Opinion
DOCKET NO. A-1560-12T3
02-18-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL S. BEHN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-09-1202. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael S. Behn appeals from an order denying his petition for post-conviction relief (PCR) following his retrial. We affirm.
I
We choose not to repeat the lengthy factual background and procedural history in this case, which is fully detailed in our March 7, 2005 published opinion ordering a new trial, see State v. Behn, 375 N.J. Super 409, certif. denied, 183 N.J. 591 (2005), and January 26, 2009 fifty-one page unpublished opinion affirming defendant's convictions after his second trial, see State v. Behn, No. A-5554-05 (App. Div. January 26, 2009), certif. denied, 199 N.J. 132 (2009). We only recite the facts and procedural history that are necessary for this decision.
On May 5, 1997, defendant was found guilty of murder, N.J.S.A. 2C:11-3a(1),(2), felony murder, N.J.S.A. 2C:11-3a(3), and armed robbery, N.J.S.A. 2C:15-1, but the jury was deadlocked on whether defendant had committed the murder by his own conduct. Behn, supra, 375 N.J. Super at 414. Defendant's post-trial motions for judgment of acquittal, Rule 3:18-2, and for a new trial, Rule 3:20-1, were denied, and he was sentenced to life imprisonment with thirty years parole ineligibility for murder and a consecutive fifteen-year term subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for armed robbery. Behn, supra, 375 N.J. Super at 414. The felony murder conviction was merged into murder. Ibid. On appeal, we affirmed defendant's conviction with a minor adjustment to a statutory penalty. Ibid. (referring to State v. Behn, No. A-6805-96 (App. Div. Jan. 11, 2000). The Supreme Court denied defendant's petition for certification. State v. Behn, 164 N.J. 561 (2000).
Defendant subsequently filed a PCR petition, which was denied in 2003. Behn, supra, 375 N.J. Super at 414. On appeal of this decision, we granted relief based upon our ruling that newly discovered scientific techniques comparing ballistic fragments directly refuted the State's unchallenged expert testimony and warranted a new trial. Behn, supra, 375 N.J. Super at 433.
Although the defendant's application was entitled a PCR petition, it was considered a motion for a new trial based upon newly discovered evidence. Behn, supra, 375 N.J. Super at 414-15.
At his 2006 re-trial, defendant was convicted of capital murder and first-degree armed robbery. Behn, supra, No. A-5554-05, slip op. at 1. He was again sentenced to life imprisonment with a thirty-year period of parole ineligibility on the murder conviction, but the consecutive NERA term for armed robbery was for twelve years, instead of fifteen years. Ibid. Defendant appealed, challenging the trial court's voir dire of perspective jurors and denial of his motion for acquittal. On January 26, 2009, we affirmed his conviction. In doing so, we concluded,
based on a thorough review of the proofs that the evidence presented by the State's various witnesses together with the reasonable inferences that could have been drawn from that evidence, considered in a light most favorable to the State, was sufficient for a reasonable jury to find that the State proved all elements of robbery and felony murder beyond a reasonable doubt.
. . . .
The inescapable fact is that the jury verdict accepted the State's proofs and the credibility of its witnesses and did not believe the testimony of the defendant or his witnesses on the crucial issues giving rise to the guilty verdict.
[Behn, supra, No. A-5554-05, slip op. at 49-51.]
Following the Supreme Court's denial of defendant's petition for certification of this decision, State v. Behn, 199 N.J. 132 (2009), the present PCR petition was filed. Defendant contends ineffectiveness of trial or appellate counsel by failing to: 1) appeal the denial of an in limine motion to bar admission of speculative evidence; 2) object to the admission of the handcuffs found in defendant's office; 3) file a motion for a new trial, or appeal the verdict as against the weight of the evidence; 4) request a lesser included offense charge of receipt of stolen property, or appeal the court's failure to charge the lesser included offense sua sponte; 5) object to expert testimony about a "brass catcher"; and 6) object to defendant's assembly of the marlin rifle during cross-examination. Defendant also argued that these cumulative errors amounted to ineffective assistant of counsel.
In his October 18, 2012 bench decision, the PCR judge denied defendant's PCR and request for an evidentiary hearing, stating:
So I find that the defendant has not satisfied the two prongs in Strickland , he has not established counsel's representation during the proceeding fell below an objective standard of reasonableness.
I find that the [defendant] has made no showing that the result of the trial would have been any different but for the trial counsel's unprofessional errors, that he was prejudiced by virtue of those errors. The jury would've found the same verdict that they found regardless of what contentions are now being made in 20/20 hindsight by the defendant in combing through the transcripts and records of the trial in order to find some inconsequential areas to argue that his counsel was ineffective when the whole time the record is replete with efforts made by trial counsel to thwart and to counter and to oppose the theories of the [S]tate with respect to this circumstantial case.
Each contended decision of trial counsel was not error and, therefore, there is no cumulative error in the [defendant's] trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984))
Defendant appeals from the denial of his PCR petition, raising the following point for our consideration:
Point I
THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING
II
"Our standard of review is necessarily deferential" to the factual findings of a PCR court so long as the findings are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). However, we do "not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41 (citations omitted).
In order to establish a PCR claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. The test is whether "counsel's conduct fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. To prove this element, a defendant must demonstrate "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 699.
In addition to claims of ineffectiveness based on trial counsel's representation, a petitioner also may have a claim for ineffective assistance of appellate counsel when it is contended that errors existed at the trial level that could have been ascertained by appellate counsel's review of the record, but were never raised as issues on appeal. See State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on ineffective assistance of appellate counsel, it must be established that appellate counsel failed to raise an issue that would have constituted reversible error on direct appeal. See id. at 361. Appellate counsel will not be found ineffective if counsel's failure to appeal the issue could not have prejudiced the petitioner because the appellate court would have found, either, that no error had occurred or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State v. Harris, 181 N.J. 391, 499 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). "The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).
Here, the State's case was built on circumstantial evidence as there was no direct evidence who robbed, shot and killed Robert Rose at his South River coin dealer business on July 19, 1995. When the police investigation led to defendant, he told them he was "not so lucky you found me" when informed that there were two Michael Behns and he was the one they were seeking. A search warrant revealed that many of the coins seized by police from defendant's office matched coins missing from an inventory of Rose's store. After he was confronted with this information, defendant claimed for the first time that he purchased $40,000 in coins from Rose the day of the murder without obtaining a receipt to avoid sales taxes. Defendant's alleged alibi witness testified on behalf of the State that he was not with defendant the night of Rose's murder. Moreover, defendant owned the same type of rifle, a .22 caliber Marlin rifle, that the State's expert claimed could have been used to commit the murder. Eight months earlier, defendant reported to the Watchung police that his rifle was stolen from his car the day after it was purchased, however, there were no signs of forced entry into defendant's car. Defendant explained that the thieves entered his car through an open passenger-side vent window; however, a brick of bullets remained in the car after the alleged theft. Defendant also owned handcuffs that the State's expert opined could have been used on Rose's wrists, which showed marks of restraint before he was killed.
The State contended that evidence revealed that defendant visited local coin dealers and lied to them that he was about to inherit a substantial amount of money as a scheme to identify coin dealers who kept their valuable coins in insecure locations. Defendant testified at trial that he did not rob or murder Rose.
The thrust of most of defendant's PCR arguments involve the trial counsel's failure to object to the admission of evidence: a list of defendant's debts found in defendant's office, defendant's possession of handcuffs, expert testimony that the shooter may have attached a brass catcher to the murder weapon to collect spent shells, and defendant's assembly of the Marlin rifle. We conclude that defendant is procedurally barred from raising these issues in his PCR petition as to trial counsel.
Referred to at trial as a "debt sheet."
Rule 3:22-3 provides that PCR is not "a substitute for appeal from conviction . . . ." Additionally, Rule 3:22-4 bars a defendant from raising on PCR any issue that could have been raised on direct appeal. The Rule provides:
Any ground for relief not raised in the proceedings resulting in the conviction, . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the [PCR] hearing finds: (1) that the ground for relief not previously
asserted could not reasonably have been raised in any prior proceeding; or (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.Thus, Rules 3:22-3 and 3:22-4 require a defendant to pursue relief by direct appeal, and prohibit using PCR to assert a new claim that should have been raised on direct appeal. Echols, supra, 199 N.J. at 357 (citations omitted). Defendant did not challenge the admission of the disputed evidence on direct appeal, see State v. Behn, supra, No. A-5554-05, nor has he sought to explain how this case falls within any of the three exceptions set forth in Rule 3:22-4. Accordingly, his claims as to trial counsel are procedurally barred.
[R. 3:22-4(a).]
However, defendant also contends that appellate counsel was ineffective for failing to raise these evidentiary issues on appeal. We reject this argument and concur with the PCR judge that the contested evidence was properly admitted.
As for the "debt sheet," the judge stated:
In a case involving circumstantial evidence that is being used to reveal to the jury a pattern behavior . . . the finances of [defendant] became an important factual
issue in the case because [he] misrepresented his solvency and he misrepresented that solvency to multiple coin collectors at time before the Rose murder. He claimed he had a million [dollar] inheritance coming his way and admitted to seeking to deceive the IRS by laundering money through coin sales.We agree with this reasoning. Defendant made his financial condition an issue through his actions and testimony. It was appropriate for the jury to consider his lists of debt as a guide to assess the credibility of his testimony. See N.J.R.E. 607 (allowing introduction of extrinsic evidence to impair the credibility of a witness); see also N.J.R.E. 803(a)(1) (excluding from the hearsay rule prior inconsistent statements of a witness as long as the statement is available to the witness). Thus, the evidence was properly admitted, and there was no ineffective assistance for not objecting to the admissibility of this evidence.
. . .
. . . in the instant case, the [S]tate used evidence of [defendant]'s finances to refute conflicting testimony and to contradict the [defendant]'s testimony, referring to the defendant's own statement that he was evading taxes.
There is also no merit for contending that the handcuffs found in defendant's office should not have been admitted. The State's expert opined that the marks on Rose's wrist could be from handcuffs, but clearly stated he could not conclude the marks were from the handcuffs in question. The handcuffs were probative and relevant as circumstantial evidence linking defendant to the crime. See N.J.R.E. 401 (defining "relevant evidence" as that "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action"); State v. Koskovich, 168 N.J. 448, 480-82 (2001) (upholding admission into evidence gun magazines, violent song lyrics and a list of prices for crime-related items found in murder suspect's bedroom as probative to criminal motive and intent). The PCR judge correctly held counsel was not ineffective because the handcuffs were properly admitted.
With respect to the State's expert testimony concerning the brass catcher, the expert was merely explaining why there were no ejected shell casings at the crime scene. He stated that either the shooter picked up the casings or had attached a bag to the rifle to catch the casings. Defendant fails to establish that such an objection to this testimony would have been granted. We concur with the PCR judge's finding that this evidence was admissible, thus there is no merit to defendant's argument that trial counsel should have objected to this testimony.
Defendant contends that the State's cross examination requiring him to assemble a Marlin rifle before the jury was inadmissible. On this record, we do not find any error. Demonstrative evidence that sufficiently duplicates an original event and is material to the case is admissible as long as its probative value is not outweighed by undue prejudice, unfair surprise, undue consumption of trial time, or confusion of issues due to the introduction of collateral matters. See Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 14 (App. Div.), certif. denied, 177 N.J. 490, (2003); Balian v. Gen. Motors, 121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973); see also N.J.R.E. 403.
By testifying, defendant opened himself to be cross-examined by the State to substantiate its theory of defendant's guilt. We agree with the PCR judge that the demonstration showed defendant "was familiar with that weapon and could easily assemble it and . . . [transport it into Rose's] store without calling attention to it if it had been disassembled." The judge further correctly recognized that demonstration was not prejudicial to the defendant because "the [S]tate did not ask [defendant] to show how to aim it or how to shoot it." Accordingly, the demonstration resulted in admissible evidence and there was no ineffective assistance for not objecting to its presentation.
We now address defendant's argument that trial counsel was ineffective for not filing a motion for a new trial pursuant to Rule 3:20-1. A motion for a new trial is only granted when a trial judge sets aside a jury's verdict as "against the weight of the evidence," if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." See R. 3:20-1. Applying this standard, we do not conclude that trial counsel was ineffective for not filing such a motion.
This in turn precluded defendant from raising on appeal the issue of whether the jury verdict was against the weight of the evidence. R. 2:10-1.
In defendant's direct appeal, we upheld the trial judge's denial of defendant's Rule 3:18-2 motion for acquittal by viewing the evidence in a light most favorable to the State and concluding that all elements of each crime charged were proven beyond a reasonable doubt. Behn, supra, No. A-5554-05, slip op. at 49. Although the standard for granting the respective motions differs, we conclude that the trial court's assessment of the evidence in rejecting the acquittal motion would likewise support denial of a motion for a new trial. The trial judge stated:
The facts could go either way. If I sat on this jury, I don't know that I would come back with a verdict, with the verdict this jury did, but there were clear facts from which the jury could have believed and which in fact they did believe to find [defendant] guilty of this robbery and murder.Simply put, there was ample evidence that defendant had the motive, ability, and opportunity to murder and rob Rose. See State v. Franklin, 52 N.J. 386, 406 (1968) (circumstantial evidence alone may support a guilty verdict). We cannot conclude that the jury's verdict was against the weight of the evidence. We therefore perceive no manifest denial of justice.
Although there were . . . issues that [defense counsel] raised with regard to the witnesses, the State did a very fine job in putting together [its] case against [defendant], and the jury in fact accepted all the proofs against [defendant] including the rifle, including the question of whether he had the $40,000, including the question as to whether he told anybody that he was going to purchase these coins.
I mean there were questions that the State raised which the jury accepted with regard to this case which was clearly a circumstantial case which the jury found the defendant guilty of. So I have to deny your motion for acquittal.
Defendant next contends that because the State argued that he was in possession of Rose's coins without purchasing them, trial counsel was ineffective by not requesting a lesser-included charge and jury instruction on the receipt of stolen property. He also contends appellate counsel failed to argue on appeal that the trial judge should have given this charge sua sponte. These contentions are without merit.
With respect to trial counsel, these contentions are without merit because they could have been raised on direct appeal, but were not. See Echols, supra, 199 N.J. at 357; see also R. 3:22-4. Nor has defendant presented any reasons for justifying relief from being procedurally barred. See R. 3:22-4.
As for appellate counsel's failure to argue that the jury should have been instructed to consider the lesser charge of receipt of stolen property, defendant fails to establish a lawful basis for this charge. Where neither defendant, nor the State, requests a charge of a lesser-included offense, the charge must be given "only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)); see also State v. Garron, 177 N.J. 147, 180 (2003). If the facts clearly indicate that the jury could find the defendant guilty of the lesser offense and not guilty of the greater offense, the court must charge the lesser offense. State v. Thomas, 187 N.J. 119, 132 (2006); State v. Viera, 346 N.J. Super. 198, 211 (App. Div. 2001) (citing State v. Choice, 98 N.J. 295, 299 (1985)), certif. denied, 174 N.J. 38 (2002).
Here, there were no facts adduced at trial that suggested defendant could be not guilty of armed robbery and guilty of the lesser crime of receipt of stolen property. Defendant testified that he purchased the coins from Rose, and there was no other testimony suggesting he was merely in receipt of stolen property. His defense was that he purchased the coins and someone else robbed and murdered Rose. Given our conclusion that defendant's argument would have been unsuccessful, there is no ineffective assistance of counsel. See State v. Worlock, 117 N.J. 596, 625 (1990) (noting: "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.")
"Robbery has been defined as a theft during which a defendant: '(1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree.' N.J.S.A. 2C:15-1(a). On the other hand, one commits the offense of theft by receiving stolen property 'if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen.' . . . 'Receiving' means acquiring possession, control or title . . . of the property.' N.J.S.A. 2C:20-7(a)." State v. Maloney, 216 N.J. 91, 108 (2013).
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The remaining contention to address is the claim that appellate counsel was ineffective for failing to appeal in limine rulings that the State could present evidence and argue that: 1) defendant falsely reported his Marlin rifle was stolen but actually used it to murder Rose, and 2) defendant had transactions with other coin dealers to assess whether their lack of security made them more vulnerable to a robbery. We are not persuaded.
There was no counsel error because we perceive no basis for reversing the trial court's in limine decisions. Testimony concerning defendant's alleged stolen Marlin rifle and his visits to other local coin dealers were circumstantial evidence that was relevant and probative of defendant's possession of the possible murder weapon and his planning to commit the crime.
Lastly, since we have concluded every argument raised by defendant lacks merit, there can be no cumulative effect depriving defendant of a fair trial. See State v. Marshall, 123 N.J. 1, 169-70 (1991).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION