Opinion
DOCKET NO. A-2752-13T1
12-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES COMER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0231. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
This matter returns to us after a remand for the purpose of an evidentiary hearing to explore claims of juror impropriety and whether defense counsel had knowledge of the alleged impropriety. See State v. Comer, No. A-1675-10 (App. Div. Oct. 23, 2012) (Comer III). Having considered the record from the evidentiary proceeding, we affirm the judge's order dated November 6, 2013, denying defendant's petition for post-conviction relief (PCR), motion for recusal, and motion to subpoena a juror.
In April 2000, defendant and his two co-defendants committed several armed robberies, one of which resulted in the death of a robbery victim. Following a two-day crime spree, defendant and his two co-defendants were arrested in the vehicle used during the armed robberies and murder. At trial, the jury convicted defendant of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:11-3; first-degree felony murder, N.J.S.A. 2C:11-3(a); first-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); five counts of third-degree weapons offenses, N.J.S.A. 2C:39-5(b); and four counts of second-degree weapons offenses, N.J.S.A. 2C:39-4(a).
The convictions were based on the testimony of defendant's co-defendant, who was separately indicted and agreed to testify at defendant's trial, eye-witness identifications from the three surviving robbery victims, and the arrest of the three defendants in the vehicle used to commit the armed robberies and murder. Also recovered from the vehicle were stolen items and one of the handguns used to commit the crimes.
At sentencing, the judge imposed a thirty-year term of imprisonment without parole for felony murder, three consecutive fifteen-year terms with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-degree armed robbery offenses, and concurrent four-year terms on the weapons offenses. The aggregate sentence imposed was seventy-five years with a sixty-eight-and-one-quarter year parole ineligibility. Defendant timely appealed, claiming: (1) unduly suggestive photo identifications; (2) a mistrial should have been granted as a result of a statement made during the testimony of Harrison; (3) prosecutorial misconduct; (4) reversible error caused by the court's failure to question the jurors about the nature of the problem with a juror who purportedly was not participating in deliberations; (5) error in the manner the court handled jury questions; and (6) imposition of an excessive sentence.
On appeal, we affirmed both the conviction and the sentence imposed. See State v. Comer, No. A-6307-03 (App. Div. Dec. 18, 2006) (Comer I). Defendant filed a petition for certification on the issues of unduly suggestive identifications, his co-defendant's testimony and the sentence imposed. The Court granted the petition, State v. Comer, 191 N.J. 315 (2007) (Comer II), and consolidated the appeal with the petition for certification filed by his second co-defendant. The Court affirmed defendant's conviction and sentence. State v. Adams, 194 N.J. 186 (2008).
Defendant filed a pro se petition for post-conviction relief on July 9, 2008. Defendant's then PCR counsel subsequently filed a supplemental formal brief in support of the petition. On May 6, 2009, defendant's PCR counsel filed a supplemental letter brief with the PCR court as well, seeking to call defendant's mother as a witness at a "plenary hearing and inquire of the impropriety of a juror known as [E.C.,] who worked with [defendant's mother] at K-Mart and knew [defendant] during trial." Defendant's PCR counsel further stated that "[t]he juror known as [E.C.] sat on the jury, however [she] spoke with a [s]heriff['s] [o]fficer about the case prior to trial. Thus, a hearing is requested to inquire of the impropriety of the [s]heriff [o]fficer and the juror and any discussions thereto."
Two documents were attached to defense counsel's letter brief: an investigation report dated December 12, 2008, conducted by Francis Reilly, who was hired to investigate defendant's mother, and an affidavit from defendant's mother dated March 11, 2009. The report stated Reilly investigated the juror impropriety matter through a telephone interview with defendant's mother. The report noted defendant's mother informed Reilly that she and E.C. were co-workers, and "according to [defendant's mother], she had discussed details of her son's arrest with [E.C.] prior to [E.C.] being empaneled on the jury." Reilly further reported, "[defendant's mother] [cannot] remember if she brought this to the attention of her son's trial attorney."
Defendant's mother's attached affidavit, filed three months after Reilly authored his investigation report, stated that she and E.C. worked together at K-Mart, where she was a unit pricing manager and E.C. worked in receiving. Defendant's mother certified she "vented to a few of [her] co-workers before [defendant's] trial started" and before E.C. was chosen as a juror. She also stated, "[t]here were never any pleasantries between [E.C.] and [her]." Defendant's mother certified that upon E.C. noticing her in the courthouse during trial, E.C. approached her, explained she informed one of the sheriff's officers of their acquaintance, and he "told her it was [okay] as long as she [didn't] discuss the case with [defendant's mother]." Defendant's mother further certified she brought this to the attention of defendant's then trial counsel and he stated "he would take care of it," but the next day defendant was found guilty. Defendant's mother concluded her certification by stating that she felt her son was not given a fair trial "because of the fact [E.C.] knew [her] and should have been removed from th[e] case[,] especially since [E.C.] was not fond of [her]."
On September 22, 2009, the PCR judge, who was also the trial judge, heard argument on defendant's PCR. Following oral argument, the judge denied defendant's PCR in its entirety. In a written opinion dated September 22, 2009, the judge held: (1) defendant's claims relating to his sentence were previously adjudicated on direct appeal and were barred pursuant to Rule 3:22-5; (2) other claims were procedurally barred under Rule 3:22-4; (3) defendant was not prejudiced by the joint trial with his co-defendant; (4) his co-defendant's post-conviction affidavit did not exonerate him of the murder; and (5) there was insufficient evidence of juror impropriety.
Regarding the finding of insufficient evidence of juror impropriety, the judge opined "[t]here [was] not adequate proof that an investigation or hearing [was] necessary to determine if there was impropriety by a juror, [s]heriff's officer, or [defendant's] trial counsel." The judge concluded there was nothing in the record to indicate any impropriety. He emphasized the inconsistencies between defendant's mother's certification, wherein she stated she spoke to defendant's trial counsel about the matter, and the investigation report, in which she purportedly told the investigator she could not remember whether she brought the issue to the attorney's attention. The judge additionally noted that E.C. never alerted the court that she was acquainted with defendant's mother. He further found it was unlikely that defendant's trial counsel, as "an experienced criminal defense attorney[,]" would have failed to present this information to the court.
On appeal, defendant raised the following arguments:
[POINT I]
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL['S] INEFFECTIVENESS. (PARTIALLY RAISED BELOW).
A. TRIAL COUNSEL FAILED TO PURSUE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE TRIED BEFORE AN IMPARTIAL JURY.
B. TRIAL COUNSEL FAILED TO PURSUE NEWLY DISCOVERED EVIDENCE, THAT THE STATE'S KEY WITNESS RECANTED HIS EXCULPATORY [SIC] TESTIMONY.
Defendant also raised the following points in his pro se supplemental brief:
[POINT I]
TRIAL COUNSEL [WAS] INEFFECTIVE FOR FAILURE TO INQUIRE WITH THE COURT FOR POTENTIAL JURY BIAS AND TAINT.
[POINT II]
PCR JUDGE ABUSED HIS DISCRETION WHEN [HE] DENIED APPELLANT'S PCR[,] THEREBY[] CREATING A MISCARRIAGE OF JUSTICE.
[POINT III]
PCR COUNSEL INADVERT[E]NTLY USED THE WRONG AFFIDAVIT . . . TO ESTABLISH A MOTION FOR NEWLY DISCOVERED EVIDENCE.
On appeal, we held that "[w]ith the exception of defendant's claim of juror impropriety, which we conclude warrants an evidentiary hearing, the remaining arguments advanced are without sufficient merit to warrant discussion in a written opinion." Comer III, supra, slip op. at 5; see also R. 2:11-3(e)(2). We reasoned the judge failed to view the facts in the light most favorable to defendant, as required under State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), when evaluating whether defendant presented a prima facie case for ineffective assistance of counsel. We concluded, had defendant's trial counsel been privy to information of potential juror impropriety, "and trial counsel failed to bring this information to the court's attention, such conduct may reflect trial counsel's ineffectiveness under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)[.]" Comer III, supra, slip op. at 10-11. We therefore reversed and remanded the judge's decision denying defendant's PCR in its entirety, holding the judge should have conducted "an evidentiary hearing to explore juror impropriety and what, if anything, defense counsel knew about this claim, and the impact, if any, E.C.'s presence on the jury may have had upon defendant's right to a fair trial." Id. at 11.
After the remand, defendant moved both to recuse the judge from presiding over the evidentiary hearing and to subpoena E.C. On October 11, 2013, the judge held an evidentiary hearing regarding defendant's claim of ineffective assistance of counsel for failing to raise the issue of possible juror impropriety. At the outset of the hearing, the judge denied defendant's motion for recusal. The judge then heard testimony from defendant's trial counsel, defendant's mother, and defendant as to the alleged juror impropriety and defendant's trial counsel's knowledge of it. At the hearing's conclusion, the judge held that defendant's trial counsel's testimony was credible and that he had no knowledge of juror impropriety. In conjunction with this ruling, the judge also held that the testimony of defendant and his mother concerning defendant's trial counsel's knowledge of juror impropriety lacked credibility. As such, the judge denied defendant's PCR petition in its entirety, as well as the motion to subpoena juror E.C. The judge entered an order dated November 6, 2013, memorializing his findings in writing. This appeal followed.
Defendant raises the following points in his brief:
POINT I
DEFENDANT'S MOTION FOR THE PCR COURT'S RECUSAL SHOULD HAVE BEEN GRANTED.
POINT II
THE PCR COURT'S DENIAL OF DEFENDANT'S REQUEST TO SUBPOENA TO PRESENT TESTIMONY OF THE JUROR E.C. VIOLATED THE APPELLATE DIVISION'S REMAND DIRECTIVE.
POINT III
THE COURT ERRED IN PRECLUDING DEFENDANT'S MOTHER FROM TESTIFYING AS TO WHAT THE JUROR SAID TO HER ABOUT THE DEFENDANT.
Defendant also raises the following points in his pro se supplemental brief:
POINT I
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE PCR COUNSEL WAS INEFFECTIVE.
A. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBPOENA THE EMPLOYMENT RECORDS OF DEFENDANT'S MOTHER . . . AND JUROR, [E.C.], TO SUPPORT JUROR IMPROPRIETY CLAIM.
Defendant first argues that his motion "for the PCR [c]ourt's recusal should have been granted." We disagree. Rule 1:12-2 governs motions to disqualify a judge presiding over a case.
Rule 1:12-2 provides that "[a]ny party, on motion made to the judge before trial . . . and stating the reasons therefor, may seek that judge's disqualification." We have held "[t]he decision to grant or deny the motion for disqualification rests entirely within the sound discretion of the trial judge." P.M. v. N.P., 441 N.J. Super. 127, 140 (App. Div. 2015) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990).
A judge need not "withdraw from a case upon a mere suggestion that he is disqualified 'unless the alleged cause of recusal is known by him to exist or is shown to be true in fact.'" Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001) (quoting Hundred E. Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986)). However, "[t]he challenged judge who hears the motion should clearly set forth the 'objective and subjective bases for the ultimate decision.'" Ibid. (quoting Magill, supra, 238 N.J. Super. at 65).
In denying defendant's motion for recusal, the judge opined,
This [c]ourt . . . determined that an evidentiary hearing wasn't necessary because the threshold prima facie case had not been met. The Appellate Division disagreed. . . .
The Appellate Division phrased it as essentially saying that the [c]ourt reached [] conclusion[s], . . . [but] those conclusions required an evidentiary hearing because credibility issues were legitimately raised.
The fact that the . . . Appellate Division determined that this [c]ourt was in error in that regard is not all to suggest that the [c]ourt is not . . . capable of making credibility determinations based upon testimony that the [c]ourt hasn't heard. Simply because the [c]ourt reached a conclusion based upon the papers doesn't mean it couldn't reach the same conclusion or a different conclusion after a hearing.
We are satisfied with the judge's reasoning and defer to his "sound discretion." P.M., supra, 441 N.J. Super. at 140. Moreover, we find the judge provided sufficient "'objective and subjective bases'" in support of his decision to deny defendant's motion for recusal. Accordingly, we find the judge did not abuse his discretion when denying defendant's recusal motion.
Defendant next argues that "the PCR court's denial of [his] request to subpoena . . . juror E.C. violated the Appellate Division's remand directive." On remand we directed that the evidentiary hearing encompass "what, if anything, trial counsel knew about the relationship of one of the empanelled jurors to defendant's mother, and the input, if any, her presence on the jury may have had to defendant's right to a fair trial." Comer III, supra, slip op. at 1.
Defendant contends that his trial counsel's knowledge of the alleged juror impropriety and the impact of E.C.'s presence on the jury were two separate and distinct issues that should have been analyzed at the evidentiary hearing. Therefore, aside from determining defendant's trial counsel's knowledge of the alleged juror impropriety, defendant argues the judge should have granted his motion to subpoena E.C. in order to determine her impact on his right to a fair trial.
The judge disagreed with defendant's interpretation of the scope of the remand. He stated at the evidentiary hearing,
I get from that sentence . . ., the reverse and remand, is that if I find [defendant's trial counsel] knew about [the alleged juror impropriety], . . . that would end the inquiry. The next inquiry of evidentiary hearing would be determin[ing] that if [defendant's trial counsel] knew about it, [and] did nothing about it, if it would have made a wit of difference.
In other words, if one of the . . . empaneled jurors knew the defendant's mother, would her presence of the jury have had an impact on the defendant's right to a fair trial[?] I read that sentence as saying there is no inquiry with regard to
the relationship between the juror and the defendant's mother if it was never brought to anybody's attention.
In light of our review of the record, we are satisfied that the conduct and scope of the comprehensive evidentiary hearing was in accord with the remand. The purpose of the remand was to determine defendant's trial counsel's knowledge of the alleged juror impropriety, and how this knowledge could have prejudiced defendant's right to a fair trial.
After hearing testimony from the witnesses, the judge concluded:
So, it's clear in this [c]ourt's mind, now that I've actually heard the testimony of [defendant's trial counsel] that [defendant's trial counsel] is telling the truth. Nobody ever told him anything about any allegation with regard to the relationship between a juror and the defendant's mother.
In opposition to that proposition, the defendant presents his testimony and that of his mother. . . .
I find her testimony to lack credibility, as I do [defendant's]. I find [defendant's trial counsel's] testimony credible and I therefore conclude, based upon this evidentiary hearing and my finding as to credibility with regard thereto, that [defendant's trial counsel] had no knowledge of any such allegation at any time and that his . . . representation of [defendant] was more than effective.
We defer to the credibility assessments of the trial court, State v. Locurto, 157 N.J. 463, 474 (1999). Here, we find no basis to disturb those assessments and the determination that flowed therefrom.
Notwithstanding, we briefly address the issue of post-verdict interrogation of a juror. Rule 1:16-1, provides that "[e]xcept by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney, interview, examine, or question any grand or petit juror with respect to any matter relating to the case." As our Supreme Court held, "[I]t is a high bar that defendant must hurdle to show good cause: 'Calling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.'" State v. Harris, 181 N.J. 391, 503 (2004) (quoting State v. Athorn, 46 N.J. 247, 250 (1966)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The Court further held that "good cause" would exist "if a defendant makes a strong showing that a 'juror inform[ed] (or misinform[ed]) his colleagues in the jury room of facts about the case, based on his personal knowledge, which facts were not introduced into evidence [. . . .]'" Ibid. (quoting Athorn, supra, 46 N.J. at 251-52).
Here, defendant failed to provide credible evidence satisfying the "good cause" standard. See R. 1:16-1. Rather, defendant and his mother provided their bald assertions to the remand judge regarding juror impropriety which, having had the opportunity to consider as fact finder, he rejected.
Finally, defendant argues "this matter must be remanded for an evidentiary hearing because [the] PCR counsel was ineffective." To support this contention, defendant contends his "PCR counsel was ineffective for failing to subpoena employment records of defendant's mother . . . and . . . [E.C.] at the evidentiary hearing to support [the] juror impropriety claim." Defendant further argues "that counsel['s] deficient performance prejudiced [his] opportunity to present a meaningful claim[,] and the results of the hearing would have been different [had his PCR counsel provided effective assistance]."
We recognized in State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000), "an attorney representing a defendant in post-conviction relief proceedings may have little ammunition." However, our Supreme Court held in State v. Rue, 175 N.J. 1, 18 (2002), that under New Jersey's PCR scheme, a PCR attorney "is responsible to communicate with his client and investigate the claims." The Court further opined, "[b]ased on that communication and investigation, counsel then must 'fashion the most effective arguments possible.'" Ibid. (quoting Velez, supra, 329 N.J. Super. at 133). In other words, as we held in Velez, a PCR attorney is required to "give his best efforts to his client's cause." Velez, supra, 329 N.J. Super. at 133.
The standard for determining whether a defense, PCR, or appellate attorney's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework.
Under Strickland's first prong, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish the first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment . . . .'" State v. Gaitan, 209 N.J. 339, 349-50 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
Pursuant to Strickland's second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "'[T]he defendant must show that the deficient performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
A PCR applicant must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). One seeking such a remedy must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the applicant. Cummings, supra, 321 N.J. Super. at 170. "[B]ald assertions" of ineffective assistance are not enough. Ibid.
Here, defendant's ineffective assistance of counsel argument focuses on his PCR counsel's failure to subpoena employment records demonstrating that his mother and E.C. worked together. The argument is wholly without merit.
There was no need for PCR counsel to subpoena defendant's mother's employment records as she testified about her "employment" relationship with E.C. and the alleged information E.C. was privy to regarding defendant. Further, the judge did not deny defendant's juror impropriety claim based upon the issue of whether defendant's mother and E.C. were employed by the same employer. The judge denied defendant's claim because he found that defendant's trial counsel was never made aware of any juror impropriety, and defendant and his mother lacked credibility.
We conclude defendant's PCR counsel's performance at the evidentiary hearing fell within "'the wide range of reasonable professional assistance'" required for effective assistance of counsel. Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). Moreover, the choice not to subpoena the employment records was not an "error . . . so serious as to undermine the court's confidence in . . . the result reached." Allegro, supra, 193 N.J. at 367.
Defendant's remaining argument regarding the judge's evidentiary determination as to hearsay lacks sufficient merit to warrant further 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