Opinion
DOCKET NO. A-1800-08T4
05-15-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK GOODSON, a/k/a MARC S. GOODSON, a/k/a TALIB A. GOODSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Christopher W. Goodwin, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 02-08-0364.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Christopher W. Goodwin, Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Mark Goodson appeals the trial court's denial of his motion for post-conviction relief ("PCR"), following an evidentiary hearing. The trial court rejected defendant's claims, particularly his contention that his former trial attorney had deprived him of the effective assistance of counsel by failing to call an allegedly exculpatory witness at trial. We affirm.
The relevant background is as follows. On April 10, 2002, a confidential reliable informant notified Steven Dick, an investigator in the Salem County Prosecutor's Office, that defendant would be making cocaine deliveries at various locations in Carneys Point. The informant stated that defendant would leave his residence on East Broadway driving a tan Ford Taurus. Additionally, the informant advised that the cocaine would be located in either the gas cap area of the Taurus or at the front of the car in a protective covering. The informant also noted the approximate time that defendant would be delivering the cocaine.
Investigator Dick provided the information obtained from the informant to Investigator John Pelura, also of the Salem County Prosecutor's Office. On that same day, Investigator Pelura went to defendant's residence on East Broadway and observed defendant park a gold Ford Taurus in front of the residence at about 8:00 p.m. The Taurus belonged to the mother of defendant's daughter.
Pelura observed defendant go into the residence and then emerge two minutes later. After defendant left the residence, he stood at the rear of the Taurus near the gas cap area. Although Pelura did not specifically observe defendant place an object in or by the gas cap, he could see that defendant "was very close to the rear area of the car." Then defendant drove away in the vehicle.
For approximately five minutes, Pelura lost sight of the Taurus. Pelura then noticed the vehicle double-parked on a local street. He also saw that a sixteen-year-old girl, G.M., was in the driver seat, and that defendant was at that point a passenger in the vehicle.
G.M. drove the Taurus towards the direction of Carneys Point, the location where the informant had stated that defendant would be selling the drugs. Dick then instructed a marked State Police unit to stop defendant's car. Defendant's car was then stopped on Courses Landing Road in Carneys Point. Dick arrived and advised defendant that he was suspected of transporting illegal drugs. He requested defendant's consent to search the vehicle. While denying that he possessed drugs, either on his person or in the car, defendant signed a form consenting to the search.
A K-9 unit officer then arrived at the scene. The dog signaled an alert by the gas cap area of the car. The officers on the scene opened the gas cap door, discovering twenty-three bags of cocaine. The officers then arrested defendant.
The officers brought defendant to the Carneys Point police station, where he was interviewed by a sergeant from the County Prosecutor's office. The sergeant provided defendant Miranda rights, and defendant signed a Miranda waiver form. Defendant then confessed to possessing the drugs and planning to sell them for $200. The confession was tape-recorded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was indicted and charged in two separate indictments with various offenses involving the possession of controlled dangerous substances ("CDS"). Prior to trial, defense counsel moved to suppress, among other things, the cocaine seized during the stop of the Taurus and the ensuing search. The trial court denied the suppression motion after a hearing. The trial court also denied defendant's pretrial motion to exclude the incriminating statements he made to the officers at the time of his arrest.
During the trial, Investigator Pelura, Investigator Dick, a sergeant from the Prosecutor's Office, and a New Jersey State Trooper testified on behalf of the prosecution. Only defendant testified on his behalf.
Defendant contended at trial that he had not provided a truthful confession when he was arrested. Defendant asserted that he had lied in order to protect G.M. Additionally, defendant testified that the drugs found in the gas cap area were not his, and that his brother had likely placed them in that location.
The jury found defendant guilty of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1), and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(5). The trial court sentenced him to a prison term of ten years, with a five-year parole disqualifier, to run consecutive to a sentence on an unrelated matter.
Defendant appealed his conviction, raising the following two points in that direct appeal:
POINT I
THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE DID NOT DEMONSTRATE ANY VERIFIABLE INSTANCE OF PAST RELIABILITY OF THE INFORMANT AND A PROPER BASIS OF KNOWLEDGE.
POINT II
THE COURT ABUSED ITS DISCRETION WHEN IT SENTENCED DEFENDANT TO AN EXTENDED TERM AND THEN IMPOSED A SENTENCE ABOVE THE BASE PRESUMPTIVE EXTENDED TERM AND BY IMPOSING A
FIVE YEAR DISQUALIFIER USING FACTORS NOT FOUND BY THE JURY AND ALSO BY IMPOSING A CONSECUTIVE SENTENCE WITHOUT GIVING ANY BASIS ON THE RECORD FOR SUCH AN IMPOSITION.
On March 24, 2006, this court affirmed defendant's conviction in an unpublished opinion, and remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Goodson, No. A-3968-03 (App. Div. Mar. 24, 2006). The Supreme Court denied defendant's certification. State v. Goodson, 188 N.J. 356 (2006). On May 3, 2006, defendant was re-sentenced to the same terms, with the modification that they were to run consecutive to each other, but concurrent with the sentence from a prior unrelated matter.
On January 10, 2008, defendant filed a PCR petition. He alleged that the State did not file the motion for an extended term within the fourteen-day time limit pursuant to Rule 3:21-4(e); that the prosecutor failed to provide a clear indication that he was seeking an extended term; and that the sentencing judge did not provide a reason for imposing a consecutive sentence.
These sentencing-related issues raised by defendant, pro se, did not become the focus of the PCR proceedings, which instead explored trial counsel's decision not to call G.M. as a witness.
Defendant submitted a typed statement from G.M. along with the PCR petition. The statement was not notarized and it was vaguely dated "Sept. 03[.]" In that statement, G.M. claimed that she had witnessed defendant's brother "fiddle" near the gas cap area of the car on the night of defendant's arrest. According to her statement, "[a]s [defendant] sat in the drivers seat [I] saw his brother fiddle with the gas cap on the passenger side of the car but saw no harm in the action so I said nothing about it." G.M's statement also asserted that defendant had lied to the police officers about placing the drugs in the vehicle in order to protect her. Specifically, she claimed that defendant "said that although he ha[d] no idea who put the drugs in his car that he was going to lie and claim ownership so that [G.M.] would be set free and not get in trouble."
G.M.'s typed statement also discussed her interactions with defendant's trial attorney. She contended that "[o]n the day of trial [she] was turned around by [defense counsel] and he told [her] in the hallway that [she] was not needed in the trial and did not need to come back anymore." G.M. also claimed that she informed defense counsel on the day of the trial that she wanted to testify because she knew that defendant "was innocent and only claimed the drugs to have [her] freed, but [counsel] insisted that [her] testimony would not be needed regardless[.]" G.M. concluded the typed statement by stating that she would "like a chance to set the record straight[,]" and that she knew defendant's "brother was guilty" and not defendant.
Oral argument on defendant's PCR petition, without any testimony, was initially held on July 11, 2008. On July 22, 2008, the trial court dismissed defendant's petition in a written order.
Defendant then appealed the trial court's denial of his PCR petition. Defendant raised before us the following issues:
THE [PCR] COURT ERRED IN CONCLUDING THAT DEFENDANT ASSERTED GROUNDS FOR RELIEF WERE PROCEDURALLY BARRED.
THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRAIL COUNSEL.
A. Trial Counsel's Failure To Investigate And Prepare For Trial With Respect To Salem County Indictment No. 02-08-00364-I Constituted Ineffectiveness of Counsel.
B. With Respect To Salem County Indictment No. 02-02-00083-I, Trial Counsel's Failure To Object To The Imposition Of An Extended Term Due To The State's Failure To File A Timely Motion For A Mandatory Extended Term Constituted Ineffectiveness Of Counsel.
In an unpublished opinion, we remanded the PCR matter and ordered an evidentiary hearing regarding defendant's allegation of ineffective assistance of counsel with respect to G.M.'s statement that she was willing to testify at trial on defendant's behalf. State v. Goodson, No. A-1800-08 (App. Div. May 18, 2010) (slip op. at 7).
On October 14, 2010, the trial court accordingly held an evidentiary hearing on defendant's PCR petition. At that hearing, G.M. and defendant's trial attorney testified.
A different judge presided over the remand hearing.
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Defendant's trial attorney testified that he had interviewed G.M. twice prior to trial. In the first interview, which occurred in a phone conversation, G.M. stated to counsel that defendant had picked her up. Defense counsel then interviewed G.M. a second time, either on the day of defendant's trial, or the day before the trial. This second conversation occurred in person at the court house in a hallway. During this later conversation, G.M. stated to counsel "that she was at [defendant's] house and while at [defendant's] house, she saw his brother put the drugs into the gas cap."
Defense counsel testified that he did not call G.M. as a witness at defendant's trial due to, among other reasons, her inconsistent statements as to where defendant had picked her up. When specifically asked in the PCR hearing why he did not call G.M. as a witness, counsel testified, "[b]ecause number one; I didn't believe her and number two; I didn't know what she was going to say because when I spoke to her in the hallway, she was back and forth between the two statements. She wasn't sure what she wanted to say."
Additionally, counsel recalled that he spoke to G.M. before the trial and he asked her "do you understand that if you get on the stand and tell a lie and are found to tell a lie, you can be charged with that? She said yes . . . I said, did you actually see someone put something in the gas cap? She said no." Counsel also testified that G.M. told him that defendant "said this is what I need to say to get him off."
In addition, defense counsel testified that another unidentified woman had informed him that the drugs found in defendant's car belonged to her. This second woman then asked whether she would go to jail for stating that the drugs were hers. Counsel recalled that he informed her that it was possible she would go to jail. The woman then responded that she was not going to say anything, and that defendant had told her to say that they were hers.
In her own testimony at the PCR hearing, G.M. stated that she met defendant at her mother's house, and that she saw defendant's brother outside of the car. She acknowledged that she originally had told the police that she did not know anything about the cocaine in the vehicle, and that she had not told the police that defendant's brother was near the car. G.M. asserted that the contents of the typed letter were nevertheless true. Additionally, G.M. testified that she wrote the letter on her own, and no one told her to write it.
On November 10, 2010, the trial court again denied defendant's PCR petition, this time in a written decision and companion order. The court noted that defendant's trial attorney had believed there was "overwhelming" evidence against defendant, and that counsel had made a strategic decision at trial to attempt to convince the jury that the officers had coerced defendant's confession. Additionally, the court noted that counsel had not called G.M. as a witness because he had "grave concerns" about her credibility. Based upon these findings, the court concluded that trial counsel's representation of defendant had not been ineffective.
Defendant now appeals. His appellate counsel raises the following point for our consideration:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSELIn addition, defendant has filed a pro se supplemental brief raising the following point:
[TRIAL COUNSEL'S] TESTIMONY AT PCR EVIDENTIARY HEARING AMOUNTED TO HIM HAVING FACT[]-SENSITIVE-KNOWLEDGE OF CRITICAL WITNESSES STATEMENTS BEFORE TRIAL THAT WOULD HAVE EXONERATED THE DEFENDANT HAD COUNSELHaving fully considered these arguments, we affirm the trial court's dismissal of the PCR petition, substantially for the reasons set forth in Judge Timothy G. Farrell's written opinion of November 10, 2010. We add the following comments.
MADE A "REASONABLE" INVESTIGATION WHETHER OR NOT HE BELIEVED THEM TO BE EXCULPATORY-AND-CONTRADICTORY AT THE SAME TIME. THEREFORE HIS FAILURE IN DOING SO, VIOLATE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION. (RAISED BELOW).
A convicted defendant must establish two elements to support a finding that he was deprived of the effective assistance of counsel by his trial attorney. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). First, he or she must demonstrate that the trial counsel's performance was deficient. Ibid. Second, defendant must show that the deficient performance actually prejudiced his or her defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
When reviewing claims of ineffectiveness, courts apply a strong presumption that defense counsel "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. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). The judgment calls made by defense counsel ordinarily do not warrant relief. "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
Applying these well-established standards, the trial court properly rejected defendant's claim that his constitutional rights were violated by his former attorney's failure to call G.M. as a witness at trial. Numerous reasons support that conclusion.
As defendant's trial counsel credibly testified at the PCR evidentiary hearing, he did not believe G.M.'s proposed testimony about the car and the gas cap and had abundant reasons for doing so. Her account was riddled with inconsistencies. For example, she indicated that defendant had asked her to lie on his behalf. Additionally, she changed her story and claimed to have seen defendant's brother near the car's gas cap. As defense counsel pointedly described it, "she was back and forth between the two statements. She wasn't sure what she wanted to say." Defense counsel was not obligated to believe G.M.'s explanation that she had vacillated in her story because she was scared.
Defense counsel simply did not believe that G.M.'s testimony was credible. That assessment should not be second-guessed. See State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting a court's review of a defense attorney's decision whether to call a witness should be "highly deferential") (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). It was not necessary, as defendant argues, for his trial attorney to have met G.M. in person, as opposed to speaking with her on the phone, to recognize the inconsistencies in her narrative and to be concerned about the indicia that defendant may have suborned perjury from her and the other woman. The problems with G.M's credibility essentially stemmed from the contents of her assertions, not her demeanor, body language, or facial expressions. Defense counsel had every right to be concerned that G.M.'s testimony at trial would have done his client more harm than good.
Turning to the second prong of Strickland and Fritz, there is no basis to conclude that any alleged deficiency in the failure to present G.M.'s testimony caused "actual prejudice" to defendant. As the PCR judge found, defendant failed to establish "that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The jury listened to an audio recording of defendant confess to police officers after his arrest to possessing drugs with the intent to distribute them. Apart from that recording, several police officers testified at trial to a host of incriminating facts, including defendant's confession, their observation of defendant near the gas cap area of the Taurus, and their ensuing discovery of twenty-three bags of cocaine.
The remaining contentions of defendant, including those set forth in his pro se supplemental brief, lack sufficient merit to warrant discussion in this 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