Opinion
DOCKET NO. A-5844-13T1
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent v. PETER KLAH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-06-0681. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the trial court's June 30, 2014 order denying his petition for post-conviction relief (PCR). We affirm.
We previously related the facts in detail in our affirmance of defendant's conviction on direct appeal. State v. Klah, No. A-1271-10 (App. Div. June 28, 2012). We briefly summarize them again here. On October 24, 2006, Trenton Police Detective Matthew Przemieniecki and another officer were driving an unmarked police patrol car near the intersection of Monmouth and Clinton Streets in Trenton. Przemieniecki heard a gunshot and saw the muzzle flash of a gun being fired by defendant. After hearing the gunshot, he put his car in reverse to turn down Monmouth Street. He had an unobstructed view as he watched defendant fire a handgun at a man running down the sidewalk, who was later identified as the victim, C.B.
We use initials to protect the identity of the victim. --------
Przemieniecki observed defendant enter a silver Buick. He radioed other police, who came to the scene. Przemieniecki and other officers removed the driver and defendant from the vehicle.
After obtaining a search warrant, officers removed a handgun and marijuana from the car. Four shell casings were recovered from the sidewalk in the area where defendant had been standing. Another officer heard the radio call about the shots fired and headed to the area and observed a female screaming and pointing to a black male, later identified as C.B., lying dead in the street.
The handgun retrieved from the vehicle, the spent shell casings, and the bullet recovered from the victim's body were forwarded to the New Jersey State Police Laboratory. Detective James Ryan, a firearms expert employed as a supervisor in the New Jersey State Police ballistics unit, opined that the bullet and shell casings recovered from the crime scene were fired from the weapon found in the vehicle.
Following an unsuccessful motion to suppress and a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7; and third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7.
After appropriate mergers, the trial judge sentenced defendant to an aggregate minimum term of seventy-five years imprisonment, subject to parole ineligibility under the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2. Defendant appealed his conviction which we affirmed on June 28, 2012. Klah, supra. On January 16, 2013, the Supreme Court denied defendant's petition for certification. State v. Klah, 213 N.J. 567 (2013). Defendant subsequently filed a petition for PCR on February 2, 2013, which was denied without an evidentiary hearing in an order dated June 30, 2014. This appeal followed.
Defendant raises the following points on appeal:
POINT I - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WITH REGARD TO HIS CONTENTION THAT TRIAL COUNSEL SHOULD HAVE CALLED TWO WITNESSES CONCERNING DEFENDANT AND VICTIM'S FRIENDLY RELATIONSHIP AT THE TIME OF THE MURDER.
POINT II - DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF WHERE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RETAIN A BALLISTICS EXPERT.
POINT III - DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF DUE TO TRIAL COUNSEL'S FAILURE TO MOVE TO SEVER UNRELATED COUNTS IN THE INDICTMENT OR OBJECT TO N.J.R.E. 404(B) EVIDENCE, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE THIS ISSUE ON APPEAL.
POINT IV - DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT IN THE STATE'S OPENING AND CLOSING ARGUMENTS, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL.
We affirm substantially for the reasons expressed in Judge Mark Fleming's cogent, thoughtful opinion. We add the following comments and observations.
Because defendant asserts that the trial court erred in applying the law, we review the record de novo. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding on the merits under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697-98 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must first show that his counsel's performance fell below an objective standard of reasonableness. The standard of "reasonable competence" required of trial counsel, Fritz, supra, 105 N.J. at 60, "does not require the best of attorneys." State v. Davis, 116 N.J. 341, 351 (1989). Defendant must also show actual prejudice, that is, "a 'reasonable probability' that counsel's derelictions affected the outcome." State v. Rountree, 388 N.J. Super. 190, 106 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007) (quoting Fritz, supra, 105 N.J. at 58). "The error committed must be so serious as to undermine [the court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).
If a petitioner for PCR demonstrates a prima facie case for ineffective assistance of counsel, the trial court must hold an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992). To establish such a prima facie case, however, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the petitioner must allege facts "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6).
We agree that defendant failed to establish a prima facie case of ineffective assistance of counsel. Judge Fleming concluded that defendant's trial counsel made a strategic decision not to call the co-defendant and the victim's girlfriend at trial, which did not constitute deficient representation. We ascribe substantial deference to defense attorneys in choosing which witnesses to call at trial. See State v. Martini, 160 N.J. 248, 266 (1999) (explaining that courts do not question counsels' reasonable professional judgments). Accordingly, defendant's claim of ineffective assistance in this regard does not overcome the first prong of the Strickland/Fritz test because defendant has failed to demonstrate that his counsel was ineffective in this regard. Moreover, even if it were determined to be deficient performance, defendant has not demonstrated that he was prejudiced in the outcome of the proceedings by the omission of the testimony of these witnesses.
Defendant also cites his trial counsel's failure to retain a ballistics expert as ineffective assistance. The PCR judge permitted defendant to supplement the record with the report and findings of a ballistics expert. The expert corroborated several aspects of the State's analysis, and only questioned whether defendant could have been standing in the street where one of the officers identified he was standing. The PCR judge was nevertheless correct in rejecting defendant's argument. The report submitted to the PCR court confirmed the accuracy of the State's ballistics analysis, and that the testimony would have confirmed that the gun found in the vehicle was the murder weapon.
Defendant asserts that trial counsel should, however, have presented evidence contrary to the State's evidence. Defendant's reliance on State v. Bryant, 237 N.J. Super. 105, 106-107 (App. Div. 1998), for this proposition is inapposite. Bryant was a juvenile waiver case in which defense counsel was deemed ineffective for failing to present evidence at the waiver hearing with respect to the juvenile's potential for rehabilitation, a vital component of such a hearing. Id. at 107. In this case, there was no clear obligation for trial counsel to call an expert for the purpose of disputing the detective's testimony with regard to the shooter, especially when such an expert may have reinforced the state's theory that the gun found at defendant's feet was the murder weapon.
Defendant also asserts that both his trial and appellate counsel were ineffective because they failed to argue that the CDS counts should have been severed from the indictment for trial purposes, and because they failed to raise several issues under N.J.R.E. 404(b) at trial and on appeal; namely, that the failure to sever counts allows prejudicial evidence otherwise prohibited by N.J.R.E. 404(b). We agree with Judge Fleming's conclusion that joinder of the criminal charges was appropriate because each offense was criminal; the offenses arose from a similar episode; the prosecuting officer knew of the offenses at the time the trial commenced; and the offenses occurred within the jurisdiction of the same court. See State v. Williams, 172 N.J. at 361, 368 (2002) (explaining the appropriate test to determine whether joinder or severance is appropriate) (citing State v. Yoskowitz, 116 N.J. 679, 701 (1989)). Defendant does not successfully establish that a motion to sever the counts would have been successful, and defendant's motion for an evidentiary hearing in that regard was properly denied. State v. O'Neal, 190 N.J. 601, 618-19 (2007).
Defendant also contends that his counsel was ineffective for failing to object to statements that the State made during opening and closing arguments. The record does not demonstrate conduct "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (citations omitted). Finally, defendant asserts that the cumulative effect of all of the above listed errors deprived him of a fair trial. Because of our conclusions above, we conclude here that this argument lacks sufficient merit to warrant discussion in a written 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