Opinion
DOCKET NO. A-2669-12T3
01-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT RAYMOND CARMAN, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-11-727. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert Raymond Carman, Jr. appeals from an order entered October 1, 2012, denying his petition for post-conviction relief (PCR) without a hearing. Because defendant was entitled to a hearing on the issue of whether his trial counsel's failure to present an alibi defense amounted to ineffective assistance, we remand for the limited purpose of conducting such a hearing.
Defendant was convicted after trial of first-degree murder and sentenced to an extended term of thirty-five years to life subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and we affirmed. Carman, supra.
Defendant filed a timely pro se PCR petition alleging ineffective assistance of his trial counsel. After counsel was assigned, an amended petition and brief were filed by designated counsel alleging the following:
a: trial counsel was ineffective for not moving to have the fleece sweater and the latent print found at the victim's home submitted for further examination
b: trial counsel was ineffective when he failed to investigate the case and/or call witnesses who would have supported the defense theory of the case
c: trial counsel was ineffective when he failed to raise the apparent discrepancy regarding the Dunkin[,] Donuts camera clock settings
d: trial counsel was ineffective for failing to more comprehensively argue the Sands/Brunson issue, and appellate counsel was ineffective for failing to raise this on appeal
e: trial counsel was ineffective for failing to move for an adjournment of the trial based on the petitioner's health issues
f: cumulative errors by counsel amounted to ineffective assistance of counsel and the denial of a fair trial
The PCR judge, who did not try the case, heard oral argument and issued a written decision denying the petition without a hearing. On appeal, appellant provides the following arguments:
POINT ONE
MR. CARMAN IS ENTITLED TO A HEARING ON HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT A FULL DEFENSE.
POINT TWO
MR. CARMAN IS ENTITLED TO A HEARING [ON] A REMAND ON THE REST OF HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
We present the relevant facts of this case, drawn from our prior opinion.
The events leading up to the victim's death began on Saturday afternoon, October 11, 2003. The victim, twenty-three year old J.B., resided with her mother and her two adult sisters in Manville. J.B. first left the house that afternoon with her sister. She was wearing "black stretchy flare pants, a maroon button-down blouse, [and] white sneakers." She also carried a grey hooded sweatshirt from the GAP with her.
J.B.'s sister had to stop at a friend's house and agreed to give J.B. a lift up to that point. Upon arrival at the house, J.B.'s sister went inside and J.B. continued on her way on foot. She did not tell her sister where she was going.
At approximately 2:00 p.m., J.B. entered Pourman's Pub in Manville, where she saw Leonard Fortuna, age forty-three, defendant's half-brother. She and Fortuna ate and drank a few beers together and then went to another bar in Bound Brook with a few of Fortuna's friends. At approximately 4:30 p.m., after drinking and shooting pool in Bound Brook, the group decided to buy a six-pack of beer and go down to the local river so they could go "four wheeling" with their trucks. Fortuna and J.B. first went to his apartment so Fortuna could shower. While there, J.B. asked to borrow twenty dollars and Fortuna gave her the money. J.B. said the money was to pay her phone bill.
When they left the apartment, Fortuna went to his bank to withdraw money and then stopped at a liquor store to get the six-pack of beer. Fortuna testified that J.B. did not accompany him but went off to meet her drug dealer, who lived near the liquor store. The record does not indicate whether J.B. acquired any drugs from this meeting. The two met again after running their errands and Fortuna drove them to the river
to join his group of friends. Matthew Covert and Robert Schwoerer, witnesses for the defense, both testified that approximately fifteen people were by the river that evening, "hanging out," "drinking," and "smoking a little weed." They both testified that they saw J.B. and Fortuna there and stated that J.B. was smoking crack. Covert observed that she appeared "shaky" and paranoid.
At around midnight, the group by the river had run low on beer, so J.B. and Fortuna, as well as one of Fortuna's friends, decided to return to Pourman's Pub. J.B.'s sister, J.B.'s childhood friend, Heather Erhard, and defendant, who was "Erhard's ex-boyfriend at the time" were also at the bar together. Defendant is six feet and four inches tall and weighed approximately 190 pounds at the time. J.B. went over to join her sister, Erhard and defendant while Fortuna remained at the front of the bar socializing. While sitting together, defendant grabbed J.B. and her sister's breasts in an apparent joking manner. Both women told him to stop and he complied.
After approximately an hour-and-a-half, Erhard "lost track" of J.B. and could not find her. She asked defendant where J.B. had gone. He responded that he gave J.B. $25 to buy him some crack cocaine and she had gone to see Douglas Stevens, a local drug dealer. Erhard remained at the bar until closing time at approximately 1:30 a.m., then left with J.B.'s sister. Erhard decided to walk to Stevens's house in order to find J.B. and asked Fortuna and defendant to meet her there in Fortuna's truck so they could all ride back to the river together. J.B.'s sister walked with Erhard part of the way but wanted to go home, so she did not follow when Erhard "broke off to the left" to go to Stevens's house.
Erhard walked into Stevens's house and proceeded to the second floor, where she found J.B. sitting in a room with Stevens and a few other people she did not know. She noticed $25, which she presumed was defendant's, laying on Stevens's table. Stevens was "cooking" crack, and Erhard asked if the drugs were "ready." J.B. replied that they were not, so Erhard went outside to wait for Fortuna and defendant to arrive. Upon their arrival moments later, Erhard relayed to defendant that he would have to wait for the drugs and then asked him if he simply wanted to get his $25 back and leave. Defendant told her that he did, so Erhard went back upstairs and took the money off the table and began to exit. Stevens became angry when he learned that the drugs were not for J.B. but for people he did not know, so he refused to give J.B. any drugs.
Erhard left the house and gave defendant his money back. J.B. followed her outside, moments later. Both J.B. and defendant were upset that the drug deal had fallen through. Erhard stated that she no longer wanted to go down to the river because she had work the next day, and she asked Fortuna to give her a ride home. She got into Fortuna's car, and they drove away, while J.B. and defendant walked away together.
Stevens testified that at some point later that evening, possibly at around 2:00 a.m., J.B. returned to his house alone, hoping to make a drug purchase. He turned her away again, and she left without an incident.
Eric Hallenbake, a bartender at Pourman's Pub, testified that he closed the bar on the evening of October 12, 2003, and as he was driving home with a co-worker, he
saw J.B. and defendant together on the street near a pay phone. It was approximately 2:45 a.m.
J.B.'s sister testified that she knew J.B. returned home at approximately 3:30 a.m. that night because she saw J.B.'s bedroom light was on and heard her in there. J.B. apparently stopped home to change because the maroon blouse and black pants she had worn earlier that day were in the room, but her favorite bright pink pants and the GAP sweatshirt were missing.
Surveillance recordings from a Dunkin' Donuts located on Main Street in Manville from the night of October 12 show J.B. and a man believed to be defendant in the parking lot from 4:11 a.m. to 4:14 a.m. J.B. was wearing the GAP sweatshirt and her pink pants.
Russell Hash, a night manager at the Quick Chek on Main Street in Manville testified that J.B. and a male companion he did not know came to the store at around 3:30 a.m. He stated that he knew J.B. from school and spoke to her outside of the store while the man went inside. J.B. and the unknown individual left together, but Hash testified that J.B. returned by herself at approximately 4:30 a.m. to make a phone call. Paul Huscha, who was also working at the Quick Chek that night, testified that J.B. came into the store at approximately 4:30 a.m. and asked him for change so she could make a phone call. He testified that she was alone.
At around that same time, between 4:00 a.m. and 5:00 a.m., Humberto Grisales, a newspaper deliveryman who knew J.B., saw her at the phone booth. Grisales testified that he had a brief conversation with J.B. and noticed that she was accompanied by a man he had seen before but did not personally know.
He stated that this individual was approximately five feet and five inches tall, but he admitted that it was difficult to tell because the man was sitting down at the time. Grisales further stated that he was "not very good" at identifying and remembering people.
Ar-Rasheed Brisko, a drug dealer residing in Plainfield, knew J.B. through Douglas Stevens. He testified that J.B. had called him numerous times that day in an attempt to purchase cocaine. Brisko said that he received his last phone call from J.B. at approximately 4:30 a.m., when he emphatically refused to sell her drugs because he did not want to risk being arrested while he transported cocaine from Plainfield to Manville.
Richard Presser, a resident of Manville, who lived near the river along the train tracks, also testified for the defense. He stated that he could often hear people congregating near the river in the woods to drink alcohol and in the early morning of October 12, 2003, he heard "three sets of voices [arguing] . . . . Two seemed to be female, one was a male." Presser distinctly heard a female voice say "You can't do that." The argument lasted between five and ten minutes. Presser eventually got up to investigate but he did not see anyone when he went down to the railroad tracks.
Just before daybreak on the morning of October 12, 2003, the engineer of a freight train traveling through Manville noticed what he thought was a body on [the] tracks. He applied the full service brakes, but, nonetheless, the train struck the individual who was later identified as J.B. At approximately 6:30 a.m., the Manville Police Department received a call from the
railroad's dispatch reporting that a pedestrian had been struck by a train.
Upon investigation, the police found J.B.'s lower torso, which had been severed at the waist. The lower portion of the body was nude except for a blue sock on the right foot. The matching sock was found fifteen to twenty feet away. The police found J.B.'s pink pants, turned inside out, about five feet away from the lower portion of the body. The upper portion of J.B.'s torso was underneath the train. The torso was missing its right forearm, which the police found a few feet away. The middle finger of the right hand was missing.
The police also found a cell phone, which they later identified as J.B.'s, on the ground near the tracks. There was a trail of blood from the cell phone's location to J.B.'s body under the train. The police also found a beam of wood, approximately the size of a four-by-four, near the tracks. It was stained with blood. Subsequent analysis revealed that the blood was J.B.'s.
Between 6:00 a.m. and 8:00 a.m., Patrick Williams, a resident of Manville and an acquaintance of defendant, was driving through town when he saw a water main break on a road near the location of J.B.'s body on the railroad tracks. Williams observed that there were several police vehicles parked outside a recreation building down the road. The police had assembled there to investigate J.B.'s death. Williams drove in that direction in order to inform the officers about the water main break. As he approached, one of the officers asked him to stay clear of the area because a body had been found by the railroad tracks. Williams told the officer about the water main break and drove away.
Williams passed defendant, who was walking down the street, and defendant flagged him down. Williams observed that defendant was wearing "jeans and a dark shirt, and . . . some type of work boot." He did not observe any blood on defendant's clothing. Defendant asked Williams what was "going on down on the railroad tracks" and Williams responded that he did not know. Williams thought defendant's inquiry was very "odd" because "there is no way you can see what's going on on the railroad tracks" from where defendant was standing. Williams explained that there were "two blocks, houses, tons of vegetations on both sides of the bridge, and then maybe a thirty-foot incline down to the railroad tracks themselves" from defendant's vantage point. Williams then drove back to the recreation center and told the police what defendant had just asked him.
Later that day, at approximately 8:05 p.m., the police sought a search warrant for defendant's home and person from Judge Rosemarie R. Williams. In the warrant application, the police stated that J.B. was last seen with defendant and also noted that defendant had "pestered" J.B. and her sister at Pourman's Pub by "rubbing their breasts . . . repeatedly notwithstanding their protests." The warrant application stated that defendant was a registered sex offender in Bridgewater Township and had been found guilty of aggravated assault and criminal sexual contact. Judge Williams granted the search warrant and allowed the police to search defendant's person and property for "any visibly bloody clothing . . . as well as any towels or rags upon which blood may be detected." The warrant also allowed the police to photograph defendant for any signs of "recent/fresh injur[ies]" and to take fingernail scrapings.
The police executed the warrant at approximately 9:30 p.m. Police examined and photographed defendant's body and observed that his skin was a bright pink and that he had recent abrasions on his upper back, chest, and stomach. The police also confiscated defendant's work boots, which had blood on the soles. Subsequent testing revealed that the blood was J.B.'s.
An autopsy performed on J.B.'s body on October 13, 2003, revealed that the manner of death was homicide and that the cause of death was multiple blunt traumatic injuries, dismemberment and traumatic amputation. J.B.'s lower jaw was fractured, and there were tears inside her lip and mouth. Her nose and left cheekbone were also broken. There were abrasions, scrapes and lacerations on her face.
The injuries to J.B.'s face and neck were inflicted pre-mortem, while the victim was still alive, and were consistent with being struck and beaten with a wooden board. Some of the injuries, such as a large skull fracture, may have been caused by being struck by the train. There were abrasions and bruising on J.B.'s arms and knuckles, consistent with defensive wounds. There were no definite post-mortem injuries. Toxicology testing revealed cocaine in J.B.'s system.
On October 21, 2003, the police sought and were granted another search warrant "for the premises and person" of the defendant from Judge Edward M. Coleman. This warrant allowed the police to search defendant's home for clothing that defendant and J.B. wore the night of her death. Judge Coleman also executed an arrest warrant for defendant for J.B.'s murder. Defendant was arrested later that day.
[Carman, supra, slip op. at 1-12.]
Defendant first argues that the PCR court erred in denying his petition without an evidentiary hearing. Defendant claims that his trial counsel failed to call his mother, Joan Carman, who would have provided an alibi for him at the time J.B. was murdered.
Defendant submits a report indicating that a train passed by the location where J.B.'s body was found at approximately 6:05 a.m. on October 12, 2003. Subsequent interviews with the train's engineer and conductor indicate that they did not notice a body on the tracks when they passed by. Defendant argues that this is proof that J.B.'s body was placed on the tracks sometime after 6:05 a.m., but before the next train passed at 6:30 a.m.
In December 2004, defendant's mother told an investigator from the Public Defender's office that she checked on her son at "about" 6:00 a.m. on October 12, 2003 and found him sleeping in his bed. When the same investigator interviewed her in November 2011, she recalled checking on her son "either" at 5:30 a.m. or 6:00 a.m. and finding him asleep in his bed.
Defendant also claims that his trial counsel should have called Richard Minegar, who would have testified that he saw defendant at approximately 2:00 p.m. on October 12, 2003, walking from the woods near the train where J.B.'s body was found. Defendant claims this testimony would have explained how J.B.'s blood got on his boot.
Defendant also faults trial counsel for failing to call Roxanne Timmons, who could have testified that, when she spoke with defendant at approximately 6:30-7:00 p.m. on October 12, 2003, he expressed shock that J.B. was dead.
Defendant claims that trial counsel should have presented evidence to establish that the clock at Dunkin' Donuts was fourteen minutes fast. At trial, the State played a videotape from a surveillance camera for the jury showing two people, believed to be defendant and J.B., outside of the Manville Dunkin' Donuts between 4:11 and 4:14 a.m. A police report indicated that the surveillance camera ran fourteen minutes fast, meaning that defendant and J.B. were there between 3:57 and 4:00 a.m. Defendant attaches significance to this discrepancy because the Quick Check manager saw J.B. with an unidentified male around 4:00 a.m. A composite sketch of the unknown male did not resemble defendant.
For defendant to succeed in establishing a prima facie case that his trial counsel was ineffective, there must be "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
We focus on defendant's alibi argument, as the other claims of error do not demonstrate a reasonable likelihood of success on the merits even when viewed in the light most favorable to the defendant. See R. 3:22-10(b).
Recently, our Supreme Court held that "[f]ailure to investigate an alibi defense is a serious deficiency that can result in the reversal of a conviction." State v. Porter, 216 N.J. 343, 353 (2013). In Porter, the defendant submitted an affidavit claiming he was with his girlfriend at the time the crimes he was charged with were committed. Id. at 350. In his certification, the defendant indicated that he informed his trial counsel that his girlfriend would testify and account for his whereabouts, but counsel rebuffed his suggestion. Ibid. The defendant submitted corroborating affidavits from the girlfriend and the victim's friend. Ibid. The trial court denied the PCR petition, holding that counsel's decision not to call the defendant or his girlfriend was a strategic decision, and even if they had testified, it would not have changed the result. Id. at 350-51.
The Court reversed, holding that the trial court erred in assessing the credibility of the defendant and his girlfriend based only on their affidavits and that an evidentiary hearing was warranted. Id. at 356. In referencing the alibi defense, the Court held that "few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the jury." Id. at 353 (quoting State v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977)).
In State v. Jones, 219 N.J. 298 (2014), the Court reaffirmed that principle, holding that when determining whether to conduct an evidentiary hearing on an ineffective assistance claim, our PCR courts "should view the facts in the light most favorable to the defendant," and conduct a hearing where the facts "are sufficient to demonstrate a reasonable likelihood of success on [a] PCR claim." Id. at 311. Jones also involved a claim that the defendant's trial counsel failed to pursue an alibi defense. The Court held that "[i]n order to resolve the issue, the PCR court should have heard from the witnesses, including trial counsel, whose reason for not ensuring the testimony of an apparent alibi and corroborative witness is unexplained on the record as it presently stands." Id. at 314.
This does not appear to be a case where trial counsel failed to conduct a thorough pre-trial investigation, a failing which may render a lawyer's performance deficient. State v. Chew, 179 N.J. 186, 217 (2004). Rather, it is clear that trial counsel investigated and was aware of the potential alibi defense because the interview with defendant's mother was conducted by an investigator employed by the Public Defender. Therefore, it appears that trial counsel knew of the potential alibi defense and made a decision not to pursue it.
The State suggests that trial counsel made a strategic decision not to call defendant's mother as her bias would compromise her value as a witness. While this may be true, nothing in the record supports this theory. Defendant maintains that he urged trial counsel to call his mother but his counsel did not do so. While the PCR court addressed most of defendant's claims, it never mentioned, let alone decided, the alibi issue.
Even a suspicious or questionable affidavit supporting a PCR petition "must be tested for credibility and cannot be summarily rejected." State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008). We do not suggest that every claim that a lawyer failed to pursue an alibi defense will require a hearing. Here, the statement of defendant's mother, when considered together with the statements of the engineer and conductor of the 6:05 a.m. train, indicate that an alibi defense was a possibility. Defendant's claim that he urged trial counsel to pursue an alibi defense must be resolved at an evidentiary hearing, and his counsel's reasons for not pursuing such a defense must be examined.
At the hearing, trial counsel will be entitled to a strong presumption that he "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. If counsel thoroughly investigated the alibi defense, as the investigator's reports suggest, and determined as a matter of trial strategy not to pursue it, that decision is "virtually unchallengeable." State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).
Because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, defendant must demonstrate how this error "undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The order denying defendant's petition is reversed in part and the matter is remanded for a limited evidentiary hearing solely on the alibi claim, consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION