness was either a defective or outcome-determinative decision. On the contrary, we agree with the PCR judge, who found trial counsel's reasoning that Davis would have negatively impacted the case to be "well-reasoned under the circumstances." That decision was a matter of trial strategy, to which we owe extreme deference, made upon an informed basis and only after weighing and assessing the impact of the testimony of a witness with an extensive criminal record and facing charges of attempted murder.
Consequently, failing to satisfy either the performance or prejudice prong of the Strickland/Fritz test, defendant's PCR petition was properly denied.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION