Opinion
DOCKET NO. A-0028-11T4
06-20-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGGIE JACKSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-11-1121.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Reggie Jackson is serving a prison term of life plus forty years for murder, attempted murder, aggravated assault, and weapons offenses for shooting a rival drug dealer and the rival's friends, and for shooting to death a fifteen-year-old bystander. In this appeal, defendant contends that we should reverse the denial of his petition for post-conviction relief (PCR). He argues, among other things, that trial counsel was ineffective for failing to present an alibi defense and for failing to request a Wade hearing to challenge the reliability of the identification by two witnesses of a tattoo on his arm. Having considered these arguments, his other arguments, the record and controlling law, we affirm the denial of defendant's PCR petition.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
I.
A.
Late one night in July 1996 two men, one hooded, masked and armed with a shotgun, the other hooded and armed with a handgun, fired their weapons repeatedly at people on or near the front porch of a home on Graham Avenue in Paterson. Several adults were wounded, two severely, and a fifteen-year-old boy sitting on his bike on the street in front of the house was shot and killed. Four months later a Passaic County grand jury returned a thirty-one count indictment against defendant and co-defendant Emir Outlaw.
The charges in the indictment, the charges of which the jury found defendant guilty, and the State's trial proofs are thoroughly detailed in our opinion affirming the judgment of conviction on direct appeal, State v. Jackson, No. A-5416-98 (App. Div. March 21, 2001). In this opinion, we recount the facts relevant to the issues raised by defendant in his PCR petition.
Defendant was tried by himself. At his trial, the jury found him guilty of one count of knowing and purposeful murder, one count of conspiracy to commit murder, two counts of attempted murder, two counts of aggravated assault, and ten counts involving weapons offenses. The judge who presided over the trial merged the conspiracy count and eight of the weapons counts, and sentenced defendant on the remaining counts to an aggregate custodial term of life plus forty years with fifty years of parole ineligibility.
Defendant's case was severed from that of Outlaw, who was tried first, convicted of various crimes, and sentenced to an aggregate sentence of life with forty years of parole ineligibility. Id. at 2.
We affirmed defendant's judgment of conviction on direct appeal. State v. Jackson, No. A-5416-98 (App. Div. March 21, 2001). The Supreme Court denied certification. State v. Jackson, 171 N.J. 338 (2002).
The year after the Supreme Court denied certification, defendant filed a PCR petition. Later, he filed a pro se brief. The court appointed the Office of the Public Defender to assist defendant, and counsel filed an amended petition and a supplemental brief. Following five non-consecutive days of hearings on defendant's PCR petition, the court denied it. This appeal followed.
B.
The State's trial proofs as to how the shooting unfolded were indisputable. The shooting took place in front of a home on Graham Avenue in Paterson where Gloria Sexton lived with Kevin Jackson, a neighborhood drug dealer. On July 15, 1996, at approximately 11:00 p.m., Sexton was in her home and Jackson, Deshon Brisbon, David Staggers, and Antwan Wilson were socializing on or near the front porch. Tyeem Price, age fifteen, was sitting on his bike in front of Sexton's residence and talking to another individual. Jackson went into an alley by the house to retrieve marijuana from a stash. As he emerged, he saw two men dressed in black approaching the house. Both men were hooded. One wore a mask. The men pulled guns, one a handgun, the other a shotgun, and started shooting. Price was killed and Sexton and the others were wounded, Jackson and Staggers severely.
To distinguish between the victim, Kevin Jackson, and defendant, Reggie Jackson, we will refer to Kevin Jackson as "Jackson" and continue to refer to defendant Reggie Jackson as "defendant."
Although the foregoing facts were essentially uncontested, defendant disputed that he was one of the gunmen. The State presented both circumstantial and direct evidence that defendant and his longtime friend, Outlaw, were the shooters. To establish defendant's motive, the State presented evidence of several events that occurred in the weeks leading up to the shooting, events which we summarized in our previous opinion:
About two weeks prior to the shooting, Outlaw confronted Jackson about selling drugs near [the house on] Graham Avenue. Jackson was told that he was forbidden from dealing drugs in the area. Nevertheless, Jackson continued to sell drugs in the neighborhood. A few days later, defendant and Outlaw approached Jackson and accused him of stealing their "stash" of drugs. Jackson denied any involvement in the theft but defendant and Outlaw refused to believe him and again told Jackson that he was prohibited from dealing drugs in the area.
A few days later, Jackson was "jumped" by six or seven individuals in the area of Graham Avenue and beaten severely. Although unable to identify all seven individuals, Jackson did identify defendant and Outlaw as being among his assailants. About two days later, Jackson and Deshon Brisbon went to a liquor store located near Graham Avenue. While at the liquor store, they were confronted by defendant and Outlaw. Jackson was carrying a baseball bat in case he met the individuals who had beaten him. Defendant pulled a gun on Jackson and waved it in his face. In response, Jackson unsuccessfully tried to strike defendant with the bat.
A few days later, Jackson and Brisbon were at the liquor store again. This time Jackson was confronted by Outlaw and another individual. Brisbon testified that either Outlaw or the other man pulled a knife and a fight ensued between Jackson and Outlaw. Eventually, the melee ended with Outlaw and the other individual fleeing the scene.
Despite these various confrontations, Jackson continued to deal drugs on Graham Avenue.
[Jackson, supra, slip op. at 4-5.]
The State next presented evidence that defendant sought out Outlaw at Outlaw's residence not long before the shootings. Aveon Late, who lived in the same apartment as Outlaw and others, testified that at approximately 9:30 p.m. on the night of the shootings defendant came to her apartment looking for Outlaw. When Late told defendant that Outlaw was playing cards in an upstairs apartment, defendant left.
Lastly, the State presented eyewitness testimony from several victims and another witness who knew both defendant and Outlaw. Kevin Jackson recognized defendant as the person who shot him. Jackson testified at trial that defendant was the unmasked assailant. When asked how he recognized defendant as the man who shot him, Jackson replied, "[b]ecause I seen half his face. . . . I seen his face features." Jackson had known defendant since 1993 and had seen him frequently, often daily, during that time. Although defendant was wearing a hood around his face on the night of the shooting, and "had it like tight," Jackson "seen all around his face, his face features, his body structure." Jackson testified, "I knew it was him." On cross-examination, Jackson repeated that he could see defendant's forehead, eyes, nose, and mouth. Before paramedics removed Jackson from the scene, he told a detective, who said he was going to die, that defendant and Outlaw shot him.
Brisbon had known Outlaw most of their lives. He knew defendant from the neighborhood and described defendant as being "like a big brother" to Outlaw. When the shooting started, Brisbon ran through Sexton's home to an abandoned second-floor apartment where he looked through a window. Although he had not had a chance "to eyeball the person" who shot Jackson, Brisbon testified that the shooter resembled defendant in build and height.
Wilson also fled from the porch after the shooting began, but he saw "black writing" on one of the shooter's forearms. Although he said he didn't know which arm, he pointed to his right forearm when he made the comment. Wilson subsequently identified a photograph of a tattoo on defendant's left forearm that was identical to the tattoo he saw on the shooter's arm. Wilson, like Brisbon, testified that the shooter matched the body frame and cut of defendant.
Staggers had no recall of the shooting and the State did not call Gloria Sexton as a witness. The State did present the testimony of another witness, Quashetta Carter, who had witnessed the shooting from a house that was diagonally across the street from where the shooting occurred. Carter had known defendant for approximately one year before the shooting. Carter described a tattoo on defendant's lower arm as a symbol "7" with numbers around it. She knew defendant and co-defendant were best friends.
When the shooting started, Carter was sitting on a porch and a friend pushed her down. She looked up and saw two people dressed in black shooting at the house across and down the street. There was a street light where they were shooting and street lights at both corners of Graham and the nearby intersecting streets. She could see the shooters' arms and recognized defendant's tattoo. Based on the tattoo and the shooters' heights and builds, she concluded they were defendant and co-defendant Outlaw.
A couple of days after the shooting, Carter went to the police station and identified a photograph of the tattoo on defendant's arm. She signed and dated it. Although she testified at trial that she did not remember whether the tattoo was on the shooter's right or left arm, she also testified that the shooter with the tattoo was shooting the gun with his right arm extended. Defense counsel had defendant display the tattoo, which was on his left arm.
Defendant presented no witnesses in his defense. Although not introduced at trial, defendant had given a statement to the police when he surrendered two days after the shootings. He gave the statement in the presence of his attorney after waiving his Miranda rights. Defendant denied any involvement and claimed he was with a woman named Michelle Champion when the shooting occurred.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II.
Defendant raises the following points in his initial brief:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO THOROUGHLY INVESTIGATE AND PRESENT A VIABLE DEFENSE OF ALIBI AT TRIAL.
C. TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST A WADE HEARING TO SUPPRESS THE PRETRIAL IDENTIFICATIONS OF THE DEFENDANT'S TATTOO BY ANTWAN WILSON AND QUASHETTA CARTER.
D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT GLORIA SEXTON AS A POTENTIALLY EXCULPATORY WITNESS AT TRIAL.
E. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF BASED UPON THE CUMULATIVE EFFECT OF THE VARIOUS INSTANCES IN WHICH TRIAL COUNSEL
FAILED TO ADEQUATELY REPRESENT THE DEFENDANT.
Defendant presents the following points in his supplemental brief:
POINT I
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THERE WAS AN ACTUAL GAINING BY THE STATE OF INFORMATION PERTAINING TO DEFENDANT'S TRIAL PREPARATION AND DEFENSE STRATEGY IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 1 AND 10 OF THE NEW JERSEY CONSTITUTION.
POINT II
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE OTHER-CRIMES EVIDENCE ADMITTED AT TRIAL WAS NOT CLEAR AND CONVINCING AS REQUIRED BY THE THIRD PRONG OF [COFIELD] AND IN FACT VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION.
POINT III
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE ERRORS AND OMISSIONS COMMITTED BY DEFENSE COUNSEL IN FACT PREJUDICED THE DEFENSE AND DENIED DEFENDANT THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
(A) COUNSEL'S FAILURE TO CALL AS WITNESSES GLORIA SEXTON AND POLICE OFFICERS SELA AND PELOSI PREJUDICED THE DEFENSE.
(B) DEFENSE COUNSEL'S FAILURE TO CALL CREDIBLE ALIBI WITNESSES IRREPARABLY PREJUDICED THE DEFENSE.
(C) COUNSEL'S FAILURE TO IMPEACH STATE'S WITNESSES WITH THEIR PRIOR INCONSISTENT STATEMENTS AND PRIOR TRIAL TESTIMONY PREJUDICED THE DEFENSE.
(D) COUNSEL'S FAILURE TO APPLY FOR A [WADE] HEARING AND THE SUPPRESSION OF THE OUT-OF-COURT TATTOO IDENTIFICATIONS OF ANTWAN WILSON AND QUASHETTA CARTER PREJUDICED THE DEFENSE.
(E) COUNSEL PREJUDICED THE DEFENSE AND MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION WHEN HE DISCLOSED TO THE JURY THE TATTOO ON DEFENDANT'S LEFT FOREARM.
(F) COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT HERE IRREPARABLY PREJUDICED THE DEFENSE (NOT RAISED BELOW).
(G) THE CUMULATIVE EFFECT OF COUNSEL'S ERRORS, AS DESCRIBED ABOVE, PREJUDICED THE DEFENSE AND CAUSED A BREAKDOWN IN THE ADVERSARIAL PROCESS.
POINT IV
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION WHEN HIS ATTORNEY FAILED TO RAISE ON DIRECT APPEAL THE ISSUES RAISED ABOVE IN POINTS I AND II.
We begin by reviewing the principles that guide our review of appeals from orders denying PCR petitions. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). "Ultimately, a PCR petition is a defendant's last chance to challenge the 'fairness and reliability of a criminal verdict in our state system.'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). "If an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." Ibid.
To establish a PCR claim that trial counsel was constitutionally ineffective, a defendant must prove two elements: first, that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; 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, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
To prove the first element, a defendant must "overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities." Nash, supra, 212 N.J. at 542 (citation and internal quotation marks omitted). To prove the second element, a defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
A defendant must do more than make unsupported assertions to establish a prima facie ineffective-assistance claim, State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); he or she
must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.
[Ibid.]
Bearing these principles in mind, we turn to the first argument in defendant's initial brief: that trial counsel "fail[ed] to thoroughly investigate and present a viable defense of alibi at trial." To support his argument, defendant relies upon his and Michelle Champion's testimony at the PCR hearing. He has presented affidavits from no other witnesses. In addition to testifying that his attorney disregarded his instructions to interview Michelle Champion and his intention to assert an alibi defense, defendant testified that his defense was always alibi. He maintained during his testimony at the PCR hearing that it was the jury's function to determine whether his alibi was credible. On cross-examination, defendant stated:
[b]ut from this point, whether my alibi was credible or incredible is irrelevant because the jury didn't deliberate on my alibi. They never received my alibi. But today my alibi is the same as it was then. At 11:15 on July 15th, 1996 I was with my girlfriend. I was with Michelle Champion at her house sitting on the edge of her bed. That's my alibi.It is clear from Michelle Champion's testimony that she was not at her home, with defendant, at 11:15 p.m. when the shootings occurred.
According to Champion, in the summer of 1996 she was involved in a "casual" relationship with defendant; they "were friends and lovers." On the day of the shootings her car was in the shop. Since there wasn't much to do without the car, she and defendant stayed at her house all day. She testified, explicitly, that "all day" meant "[f]rom all day during the day hours, during school hours." After picking up her car during the afternoon, Champion and defendant returned to her home and remained there. Throughout the evening, Champion and defendant remained at her home, watching television and smoking.
That night, sometime after ten o'clock, Champion left the house to drive a friend to his girlfriend's home. Defendant remained at Champion's house. Champion took approximately ten or fifteen minutes to drive the friend to his destination. On her way home she stopped at a restaurant to buy hot wings, which took approximately fifteen more minutes. After buying the wings, it took Champion approximately six minutes to drive home.
On her way home, Champion saw "[a]mbulance lights[] [and] police lights" on Graham Avenue. It took her approximately three or four minutes to drive from Graham Avenue to her home. When she arrived, Jackson was where she had left him, in the same place, in the same position. He was dressed in a t-shirt and boxers, as he was when she left the house earlier.
Champion's testimony that Jackson never left her home on the night of the shooting was contradicted by the statement defendant had given to police two days after the shootings. The PCR court summarized defendant's statement:
On July 17, 1996, defendant, in the presence of his lawyer, [who was] not [his eventual trial lawyer], gave a voluntary statement to the police. Defendant placed himself with his girlfriend, Michelle Champion, at her house on 8th Avenue, since Sunday, the day before the shooting. He stated that on July 15, 1996, at about 10 p.m., Ms. Champion left her home, driving her Volvo. While she was out of the home, defendant claimed a friend, Ronald Colby, came over from Bergen Community College. He stated that Colby needed some literature for a history paper and had a conversation about a specific book, The Life and Times of Primordial Man. He claimed that he and Colby left Champion's house and drove to - - in Colby's green Honda Accord, to the home of another friend, Manuel Haywood at 85 North Day Street, East Orange.
Defendant indicated that Haywood, his wife and children were present. He stated that when Colby left East Orange - - that when he and Colby left East Orange, returning to Ms. Champion's residence - - strike that. He said - - he stated that he and Colby left East Orange, returning to Ms. Champion's residence. When he arrived, he stated several of Ms. Champion's children were present.
Thus, contrary to Champion's testimony that defendant was at her home during the absence, defendant told police that he had left her home and driven to another municipality with a friend. Champion's testimony was also contradicted by the trial testimony of Aveon Late who, as noted previously, testified that defendant stopped by her residence looking for Outlaw within two hours of the shootings.
Champion's brother, sister-in-law, and their two children also lived at Champion's house. They were present during the day and evening. She and defendant were on the second floor, and her brother and his family were on the first. Defendant provided no certifications from any of the people that were at Champion's home on the night the shootings occurred or from any of the people he encountered when, according to his statement to police, he ran an errand with a friend.
Based on the evidence presented by defendant and the State at the PCR hearing, the court concluded that defendant had failed to establish both elements of an ineffective-assistance claim. "Michelle Champion's missing alibi testimony is not a game changer for the defendant. [Defense counsel's] failure to call Michelle Champion as an alibi witness does not have sufficient probability to undermine the [c]ourt's confidence in the jury's verdict." We agree.
The burden of proving both elements of an ineffective-assistance claim is no different than the burden of proving any other PCR claim; a defendant "bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Here, defendant failed to do so.
The State's trial proofs included strong circumstantial evidence that defendant had a motive for shooting Jackson; testimony from a person who lived with Outlaw that defendant sought Outlaw out less than two hours before the shootings; and eyewitness identification testimony from people who were well-acquainted with defendant. Against those proofs, the PCR court had to balance the testimony of a single witness, defendant's girlfriend, whose testimony was contradicted by defendant's own statement as well as Late's trial testimony, and uncorroborated by any of several witnesses who defendant and Champion alleged were with them when the shootings occurred. Under those circumstances, we discern no basis for overturning the court's conclusion that defendant did not prove that there existed a reasonable probability that Champion's testimony would have affected the jury's verdict.
III.
We next consider defendant's second argument in his initial brief: that trial counsel was remiss for failing to request a Wade hearing to suppress the pretrial identifications of his tattoo by Antwan Wilson and Quashetta Carter. Defendant contends that because police showed a single photograph of his tattoo to these witnesses, the procedure was "inherently impermissibly suggestive on its face." Following the PCR hearing, the court rejected defendant's argument, as do we.
Assuming, as defendant asserts, that the principles underlying Wade are applicable to a tattoo, the trial court correctly determined that a Wade motion would have been unsuccessful. Before suppressing a pretrial identification procedure, a trial court must conclude that the procedure is both impermissibly suggestive and results in a substantial likelihood of an irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); State v. Herrera, 187 N.J. 493, 503-04 (2006); State v. Madison, 109 N.J. 223, 232-33 (1988).
In State v. Henderson, 208 N.J. 208, 288-93 (2011), our Supreme Court revised the standard for determining the admissibility of witness identification set forth in Manson and Madison, but applied its holding "to future cases only," with the exceptions of defendant Henderson and another defendant who was the subject of a companion case the Court decided the same day. Henderson, supra, 208 N.J. at 302.
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Carter and Wilson both had known defendant for a year or more before the shootings occurred. Both had seen his tattoo before that night. In fact, according to Carter's statement, defendant had told her "that it stood for something to do with [h]is Musl[i]m belief," but she could not remember the specific meaning. Wilson testified that he knew defendant was the shooter "[b]ecause there was nobody around that area with that type of tattoo." He had not seen that type of tattoo on other people.
Significantly, Carter told the police the day after the shootings that defendant and Outlaw were the shooters and that defendant had a tattoo. Similarly, Wilson told police within twenty-four hours of the shooting that one of the shooters had a tattoo on his arm and that he thought he could identify it if he saw it again. Thus, police later showed Carter and Wilson a photograph in response their initial statements. The police did not obtain the photograph of defendant's tattoo to prompt the witnesses to identify him.
In its decision denying the PCR petition, the court noted that
[t]he alleged adverse impact of . . . a single photograph of a tattoo is mitigated by the fact that both Carter and Wilson knew the defendant before July 15, 1996, and each knew the defendant wore a tattoo on his arm. Carter was familiar with the tattoos on defendant's arm, including one with the number seven. Wilson also testified as to the uniqueness of the defendant's tattoos.The court also determined that while the tattoo was a factor, it was not the only factor that led Carter and Wilson to identify defendant. Moreover, as the court pointed out, the eyewitness identification of defendant was compelling.
In view of Carter's and Wilson's acquaintance with defendant for at least a year before the shootings occurred, their familiarity with the tattoo on his arm, and the compelling eyewitness testimony of other witnesses, there is no basis for concluding either that a Wade motion would have been successful or that even in the absence of the photographic identification by Carter and Wilson of defendant's tattoo, the outcome of the trial probably would have been different. Stated differently, defendant has failed to establish the second Strickland element by a preponderance of the evidence.
IV.
The final substantive argument in defendant's initial brief - that trial counsel was ineffective for not presenting Gloria Sexton's testimony - is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant asserts that because Sexton told police that the man who shot Jackson was wearing a long-sleeved shirt, her testimony would have undermined that of Wilson and Carter, who could not have seen a tattoo on one shooter's arm if the shooter were wearing a long-sleeved shirt. As previously discussed, we find it improbable that the jury would have returned a different verdict even in the absence of the identification of defendant's tattoo. This is particularly so in view of defense counsel's somewhat dramatic revelation that defendant did not have a tattoo on his right forearm, as Wilson and Carter had testified.
More significantly, counsel's decision that Sexton could add nothing, and might be inclined to provide favorable testimony to one of the victims, was a sound strategic decision. As our Supreme Court has noted:
Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential."Counsel's decision not to call Sexton as a witness was entitled to highly deferential review by the PCR court. The court did not err when it determined that counsel's decision not to call Sexton was sound.
[State v. Arthur, 184 N.J. 307, 320-21 (2005) (citations omitted).]
More importantly, there is no significant likelihood that Sexton's testimony, even if contrary in part to testimony given by eyewitnesses, would have affected the trial's outcome.
Defendant's final point in his initial brief - that the court erred by denying his petition in view of the cumulative impact of trial counsel's errors - as well as the points raised in defendant's supplemental brief, are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
In his first point, defendant contends that the State gained insight into his trial strategy by orchestrating the seizure of letters he had composed to his attorney while he was in jail awaiting trial. The circumstances are set forth in the trial court's opinion suppressing the State's use of the evidence. State v. Jackson, 321 N.J. Super. 365 (Law Div. 1999). The information obtained by the State involved defendant's alibi defense. Id. at 371. Defense counsel successfully moved to suppress it. Id. at 383. It is clear from trial counsel's testimony at the PCR hearing that the evidence played no role in counsel not presenting an alibi defense. Defendant's argument to the contrary consists of unsupported, conclusory assertions.
The "other crimes" evidence that defendant discusses in Point II of his supplemental brief was admissible to show his motive for the shootings. The arguments in Point III of defendant's supplemental brief are either unsupported by affidavits of witnesses, duplicative of the arguments in his initial brief, or indicative of little more than second-guessing trial counsel's trial tactics and strategy. And there is virtually no likelihood that a motion to dismiss the indictment based on the illegal search of his jail cell would have succeeded.
In Point IV of his supplemental brief, defendant alleges that appellate counsel was ineffective for failing "to raise on direct appeal the issues raised above in Points I and II." In view of our conclusion that defendant's arguments in Points I and II of his supplemental brief have no merit, appellate counsel could not have been ineffective for failing to raise them.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION