Opinion
DOCKET NO. A-2532-11T4
06-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAMAR ALFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2269.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Lamar Alford appeals from the trial court's September 23, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2007 conviction for first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) and other offenses. We affirm.
I.
We summarized the facts in our opinion affirming defendant's conviction on direct appeal:
On May 22, 2005, Salvador A. Martinez, known as Twin by some and Alex by others, was shot and killed. The victim was in an alley on Merriel Avenue in Camden at about 9:30 p.m. when two men dressed in dark clothing, one tall and one short, entered the alley and pushed the victim to the ground. Lillian Davis heard one of the men say, "don't move, just stay there," and the victim ceased his attempts to stand. She observed the men stand over the victim and rifle through his pockets. Then she saw the taller man run from the alley, and "[the shorter one] was getting ready to run, but he turned back around like . . . pulled [a gun] out and shot one time." Then the shorter assailant ran from the scene. Davis could not identify either man because, as she stated numerous times at trial, "I didn't see no faces."Neither defendant nor his co-defendant, McDaniels, testified or presented any witnesses at trial.
Carol Lofland, standing near the alley with Davis and a man known as Beans, saw the shorter man rifle through the victim's pockets and saw both men start to run. Lofland then saw the shorter man stop, turn, return to the victim, and fire one shot. Thia Kim, sitting in the park across from the alley, saw both men run from the alley, cross the street, run through the park, and across nearby railroad tracks. Kim testified that he saw the faces of both men and recognized both men. Kim recognized Alford because "I seen [him] around." He testified he recognized McDaniels as a person who hung around his middle school. Kim also stated he had seen McDaniels in the neighborhood but had not seen him with Alford. The victim was pronounced dead at the hospital.
Carol Lofland identified Alford, known on the street as Bling and by some as Blaze, as the taller of the men. She did not identify McDaniels as the shorter man. She, unlike Kim, gave inconsistent testimony about seeing McDaniels, known on the street as Sugar Hill, with Alford on a regular basis. Initially, she testified that she saw them together rarely. When confronted with her statement given about a month after the shooting in which she stated she saw them together often, she changed her testimony.
Jacob Eller testified he knew the victim and Alford because he was a drug user and had purchased drugs from both men on numerous occasions. He also recounted an encounter with defendants earlier on May 22, when he went to a street corner in Camden to buy drugs.
According to Eller, as he awaited his turn to purchase drugs, someone arrived in Alford's car. Eller heard the driver say to Alford, "you're not getting your money he owes you," and he heard Alford respond, "go get my gun, I'll get my f-----g money." Eller said someone obtained a gun, and gave it to Alford, who entered the passenger seat of his car and drove away. Eller also testified that Alford had an "associate," who he identified as McDaniels. He stated he had seen them together "a hundred times."
[State v. Alford, No. A-0804-07 (App. Div. Sept. 8, 2010) (slip op. at 3-5) (alterations in original), certif. denied, 205 N.J. 99 (2011).]
A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); robbery, N.J.S.A. 2C:15-1; conspiracy to commit murder and robbery, N.J.S.A. 2C:5-2, :11-3(a)(1), :15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); certain person not to possess a firearm, N.J.S.A. 2C:39-7; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). After merger, Judge Samuel D. Natal sentenced defendant to an aggregate term of life imprisonment with an eighty-five percent period of parole ineligibility, plus ten years, with a five-year period of parole ineligibility — the latter term imposed on the certain persons offense. A remand for resentencing did not alter the original sentence.
The certain persons charge was considered in a separate, bifurcated trial.
In his timely filed pro se petition for PCR, defendant asserted simply, and without amplification: "[i]neffective [a]ssistance of counsel[, p]rosecutor[ial m]isconduct[, j]udicial [m]isconduct." Appointed counsel filed a brief in support of the petition, and asserted:
B. Petitioner was denied his Constitutional Right to effective assistance of counsel by
the failure of trial counsel to present third party guilt.
C. Petitioner was denied his Constitutional Right to Effective Assistance of Counsel by the failure of trial counsel to effectively confront State's witnesses Thia Kim and Jacob Eller.
D. Petitioner was denied his Constitutional Right to Effective Assistance of Counsel due to the cumulative errors of counsel.
E. Additional Arguments:
1. Petitioner was denied the effective assistance of counsel by the failure of trial counsel to establish or present alibi witnesses.
2. All other issues presented in any prior or pro-se filings are repeated and incorporated.
Defendant's initial point, entitled "Ineffective Assistance of Counsel" presented a general statement of the law on PCR.
Defendant did not supplement the petition with a certification from defendant or any other witness. At the hearing on the petition before Judge Natal, counsel stated, "I've had an opportunity to conduct investigations in this matter, and I've had an opportunity to discuss the findings of those investigations with my client. And to that extent today, Your Honor, I am not going to be presenting any witnesses."
PCR counsel argued that trial counsel ineffectively cross-examined Eller, who came forward to incriminate defendant in November 2005, several months after the homicide. Eller was incarcerated at the time. He testified that he was motivated to cooperate by both a desire to achieve justice for the victim, who was a friend as well as one of his drug suppliers, and in hope of securing his release. Eller testified, however, that he received no favorable treatment. Camden County Prosecutor's Office Investigator John Greer, who interviewed Eller, admitted that Eller asked for help in securing his release, but Greer testified that he made no threats or promises to Eller to secure his statement.
PCR counsel argued that trial counsel was ineffective because he failed to elicit a statement by Eller, made on February 21, 2007, the day before he testified, that he lied in his prior statement. However, Eller's February 21, 2007, interview was not so straightforward.
In his February 21 recorded statement, Eller told Greer that he did not want to testify out of fear that he or family members would be killed in retaliation while Eller was incarcerated. Eller had just been arrested on outstanding warrants after an apparent period of release. When Greer reminded Eller that Eller had approached the police with information in 2005, and had given sworn statements, Eller asserted that he lied when he incriminated defendant, and if confronted with his prior statements, he would say he lied. However, Eller admitted later in the same interview that his prior statements were the truth and he would lie under oath at trial — denying his prior statements — only in order to protect his family.
The next day, Eller testified consistently with his November 2005 statement. Defense counsel vigorously cross-examined Eller, highlighting his significant record of prior convictions; his heavy long-term use of crack cocaine; and his hope of favorable treatment in 2005 in return for his cooperation. Trial counsel also elicited that after he was arrested on warrants, Eller might have told police that he would not testify. As trial counsel delved more deeply into Eller's February 21, 2007 interview, the prosecutor advised the court and counsel at side-bar that defense counsel risked eliciting Eller's statement that he feared defendant. Trial counsel then stated he would move on, and pursued a different line of questioning.
PCR counsel also argued that trial counsel was ineffective in cross-examining Kim because he did not elicit an alleged promise of a favorable plea agreement on charges pending against him. On direct examination, Kim admitted he was convicted for theft in April 2006, after entering a plea agreement. However, Kim denied his testimony against defendant was part of his plea agreement. Kim also testified that he faced new charges for possession of a weapon. However, he insisted he received no threats or promises regarding those charges, to secure his trial testimony.
On cross-examination, Kim admitted he was under supervision pursuant to Megan's Law. It was also established that he faced a violation of probation. Kim admitted he initially did not want to cooperate with the police, and he initially claimed he could not identify defendant. Kim explained that he was afraid. Counsel emphasized the significant exposure Kim faced on his pending charges; the fact that he was being prosecuted by the same office that was prosecuting defendant; and that a prosecutor's office investigator talked to Kim about testifying at trial "right after [he] had gotten locked up on new charges."
Investigator Greer admitted that he told Kim, in response to his initial reluctance to identify defendant, that he would be compelled by subpoena to testify before a grand jury, and would be arrested if he did not appear. Greer explained that Kim reportedly told other persons that he was able to identify the perpetrators. However, Greer denied that any threats or promises were made with respect to charges pending against Kim.
PCR counsel asked the court to consider documents showing that Kim entered into a plea agreement on Monday, March 12, 2007, four days after the trial concluded on March 8, 2007. Kim testified on February 27. PCR counsel argued that the subsequent plea was proof that Kim lied on the stand. He argued defendant's trial attorney was aware of Kim's plea agreement and was ineffective in failing to confront Kim with it.
The documents are not included in the record before us. Defendant's PCR appellate counsel states in his brief that the Kim documents were not included in the file transferred to him.
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PCR counsel also argued that trial counsel was ineffective in failing to establish the guilt of third parties. He argued that investigators received information that "there had been talk that an individual named 'Romulus' was responsible for the shooting." He also contended that investigators spoke to a witness who "had information . . . that someone named 'Ghostface' wanted to kill the victim."
PCR counsel argued that trial counsel failed to follow up on that information. However, defendant's trial attorney questioned Greer about the information received pertaining to "Ghostface," and Greer's interview of him. PCR counsel provided no competent evidence to substantiate the information received about "Ghostface" or "Romulus," let alone to support a claim that either one actually committed the crime.
Judge Natal denied the petition. He applied the well-settled two-prong test for asserting a post-conviction claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different).
The court was unpersuaded that trial counsel was ineffective in his cross-examination of Kim and Eller. Defendant provided no evidence that Kim had received a promise of favorable treatment, or entered into his 2007 plea agreement before he testified. The court also held that trial counsel's decision to avoid further questioning of Eller regarding his February 21, 2007, interview was a reasonable strategic trial decision.
Judge Natal also rejected the argument that trial counsel failed to establish a third party's guilt. He noted that defense counsel was allowed to elicit the information about "Ghostface" during cross-examination of Greer, thereby introducing the notion that another person may have committed the crime. Judge Natal noted that defendant provided no competent evidence in his petition that someone other than defendant committed the crime.
Finally, Judge Natal held that defendant's claim that his trial counsel failed to present alibi witnesses was unsupported by any competent evidence identifying those witnesses and presenting what they would have stated at trial. Judge Natal concluded that no evidentiary hearing was warranted.
This appeal followed. Defendant presents the following points for our consideration:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST A DECEPTION THAT THERE WAS NO PENDING PLEA BARGAIN BETWEEN THE STATE AND THIA KIM, AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE VIOLATED.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CROSS-EXAMINE JACOB ELLER ON HIS EXPECTATION OF FAVORABLE TREATMENT FROM THE STATE SATISFIED THE PRIMA FACIE STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT III
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED.
POINT IV
PURSUANT TO STATE V. RUE, 175 N.J. 1 (2002), AND STATE V. WEBSTER, 187 N.J. 254 (2006), DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A)
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE OF THIRD PARTY GUILT.
(B)
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE CUMULATIVE ERRORS OF TRIAL COUNSEL.
(C)
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ESTABLISH OR PRODUCE ALIBI WITNESSES.
(D)
POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE OF PROSECUTORIAL AND JUDICIAL MISCONDUCT.
II.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
Defendant essentially renews the arguments presented to the PCR court that trial counsel was ineffective because he did not pursue a third party's guilt, and did not effectively cross-examine Eller and Kim. We affirm substantially for the reasons set forth in Judge Natal's cogent and comprehensive oral opinion.
We add the following additional comments. Defendant argues that the PCR court erred in failing to conduct an evidentiary hearing. However, as we have noted, at the outset of oral argument, PCR counsel stated he did not seek to present any witnesses, and intended to rely only on the documentation provided with his brief. In any event, defendant failed to establish genuine issues of fact warranting a hearing. See R. 3:22-10(b), -10(e).
We also discern no support for the argument that trial counsel could have secured an instruction from the court barring Eller from stating that he feared retaliation from defendant, while securing his admission that he said he had lied when he incriminated defendant. Eller's statement that he lied was inextricably bound up with his fear of testifying. Under the doctrine of completeness, Eller's fear of retaliation against him or his family would have been admissible. See N.J.R.E. 106; State v. Lozada, 257 N.J. Super. 260, 270-71 (App. Div.), certif. denied, 130 N.J. 595 (1992).
Defendant also argues that Kim's plea agreement, reached soon after he testified, was itself circumstantial evidence that both Kim and Greer lied. Defendant thus contends he suffered a due process violation, even if not ineffective assistance of counsel. However, defendant did not present this argument to the trial court. Instead, he maintained his attorney knew that Kim had in fact reached an agreement with the State, and failed to confront Kim with this information.
We need not reach an argument that was not presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting generally that appellate courts will decline to hear issues "not properly presented to the trial court" unless the questions on appeal address the trial court's jurisdiction, or concern "matters of great public interest") (internal quotation marks and citation omitted).
In any event, we discern no merit to defendant's argument. We recognize information that Kim in fact received a promise of favorable treatment before he testified would have constituted exculpatory impeachment evidence. The State would have been obliged to disclose it as a matter of due process. See State v. Nash, 212 N.J. 518, 544 (2013). However, the simple timing of Kim's plea soon after defendant's trial is inadequate to support the inference that Kim reached an agreement before he testified. Defendant did not present competent evidence from anyone involved in Kim's plea, or any documents regarding Kim's case, that would support defendant's theory. Indeed, the record before us does not even include the documentation of Kim's plea.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION