Opinion
DOCKET NO. A-5912-12T3
12-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES R. HOLMAN, a/k/a MAHA MUDRA and MARCUS R. HENDERSON, Defendant-Appellant.
James R. Holman, appellant pro se. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-05-1013. James R. Holman, appellant pro se. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This is defendant James R. Holman's direct appeal from his 1996 conviction for murder, N.J.S.A. 2C:11-3a(1) and (2), 2C:2-6; and conspiracy to commit murder, N.J.S.A. 2C:5-2, 2C:11-3a(1) and (2). By way of explanation for the long delay in our hearing this appeal, we provide the following procedural history.
Defendant was convicted in 1991 of murder, conspiracy to commit murder, possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) in connection with the death of Mario Lee. Defendant admitted shooting Lee in a lengthy confession to police, but claimed he did so under duress within the meaning of N.J.S.A. 2C:2-9. Specifically, he claimed he was a low level foot soldier in a violent gang and shot Lee because he was ordered to do so by his co-defendant Corey Grant, an upper level operative in the Pretlow organization, also known as the E-Port Posse. Finding the trial court erred in preventing defendant from calling Assistant Prosecutor Eleanor Clark to aid his defense of duress, and that the prosecutor's comments in summation denigrated that defense and were otherwise prejudicial, we reversed his conviction for murder and conspiracy to commit murder and affirmed his convictions on the weapons offenses. State v. Holman, No. A-1223-91 (App. Div. June 7, 1994). The Supreme Court denied the State's petition for certification. State v. Holman, 138 N.J. 265 (1994).
Defendant also claimed error in the trial court's refusal to permit him to call another assistant prosecutor, David Hancock. We found no error in the court's exclusion of Hancock's testimony. State v. Holman, No. A-1223-91 (App. Div. June 7, 1994) slip op. at 8.
When defendant was retried in 1996, he refused to leave the holding cell and the trial proceeded in his absence. The jury convicted him of murder and conspiracy to commit murder in the death of Lee. No direct appeal was filed from that conviction. Instead in 2008, defendant filed his first petition for post-conviction relief alleging his trial counsel was ineffective for failing to file an appeal on his behalf. The same judge who presided over defendant's second trial denied the petition after hearing argument. Finding the factual record inadequate to definitively determine whether defendant was denied his right to appellate review due to ineffective assistance of counsel, we reversed and remanded for further fact finding and legal analysis. State v. Holman, No. A-4774-09 (App. Div. Nov. 17, 2011).
On the remand, defendant testified he wished to appeal his 1996 conviction. The State elected not to call defendant's defense attorney to explain what he did or did not do with regard to filing an appeal on defendant's behalf. With no evidence to counter defendant's contention that he desired counsel to file an appeal, the trial judge granted defendant's petition and allowed defendant the opportunity to file this appeal nunc pro tunc, relying on Simmons v. Beyer, 44 F.3d 1160 (3d Cir.), cert. denied, 516 U.S. 905, 116 S. Ct. 271, 133 L. Ed. 2d 192 (1995).
Following defendant's motion to appear on his own behalf and without counsel in this court, we remanded to the trial court for a hearing pursuant to State v. Coon, 314 N.J. Super. 426 (App. Div.), certif. denied, 157 N.J. 543 (1998). The trial court having considered defendant's request to proceed in accordance with Coon, and having granted that request, we entered an order on January 16, 2014, permitting defendant to proceed as a self-represented litigant in this appeal.
He has raised four points in support of his claim that his 1996 conviction should be reversed.
POINT I
INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
PROSECUTORIAL MISCONDUCT.
POINT III
JUDICIAL ABUSE OF DISCRETION.
POINT IV
Having considered each of these arguments in light of the record and the applicable law, we find them to be utterly without merit, and thus affirm his conviction.THE JUDGE'S COMMENT AND CHARGE TO THE JURY WERE IMPROPER AND PREJUDICIAL, THUS DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
In his first point, defendant contends his counsel was ineffective in "simply rest[ing] after the prosecution presented its case," notwithstanding "the onus of a duress defense [is placed] squarely on the defendant's shoulders." Defendant further argues that "[c]ounsel seemed to one-up his own legal eccentricities when he ceded two crucial defense witnesses to the prosecution." He contends his counsel's failure to call assistant prosecutors Clark and Hancock in his case constituted ineffective assistance, and that counsel's "lackluster, limited cross-examination [when the prosecution called those witnesses in rebuttal] . . . was fruitless at best and expositive of nothing except his dismal ineptitude."
Although we defer ineffective assistance of counsel claims to a PCR proceeding when the trial record is inadequate to resolve the issue, see State v. Preciose, 129 N.J. 451, 460-62 (1992), we do not do so here because the record is plainly sufficient for resolution of the claim. To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record.
We reversed defendant's 1991 convictions for murder and conspiracy to commit murder because the trial judge had precluded him from calling Assistant Prosecutor Eleanor Clark in aid of his defense of duress. We found that "as an authorized representative of the State, [Clark] had vouched for the reliability of her information . . . that Holman was in danger from the Pretlow organization and consequently in need of protection," and that those "adoptive admissions are admissible against the State in the present proceeding as vicarious admissions." Holman, supra, No. A-1223-91, slip op. at 9. We agreed, however, with the trial judge that
any information that could have been elicited from Assistant Prosecutor Hancock at trial would have been only marginally relevant and would have been prejudicial to Holman. It would have corroborated Holman's testimony that members of the Pretlow organization were capable of murdering people who stood in their way. But it would have portrayed Holman as a potential source of retaliation against witnesses rather than as its object.
[Id. at 8.]
We concluded that although
Holman's defense of duress may have had only limited plausibility[, n]onetheless, defendant was entitled to submit it to the jury with all of the evidence in his favor that he could muster, provided that the evidence was competent and relevant. Since the excluded testimony of Assistant Prosecutor Clark met those criteria, its exclusion was prejudicial error.
[Id. at 10-11.]
Contrary to defendant's contention, his counsel in the 1996 retrial did not simply rest after the State concluded its case. Counsel introduced the transcript of Clark's application for a protective order in which she recounted the danger to Holman from the Pretlow organization. Counsel did not move the Hancock transcript into evidence for the obvious reason that Hancock was seeking an order to protect witnesses from possible retaliation by defendant.
In order to counter Clark's admission that the State believed defendant was in danger from the Pretlow organization and in need of protection, the State called both Clark and Hancock in rebuttal. As might be expected, both testified favorably to the State. Clark testified that her efforts to protect defendant from the Pretlow organization were based on his willingness to cooperate with the State, which cooperation she intimated never materialized. She explained that despite the evidence that defendant was the shooter who killed Mario Lee, the prosecutor's office was willing to make a deal with him in order to secure convictions against individuals higher in the Pretlow organization. Hancock testified he sought a protective order to shield eyewitnesses to Lee's shooting from retaliation by defendant and his co-defendant Corey Grant.
Defense counsel on cross-examination got Clark to concede several times that "anybody who cooperated with law enforcement and was willing to testify against [the Pretlow organization] would be assassinated." He got Hancock to admit that defendant maintained that Corey Grant had coerced him into shooting Lee by making threats against his life and that Hancock had reported that to the judge in connection with his application for the protective order. Counsel argued forcefully in summation that defendant had been drawn into the Pretlow organization's orbit by his addiction to drugs, that he was not part of the gang, and that he had been coerced into participating in Grant's efforts to "scare" Lee to stop selling drugs on the Pretlow's turf by threats against defendant's life and the lives of his family. Counsel used the prosecutors' testimony to illustrate the magnitude of the threat and the genuineness of defendant's fear of the Pretlows.
Defendant has not shown how his counsel's choice to bring those points to the attention of the jury through introduction of Clark's prior sworn statements and cross-examination of the State's witnesses in rebuttal, instead of by calling them in his case, was objectively unreasonable. Even assuming arguendo that this was a strategic miscalculation by trial counsel, it would not result in the reversal of defendant's conviction unless he could show that it deprived him of a fair trial. State v. Buonadonna, 122 N.J. 22, 42 (1991). Defense counsel's decisions as to trial strategy are "virtually unchallengeable" if made following reasonable investigation. State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).
Defendant's counsel at the retrial made an obvious strategic choice to rely on Clark's admissions in the prior transcript rather than presenting her as a witness and allowing her to explain the admissions away, as she tried to do when called as a witness by the State in rebuttal. That decision is entitled to deference, State v. Arthur, 184 N.J. 307, 320-21 (2005), and thus "virtually unchallengeable" on this appeal. Savage, supra, 120 N.J. at 617-18. Further, defendant has not explained what more could have been accomplished through calling the prosecutors in his case or how the failure to do so materially contributed to his conviction. See Fritz, supra, 105 N.J. at 58.
Because we cannot deem counsel's choice to rely on the transcript of Clark's admissions and to not call Hancock as falling below an objective standard of reasonableness, and cannot discern how the result of the proceeding would have been different had he called the prosecutors as witnesses, particularly in light of the fact that both testified at the retrial, we reject his claims of ineffective assistance of counsel.
In his second point, defendant contends "that the prosecutor intentionally circumvented this [c]ourt's holding that two former prosecutors be allowed to testify for the defense." He speculates that "[t]he [S]tate had to have entered into an agreement with defense counsel whereby the only two defense witnesses were enlisted on the side of the prosecution." He further argues that the prosecutor "did not rest on his questionable laurels with just defense witnesses, but he also paid a [S]tate witness for testimony. Although the prosecutor aired this before the jury, it nonetheless stank to the heavens."
We have already addressed defendant's contentions regarding the testimony of prosecutors Clark and Hancock, and specifically defense counsel's decision to rely on the transcript of Clark's admissions and to not call Hancock. We cannot agree that the prosecutor's decision to call both Clark and Hancock in rebuttal was in any way a circumvention of our holding that it was error to have precluded defendant from calling Clark as a witness in his first trial.
Rebuttal evidence is permissible to contradict a new subject introduced in the defense case. State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 468 (2000). When defense counsel determined to put in the Clark transcript, it was reasonable for the State to seek to counter that evidence, and the judge did not abuse his wide discretion in allowing the prosecutor to call Clark and Hancock to address the issue in rebuttal. See id. at 418-19. We reject defendant's speculation that defense counsel "had to have entered" into some sort of agreement with the prosecutor as specious.
Defendant's argument that the prosecutor "paid a [S]tate witness for testimony" apparently refers to the prosecutor's colloquy with a witness who formerly worked as a desk clerk at the Irvington Motor Lodge. At the conclusion of the witness's testimony, the prosecutor asked whether the witness had appeared in court the day before and not testified. The witness said he had and further agreed with the prosecutor that the witness had complained about the financial hardship the two days had worked on him. The prosecutor then asked: "And did I tell you yesterday afternoon that my office would pay your salary for two days since you had to wait around?" The witness responded, "Yes." Leading the prosecutor to ask: "Are you changing any of your testimony because my office is paying your salary for bringing you here for two days," to which the witness responded, "No." We deem defendant's argument that this represented the prosecutor having "paid" a witness for testimony to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In his statement to the police, defendant said he went to the Irvington Motor Lodge with Corey Grant and "a hooker" after the shooting. The State used that statement and the motel records to discredit defendant's account that he was coerced by Grant into participating in Lee's murder and to instead show he was a willing confederate.
Defendant's argument that the court deprived him of his Sixth Amendment right to participate in his trial does not require extended comment. The State and federal constitutions guarantee a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "Essential to that guarantee is the right of the accused to be present in the courtroom at every stage of the trial." State v. Luna, 193 N.J. 202, 209-10 (2007). Of course, "[t]he right to be present at trial is not absolute. Otherwise, defendants could halt trials simply by absenting themselves." Id. at 210 (citing Diaz v. United States, 223 U.S. 442, 458, 32 S. Ct. 250, 255, 56 L. Ed. 500, 506 (1912)). Our Supreme Court has held in interpreting Rule 3:16(b), which provides that a trial may be held in absentia when a defendant explicitly or implicitly waives the right to be present, that where a defendant has not expressly waived his right to be present on the record, "the touchstone is whether a defendant's conduct reveals a knowing, voluntary, and unjustified absence." Ibid.
The trial court explained defendant's refusal to appear for his retrial in painstaking detail several times on the record. Defendant was in State prison at the time of his 1996 retrial. He was transported to the Union County jail for trial. When he appeared, he complained he was without appropriate clothes in which to appear before the jury. The court adjourned the trial for a day to allow defendant to secure appropriate attire. See State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988). Defendant was provided with clothes that afternoon. Notwithstanding, defendant still refused to appear for trial the following morning, claiming he had not been provided discovery and was thus unprepared.
The judge directed defense counsel to meet with defendant at the jail to try and convince him to appear, and also to advise that should he elect not to appear, the trial would proceed in his absence. The judge placed on the record that while counsel was on his way to meet with defendant, the judge received a call from the jail that defendant "was threatening to kill anybody that came near his cell." Defendant's counsel subsequently reported on the record that defendant told him "he was not willing to come to court" and that "[h]e said go ahead, do the trial without me."
Although the court inquired of defendant through counsel each day as to whether defendant had changed his mind and would agree to participate in his trial, defendant continued his refusal to appear. Indeed, defense counsel advised the court on the second day of trial that defendant wished to be returned to his cell in Trenton. Defendant's counsel represented that defendant claimed to have been beaten in the Union County jail at some point in the past and that defendant did not want to remain there. Defendant's counsel, although anxious to have defendant transferred out of the jail for his safety, asked the court to arrange for defendant to be transferred to a nearby county jail, instead of to Trenton, so that he might "continue to try and convince him to appear for this trial."
The court accommodated defendant and arranged to have him transferred to the Hudson County jail for the duration of the trial. The court also noted that defendant had on another occasion refused to participate in a trial, and was tried in absentia. The jury in that matter convicted defendant on one count as charged, convicted him of a lesser-included offense of another, acquitted him on a third count and could not come to a verdict on the fourth count. State v. Holman, No. A-4664-00 (App. Div. May 17, 2002).
Having reviewed the transcripts of defendant's retrial, we are satisfied that the record conclusively establishes that "defendant's conduct reveals a knowing, voluntary, and unjustified absence," Luna, supra, 193 N.J. at 210, and his claims that the trial judge deprived him of his Sixth Amendment right to appear at trial and "to further thwart defendant's access . . . ordered him from the county of jurisdiction (Union) to another county (Hudson) while his trial was in progress" to be utterly without merit.
We reject defendant's claim that the judge's charge to the jury "was neither clear nor accurate with respect to the definition of murder and the applicability of duress." The judge delivered the model charges for murder and duress. Having reviewed the charge, we find it a clear and correct expression of the relevant legal principles on the facts of the case. Nothing more was required. See State v. Angvoy, 32 9 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).
Finally, we reject defendant's argument that the judge ran afoul of State v. Czachor, 82 N.J. 392, 404-06 (1980) (disapproving use of an Allen charge in criminal cases), in imposing a "deadline" for the jury to wind up its deliberations.
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). --------
Just before the jury was impaneled at the start of the retrial, the judge responded to a prior question of a juror by saying, "Up to 20 days. We spoke to New York." After the juror thanked him for the response, the judge quipped, "If you're here 20 days from now[,] I'm going to commit suicide." We do not disagree generally with defendant's observation that "[j]udges' voices are inevitably equated with the law. When they speak ex cathedra, their commandments are infallible for the nonce." Nevertheless, we cannot find that this clearly factitious comment could have in any way applied blunt or subtle pressure on the deliberations of a jury that had not even begun to hear the evidence in the case.
Upon review of each of defendant's alleged points of error, we reject his contention that any error, either singly or in combination, could be deemed to have rendered his trial unfair. See State v. Orecchio, 16 N.J. 125, 129 (1954). No further discussion of any particular claim is warranted. 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