Opinion
DOCKET NO. A-1316-12T3
10-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS JAY CAMPBELL, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 00-10-0649. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). PER CURIAM
Defendant Thomas J. Campbell, Jr. appeals from a July 6, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On April 12, 2003, a jury convicted defendant of first-degree murder of victim George Samuel Jackson, II, N.J.S.A. 2C:11-3a(1), -3a(2); first-degree attempted murder of victim Kim Elizabeth Love, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), -3a(2); second-degree aggravated assault of Love, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault of Love, N.J.S.A. 2C:12-1b(2); and two counts of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d. On June 13, 2003, the trial judge sentenced defendant to life imprisonment, with thirty years of parole ineligibility on the murder conviction, and to a consecutive twenty-year term, with seventeen years of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:4 3-7.2, on the attempted murder conviction. The trial court merged all other convictions into the counts for murder and attempted murder.
Defendant appealed his conviction and sentence. In a fifty-six page unpublished opinion, we affirmed the conviction, but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Campbell, No. A-6480-02 (App. Div. December 20, 2005). On remand, the judge imposed the same sentence. Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument Calendar pursuant to Rule 2:9-11, and affirmed defendant's sentence. Our Supreme Court denied certification. State v. Campbell, 196 N.J. 466 (2008).
Defendant filed for PCR, raising a host of issues both in the counseled and pro se briefs. Most relevant to this appeal, defendant alleged ineffective assistance of appellate counsel in failing to raise various jury selection issues on direct appeal. Defendant also alleged ineffective assistance of trial counsel for failing to call an alibi witness, despite the fact that he previously gave a statement claiming that he acted in self-defense. Following oral argument, the PCR judge denied the petition without an evidentiary hearing.
Defendant raises the following issues on appeal:
POINT I
THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING IN ORDER TO DETERMINE WHETHER PETITIONER'S TRIAL COUNSEL AND/OR APPELLATE COUNSEL WERE INEFFECTIVE
A. The Trial Court Failed To Address All Claims Raised By Petitioner
B. The Trial Court Erred In Failing To Hold An Evidentiary Hearing Regarding Petitioner's Claims Of Ineffective Assistance Of Appellate Counsel For Failing To Raise Multiple Errors Made During Jury Selection Process
1. Appellate Counsel Failed To Raise Multiple Jury Selection Errors Committed by The Trial Court That Were In Direct Violation Of The Supreme
Court's Directives In State V. Deatore, 70 N.J. 100 (1967) [and] State v. Fortin, 178 N.J. 540 (2004)
2. Appellate Counsel Failed To Raise Additional Jury
Selection Errors Committed By The Trial Court Before The Appellate Court
C. The Trial Court Erred In Failing to Hold An Evidentiary Hearing Regarding Petitioner's Alibi Witness
We begin with a review of the well-established legal principles that guide our analysis. In order to establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two-prong test articulated 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). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . 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 defendant must then show that counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, the defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction." Id. at 58.
This standard applies as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Nevertheless, an appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983); Gaither, supra, 306 N.J. Super. at 515-16. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.
With those principles in mind, we first turn to defendant's argument that his appellate counsel was ineffective for failing to raise various errors committed by the trial judge during jury selection. Specifically, defendant contends that the trial court erred in not excusing jurors K.S., A.S., and B.G. for cause because they knew potential witnesses in the case. Relying on Deatore, supra, 70 N.J. at 106, defendant argues that it was "obvious" that the trial court was obliged to excuse these jurors and, as a result, the defense had to use otherwise available peremptory challenges to excuse K.S. and A.S.
We use initials in place of the jurors' names to protect their privacy. We also note that while PCR counsel named additional jurors in his initial brief, the argument has been narrowed in counsel's reply and supplemental letter briefs to focus on these three jurors.
"Trial courts possess considerable discretion in determining the qualifications of prospective jurors." State v. DiFrisco, 137 N.J. 434, 459 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (citations omitted).
Trial courts conducting voir dire are best able to evaluate the credibility and sincerity of a prospective juror in a way that the record will never allow. For that reason, trial courts are granted broad discretion to assess the qualifications of jurors, and the exercise of that discretion will ordinarily not be disturbed on appeal.
[Fortin, supra, 178 N.J. at 629 (internal quotation marks and citations omitted).]
Defendant places substantial reliance on Deatore, supra, 70 N.J. at 105-06, where the Court indicated that once it is disclosed by a juror that he or she is acquainted with one of the victims, it is the duty of the trial judge to himself explore, or allow counsel to explore, with the juror the nature and extent of the acquaintance with the victim. Further, if such inquiry reveals a close relationship, it is not enough for that juror to disclaim any partiality. Ibid.
Subsequently, the Court has noted that "[t]o remove a juror for cause, the challenging party must demonstrate that the juror's views would prevent or substantially impair the performance of that juror's duties in accordance with the court's instructions and the juror's oath." DiFrisco, supra, 137 N.J. at 469 (citation omitted). "[F]or the forced expenditure of a peremptory challenge to constitute reversible error . . . , a defendant must demonstrate that a juror who was partial sat as a result of the defendant's exhaustion of peremptories." Id. at 470.
To prove such error a defendant must show (l) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.
[Id. at 471].
In the present case the record fails to support defendant's argument. During jury selection, K.S. indicated that she was familiar with Gerald Feigin, the Gloucester County Medical Examiner. When questioned as to the extent of this familiarity, K.S. indicated:
THE COURT: How do you know him?Defendant did not ask to have the juror dismissed for cause, but later exercised a peremptory challenge to excuse her.
K.S.: I sing in operas with him.
THE COURT: You sing in operas with him?
K.S.: Yeah, he is a tenor. I don't really know him that well. I just know who he is.
THE COURT: Would that relationship interfere with your ability to be fair and impartial?
K.S.: I can't imagine that it would.
THE COURT: Would you tend to give his testimony more credence than the testimony of anybody else?
K.S.: No.
THE COURT: So when you say you sing, you are in the same opera company with him but you don't really know him?
K.S.: Yeah, he sings in the chorus and I usually have the leads.
THE COURT: Okay.
K.S.: I know him, but I really don't know much about him.
THE COURT: Okay. So you don't socialize with him?
[K.S.]: I do not.
[THE COURT]: Okay. So you know of him more than you know him?
K.S.: Exactly.
A.S. worked as an elementary school physical education teacher. During jury voir dire, the following exchange took place:
[DEFENSE COUNSEL]: Your Honor, before she is excused, I just want to ask you if she knows Ms. Love?Over defense objection, the trial judge declined to excuse A.S. for cause, noting that Love was a common surname in the community, and that A.S. "didn't know if they were related in any fashion." The defense subsequently exercised a peremptory challenge to excuse the potential juror.
THE COURT: Do you know Jacqueline Love?
A.S.: I know of her and I had some of her children. I don't know to what extent or what side of the family. I don't know the lineage I guess is what I am trying to say.
THE COURT: Would that [a]ffect your ability to be fair and impartial?
A.S.: Other than I do know the Love's? I have had three of their little children.
THE COURT: But you don't know if they are related to these folks at all?
A.S.: That I don't know other than (indiscernible) and I have be[e]n here since 1985.
THE COURT: Okay.
B.G. was the only one of these three potential jurors to actually serve on the jury. During jury selection B.G. advised that she knew Robert Best, a sergeant with the Gloucester County Prosecutor's Office whose name was read to the jury as being a potential witness in the case. The following colloquy ensued:
THE COURT: You know him?
B.G.: Yes, I went to high school with him and he's a previous neighbor.
THE COURT: Okay. Would that relationship interfere with your ability to be fair and impartial?
B.G.: Hopefully not.
THE COURT: Would you tend to give more credence to his testimony as a Police Officer than anyone else?
B.G: No.
THE COURT: Thank you, ma'am.
Defendant did not seek to examine B.G. further or to have her excused for cause. Nor did defendant exercise a peremptory challenge to dismiss her, despite the fact that he still had peremptory challenges available. According to the trial transcripts with which we have been provided, Sgt. Best was not called as a witness. We are unable to discern from the record whether B.G. ultimately served as a deliberating juror.
We agree with defendant that the PCR judge's findings could have been more detailed. Nonetheless, the record, when viewed as a whole, demonstrates that the trial judge painstakingly endeavored to seat a fair and impartial jury. The court excused some sixty-eight prospective jurors for cause. When a potential juror expressed some possible familiarity with a witness, or, in A.S.'s case, a victim or family member, the judge explored the nature and extent of that relationship in further detail. With respect to K.S. and A.S., the "close relationship" proscribed in Deatore simply did not exist, and we find no reversible error in the trial judge's exercise of discretion not to excuse them for cause. Regarding B.G., defendant expressed no concern following the court's questioning of her, and as noted, did not challenge her or seek to have her removed for cause. The trial judge even afforded the parties an additional peremptory challenge, yet defendant did not exercise one of his remaining peremptory challenges to remove her. Nor has defendant shown that Sgt. Best testified, or played any determinative role in the case. In short, defendant has failed to demonstrate that even if there was error in seating B.G. as a juror, that this led to an unjust result, or that appellate counsel was remiss in not raising this issue on appeal.
Defendant also argues that he was unfairly required to use a peremptory challenge to excuse prospective juror H.M., who had expressed some difficulty hearing the judge during the jury selection process. We find no merit in this contention. The court questioned H.M. extensively, and she expressed an ability and willingness to serve, assuring the court that she would raise her hand if at any time she was unable to hear the judge or any witness. Satisfied with H.M.'s responses, the judge appropriately found her qualified to serve.
Finally, defendant argues that the PCR court erred in failing to hold an evidentiary hearing regarding his purported alibi witness. The PCR judge determined:
As for the alibi witness, the [] allegations and the proofs at trial, as indicated in the facts in the Appellate Division [o]pinion, indicated that the incident occurred - - the stabbing occurred somewhere near 11:30 PM.
The witness[]' Affidavit indicates at Paragraph 5, "I waited for him at my home to arrive for dinner, but he never showed. I was not feeling well, so I laid down for a while, and while lying down . . . I received a page on my pager with a message from Jay,". . . "stating he was on his way over to my house." And, Jay is the defendant, or what she calls the defendant.
"I saw him park his car while looking from the front window of my house, and that was approximately 12:15 AM on Wednesday, January 12th." So, obviously, the Court knows the proximity of West Deptford to 295 to Delaware. I don't see where that provides an alibi. And, secondly, it injects some other things into the trial. [The prosecutor] pointed out some of them. One is that he has someone else at the same time that he's supposed to be angry at Ms.
Love; two, [] that he indicated in the statement that was allowed in, that it was self-defense, and expressed remorse to a relative or someone who was taking him on the date that he turned himself in, which, certainly, could be used by the State against him in - - and certainly not help him in any way, and likely harm him.
The Affidavit states that [defense counsel] did talk to that witness. So, it's not as if he didn't even talk to the person. He certainly did. He's an experienced trial attorney. . . .
So, certainly, he talked to her. It wasn't a complicated issue where he had to sit down and have hours of discussion, he said he talked to her. She said he got there at 12:15, I think anyone with any common sense would note the issue with that and the benefit certainly wouldn't outweigh the possible damage.
In any event, looking at it from the Strickland test, with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, I certainly find that it did. Even if someone feels differently, I don't find that there's any reasonable probability that the result of the proceedings would have been any different.
Since defendant gave a statement claiming he acted in self-defense, and was identified by one of the victims with whom he was intimately acquainted, the alibi defense had no support in the record whatever. Failure to investigate defenses and call witnesses that would have been entirely fruitless and unavailing is no lapse in representation. No evidentiary hearing was required because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION