Opinion
DOCKET NO. A-0370-11T2
02-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALPHONSO EDWARDS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Simonelli.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2416.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried to a jury, defendant Alphonso Edwards was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d). On the State's application, the judge sentenced defendant to an extended term of imprisonment without possibility of parole in accordance with N.J.S.A. 2C:43-7.1. The judge merged defendant's conviction for the weapons offense with his conviction for robbery. We affirmed defendant's conviction and sentence on direct appeal, and the Supreme Court denied his petition for certification. State v. Edwards, No. A-2241-07 (App. Div. July 27), certif. denied, 201 N.J. 145 (2009).
Defendant then filed a petition for post-conviction relief. He asserted that his trial counsel provided mutually exclusive and inconsistent defenses and that his trial and appellate counsel failed to object to the trial court's deviation from a directive of the Administrative Office of the Courts governing the voir dire of prospective jurors for criminal cases. We affirm substantially for the reasons stated by Judge English in his comprehensive oral opinion delivered on February 4, 2011.
In our prior opinion, we provided this statement of the evidence presented at trial.
The State's proofs against defendant at trial were overwhelming. On September 3, 2005, at about 8:30 p.m. a man entered the discount liquor store in Neptune Township wearing a mask and baseball cap and his right hand covered. He pointed his right hand at Jo George, an employee, and told him to open the register. After George opened and closed the register, the man pulled the register off the counter and slammed it toOn this appeal, defendant raises two issues:
the floor, causing the cash drawer to open. As he did so, the object he was holding in his right hand fell to the floor. It was a knife with a five-inch blade.
The store manager walked to the front of the store and was alerted by the sound of the cash register falling to the floor. He saw the masked man and then hit the panic button under the counter to notify the police. The manager and Pablo DeJesus, another employee, wrestled with the man and pulled off the hat and mask revealing the man's face. The robber fled, dropping cash taken from the register as he ran toward a bicycle. DeJesus pulled the man to the ground, and money scattered everywhere. The robber swung the knife at DeJesus, jumped a fence and escaped into a wooded area. When the police responded, they were advised of a surveillance tape that recorded the incident. They also collected the mask and hat worn by the robber.
Kathleen Matovsky lived directly across the street from the liquor store. On the date and time of the robbery she heard a commotion across the street. At 3 a.m. she awoke and let her dogs out in her yard. When they returned, one of the dogs dropped a billfold at her feet. The billfold contained defendant's social security card, picture identification, birth certificate as well as a pawn slip and medical form bearing defendant's name. Ms. Matovsky turned over the billfold and loose cash found in her backyard to the police.
Based upon the identifying documents found in the Matovskys' yard and the surveillance video from the store, the police constructed a photo array. DeJesus viewed the array and immediately identified the defendant. On December 9, 2005, defendant was located and arrested at a crack house. Abrasions on his knees, shin,
back and shoulder were consistent with the altercation following the robbery. Months later, on March 23, 2006, authorities obtained a buccal swab from defendant for DNA analysis. At trial the State police forensic scientist analyzed the DNA profiles lifted from the ski mask and baseball cap and compared them to the control DNA sample from the buccal swab. The DNA on the hat and mask matched defendant's DNA sample. Finally, the jury was shown the video from the liquor store which reflected three separate angles of surveillance from which still pictures were made that depicted defendant.
The defense was voluntary intoxication. Defendant testified that he grew up in Alabama and began drinking "moonshine" when he was only ten or eleven years old. Within four or five years he became a blackout drinker, and at times the blackouts would last days. He testified that he stopped drinking moonshine when he moved to New Jersey but became addicted to beer and committed crimes as a result. When he was last released from prison, he began using cocaine in addition to drinking alcohol. He said on September 1, 2005, two days before the robbery, he spent his entire paycheck on cocaine, vodka, beer and cigarettes. He said that after drinking the vodka and using the cocaine, he had a blackout that lasted five days. He remembered nothing during that time.
[Id. at 2-5.]
I. DEFENDANT'S TRIAL COUNSEL'S DECISION TO PURSUE INCONSISTENT AND MUTUALLY EXCLUSIVE DEFENSES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
II. THE FAILURES OF TRIAL AND APPELLATE
COUNSEL TO RAISE THE ISSUE OF NON-COMPLIANCE WITH THE MANDATORY JURY SELECTION PROCEDURES WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
In order to obtain relief from his conviction based on ineffective assistance of trial counsel, defendant had to "prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would" have been different but for counsel's error. State v. Allegro, 193 N.J. 352, 366 (2008). He did not make even a prima facie showing of the requisite deficient performance and prejudice.
In this case the defenses of voluntary intoxication and inadequacy of the State's evidence were not mutually exclusive or inconsistent at all. Defendant testified that he could not remember anything that happened during the several days that he was blacked out. That testimony, as opposed to testimony providing defendant's recollection of the event or his whereabouts at the time of the crime, is in no way inconsistent with a challenge to the adequacy of the State's evidence establishing that defendant perpetrated the robbery. For that reason, defendant failed to make a prima facie showing of deficient performance. Cf. State v. Castagna, 187 N.J. 293, 316 (2006) (concluding that a claim of ineffective assistance based on counsel's strategy to admit defendant's guilt of lesser crimes warranted exploration on an application for post-conviction relief to determine whether defendant agreed with the strategy). Substantially for the reasons given by the trial judge, post-conviction relief on this ground was properly denied without an evidentiary hearing.
Turning to defendant's second claim, there is no question that trial courts are bound to follow the administrative directive on conducting the jury voir dire in criminal cases. State v. Morales, 390 N.J. Super. 470, 472-73 (App. Div. 2007) (reversing, on the State's motion for leave to appeal, an order of the trial court proposing a deviation from the directive). Nevertheless, we have recognized that deviation from a directive addressing jury voir dire warrants relief only when it results in "'a miscarriage of justice,' R. 2:10-1." Gonzalez v. Silver, 407 N.J. Super. 576, 596 (App. Div. 2009). Here, defendant contends that his trial and appellate counsel ought to have objected to the trial court's deviation from a provision of the directive requiring the judge to pose each question to each juror individually. That directive took effect the day prior to this trial, and it was subsequently modified to relax that requirement. Substantially for the reasons stated by the trial judge, defendant did not make a prima facie showing that his trial or appellate counsel's failure to address this deviation undermined "confidence in the jury's verdict or the result reached." Castagna, supra, 187 N.J. at 315; cf. State v. Loftin, 191 N.J. 172, 198-99 (2007) (finding ineffective assistance of trial and appellate counsel based on their failure to object to the inadequate steps taken in response to evidence that a juror made statements revealing his bias and his prejudgment of the case).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION