Opinion
DOCKET NO. A-3597-14T4
07-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERMAINE A. DAVIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0454. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from a February 21, 2014 order denying his petition for post-conviction relief. We affirm.
In November 2006, Felix Briceno was robbed at gunpoint by three men; he saw the face of the man who pointed the gun at him, and he later described the man to police. The assailants took Briceno's wallet, containing his money, driver's license, and credit card.
Briceno then flagged down a police cruiser, provided a description of the assailants, and pointed in the direction they fled. Police found defendant lying in a backyard. Defendant matched Briceno's description and was arrested. Defendant was wearing a jacket, and police recovered a nine millimeter gun with a defaced serial number as well as Briceno's driver's license and credit card. Briceno then identified defendant as one of the assailants.
Defendant testified and denied any involvement in the robbery. He claimed that he was robbed by three hooded individuals the same night and was hiding. Defendant further claims the police planted evidence on him.
Defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) and 2C:2-6.
On appeal, defendant raises the following points:
POINT IWe find insufficient merit in defendant's first two arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the judge in his written opinion. We add only the following brief comments.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL.
POINT III
THE MATTER SHOULD BE REMANDED TO THE TRIAL COURT TO CORRECT THE JUDGMENT OF CONVICTION IN THREE SEPARATE RESPECTS TO ACCURATELY REFLECT CERTAIN ASPECTS OF THE DEFENDANT'S TRIAL AND SENTENCE.
For a defendant to obtain relief based on ineffective assistance grounds, he or she must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his or her right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Applying these well-settled standards, we conclude that counsel was not ineffective, and defendant suffered no prejudice because the prosecutor's conduct was not so egregious as to deprive defendant of a fair trial. Here, certain comments by the prosecutor "were prompted by comments in the summation of defense counsel," State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013), or otherwise related to the scope of evidence presented, Frost, supra, 158 N.J. at 82.
Defendant maintains he was denied a fair trial because counsel failed to object to two comments from the prosecutor's summation. First:
Now approximately 14 months later can [Briceno] identify the person today here in the courtroom? He never saw that person prior to that day. Hasn't seen that man afterwards. He could have just said, yeah, that's him right over there. He didn't do
that. I submit to you his testimony is more logical, more probable, more credible that he couldn't make an I.D. in the courtroom today.This was an appropriate response to defense counsel's summation references that the victim was unable to make an in-court identification. It was also based on the evidence presented at trial that defendant was present the night of the robbery. Moreover, this was an appropriate attempt to support the victim's credibility. State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004).
We all know [defendant] was the man there that night. The police officers told you that. [Defendant] said he was the man [there] that night. It's actually more credible that [Briceno] couldn't do the in-court identification.
Defendant also highlights the prosecutor's following statement:
Now here's the best, I find most interesting part of the story. In order to believe the events that [defendant] told you on the stand one thing is for certain, [a detective] lied to you. He lied to you about all his testimony.Defendant placed his and the police officers' credibility at issue by contradicting the State's theory, maintaining he himself was a robbery victim, and the police planted evidence. The prosecutor did not improperly reference factors outside the evidence to show the police lacked motive to fabricate evidence. Cf. Frost, supra, 158 N.J. at 85-86 (commenting on lack of motive for police to lie). The prosecutor merely addressed the defendant's own argument attacking the credibility of the police and recognized the credibility determinations at issue. State v. Williams, 317 N.J. Super. 149, 158 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999) (explaining "prosecutor's comments must be considered within the context of defense counsel's closing statement").
He not only lied to you, every police officer at that scene that night, by his own account there was at least five other cars out there, they all lied because he was telling everybody at the scene I'm the victim. I'm the victim. I was the victim.
Consequently, appellate counsel was also not ineffective for failure to challenge the prosecutor's statements. The Strickland test applies to claims of ineffective assistance of appellate counsel. State v. Loftin, 191 N.J. 172, 197-98 (2007). Appellate counsel was not ineffective by choosing not to raise this issue on appeal because appellate counsel is not required to raise every argument a defendant urges, Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983), especially a weak one as here.
An evidentiary hearing should be conducted when the facts, viewed in the light most favorable to defendant, establish a prima facie showing of ineffective assistance of counsel and demonstrate a reasonable likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring a defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Because the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test, defendant is not entitled to an evidentiary hearing.
Finally, defendant points out three errors in the judgment of conviction. First, defendant was found guilty by a jury; he did not enter a guilty plea. Second, defendant was convicted of second-degree robbery, but the judgment of conviction lists first-degree robbery. And third, because defendant was convicted of second-degree, not first-degree, robbery, he is subject to three years of parole supervision, N.J.S.A. 2C:43-7.2(c), not five. The State agrees to the limited remand to correct the judgment of conviction.
Affirmed in part; reversed and remanded in part to correct the judgment of conviction. 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