Opinion
DOCKET NO. A-3324-12T4
05-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER EVANS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, 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NOT FOR PUBLICATION WITHOUT THE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 Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2175.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Christopher Evans appeals from a December 3, 2012 order denying his petition for post-conviction relief (PCR). We affirm.
I
The trial evidence was discussed in our opinion affirming defendant's conviction on direct appeal, and need not be recounted here in detail. State v. Evans, No. A-1530-08 (App. Div. June 24, 2011), certif. denied, 208 N.J. 601 (2011). To summarize, defendant was involved in the robbery of four people, one of whom was shot and killed by a co-defendant. None of the robbers wore masks, and the three surviving robbery victims identified defendant as one of the perpetrators. A fourth person, who fled before the robbery actually commenced, also identified defendant. Once arrested, defendant confessed to participating in the robbery, although he denied being involved in the shooting.
After holding a preliminary Wade hearing, the trial judge found that the witness identification procedures were not unduly suggestive, and a testimonial hearing was not required. Following a Miranda hearing, the judge also found that defendant's confession was voluntary and admissible at the trial. Hence, the jury heard the four witnesses identify defendant at the trial, and heard his confession.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Based on that overwhelming evidence, defendant was convicted, at his 2007 trial, of four counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of conspiracy to commit robbery N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1. However, the jury acquitted defendant of two weapons charges and deadlocked on a felony murder charge. Thereafter, the State withdrew that charge. Defendant was sentenced to an aggregate term of thirty years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On his direct appeal, defendant raised the following arguments:
POINT I: EVANS'S MOTION FOR A WADE HEARING REGARDING THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN GRANTED BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE. (Partially Raised Below)
A. Failure To Utilize An Independent Officer To Conduct The Photographic Identification Procedure Was A Material Violation Of Section IA Of The Guidelines.
B. Failure To Record The Necessary Details Of The Photographic Identification Procedure Was A Material Violation Of Section II Of The Guidelines As Well As Contrary to State v. Delgado.
POINT II: EVANS'S RIGHT TO CONFRONTATION AND THE RULES OF EVIDENCE WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF CELLULAR TELEPHONE REPORTS INTO EVIDENCE. U.S. CONST., AMENDS VI, XIV; N.J. CONST. (1947), ART. 1, PARA. 10. (Partially Raised Below)
A. The Evidence Does Not Satisfy The "Business Record" Exception To The General Ban On Hearsay.
B. Admission Of The Evidence Violated Evans's Rights To Confrontation.
POINT III: EVANS'S RIGHTS TO PROPER DISCOVERY, DUE PROCESS OF LAW, AND THE ABILITY TO PREPARE A DEFENSE UNDER U.S. CONST., AMENDS VI, XIV WERE VIOLATED WHEN DETECTIVE C. SMITH DESTROYED HIS NOTES ONE MONTH BEFORE THE TRIAL.
POINT IV: REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH III, SUPRA.
POINT V: THE TRIAL COURT'S IMPOSITION OF AN AGGREGATE THIRTY YEAR SENTENCE OF IMPRISONMENT, SUBJECT TO THE NO EARLY RELEASE ACT, WAS EXCESSIVE AND UNDULY PUNITIVE, THEREFORE IT MUST BE REDUCED.
In affirming defendant's conviction and sentence, we considered all of those arguments and found them to be without merit. In particular, we rejected defendant's arguments concerning the Wade hearing, the alleged improper photographic identification procedures, and the destruction of the investigating detective's notes.
Defendant filed a pro se PCR petition on January 19, 2012. His attorney filed an eighty-nine page formal brief in support of the petition, asserting that defendant's trial counsel was ineffective in failing to consult with him, failing to request a Wade hearing, failing to object to police misconduct, failing to "zealously object" to the admission of telephone records or to the admissibility of the investigating detective's testimony, and failing to argue mitigating factors at sentencing. He also argued that defendant's appellate counsel was ineffective.
At defendant's request, his attorney also submitted a supplemental PCR brief, asserting that his trial attorney should have obtained telephone records to support an alibi defense, appellate counsel failed to "adequately argue" the trial court's errors concerning the Miranda hearing, trial and appellate counsel failed to argue that the verdict was "inconsistent" and against the weight of the evidence, trial counsel should have raised issues concerning the identification of defendant, trial and appellate counsel should have raised issues concerning the jury charge on robbery and attempted robbery, and trial counsel was ineffective in "refusing to allow" defendant to testify at the trial.
After hearing oral argument on December 3, 2012, the PCR judge, who had also presided over the trial, issued a detailed written opinion rejecting all of the arguments presented in defendant's initial brief. The opinion did not address the issues raised in the supplemental brief, although during the oral argument PCR counsel stated that he had filed two briefs.
II
On this appeal, defendant raises the following issue:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Request An Adverse-Inference Charge, Though The State's Primary Investigator Destroyed All His Notes Prior To Trial. (Partially Raised Below)
B. Trial Counsel Failed To Adequately Consult With Defendant And To Adequately Investigate His Matter.
Defendant withdrew Point II, pertaining to the denial of oral argument on the petition. A transcript of the December 3, 2012 oral argument was discovered after the briefs were filed, and defendant has filed that transcript with the court. On March 25, 2014, defendant filed a "pro se motion" to expand the record to include the supplemental brief that his PCR counsel submitted to the PCR court by letter dated August 28, 2012. We granted that motion.
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To establish a prima facie case of ineffective assistance of counsel, defendant must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must produce legally competent evidence that his attorney provided deficient legal representation, and that the attorney's "deficient performance prejudiced the defense." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693). To be entitled to an evidentiary hearing on a PCR petition, defendant must present legally competent evidence on both prongs of the test. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Mere "bald assertions" will not suffice. State v. Cummings, 321 N.J. Super. 154, 166-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant's argument concerning his counsel's failure to consult with him is a "bald assertion" unsupported by legally competent evidence. See Cummings, supra, 321 N.J. Super. at 170. That claim was properly rejected by the PCR court.
Defendant raised the issue of the destroyed notes on his direct appeal. We concluded that the detective's action was improper but found that defense counsel zealously cross-examined the detective on that point. Our opinion noted in passing that the defense did not request an adverse inference charge. Defendant now contends that his trial counsel was ineffective for failing to request an adverse inference charge. We reject that argument for the reasons stated by the PCR judge.
We add that in our decision on direct appeal, we found that there was no plain error with respect to the destruction of the notes because the evidence against defendant was overwhelming, and defense counsel's cross-examination of the detective was sufficient to "forcefully" bring the issue to the jury's attention. It was implicit in our decision, and we so find here, that the addition of an adverse inference charge would not have changed the outcome of the trial. Therefore, defendant cannot satisfy the second prong of the Strickland test.
Although it is not clear whether the PCR judge considered the supplemental brief, we have reviewed the brief and considered the arguments. We conclude that a remand is not required, because defendant's contentions are palpably without merit.
The contention about telephone records is a bald assertion unsupported by evidence. The argument concerning the Miranda hearing is unconvincing to us and would not have carried the day if raised on appeal. There was no possibility that the trial or appellate court would have found that the verdict was against the weight of the evidence or fatally inconsistent. On direct appeal, we addressed counsel's zealous attack on the identification issue; the issue cannot be re-raised in this PCR petition. R. 3:22-5. Contrary to defendant's next argument, the trial judge differentiated for the jury between robbery and attempted robbery; he did not tell the jury that they were "the same." Defendant's final point, concerning his wish to testify and his attorney's alleged refusal to permit him to testify, is unsupported by legally competent evidence. Cummings, supra, 321 N.J Super. at 170.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION