Opinion
DOCKET NO. A-3774-13T2
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID MACKOON, a/k/a MIKE MACKOON, a/k/a MICHAEL MACKOON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Leone. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1276. Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Mackoon appeals the trial judge's July 30, 2013 denial of his petition for post-conviction relief (PCR). We affirm.
I.
The facts proven at trial were set forth in our opinion denying defendant's direct appeal. State v. Mackoon, No. A-4227-06 (App. Div. July 21, 2009), certif. denied, 201 N.J. 154 (2010). It is sufficient to summarize the facts here. Defendant was convicted of charges arising from the masked, armed, smash-and-grab robberies of three jewelry stores. All three robberies were recorded by surveillance cameras.
First, on July 3, 2002, three men robbed Goldenland Jewelry in Bloomfield of $30,000 in jewelry. After assaulting the owner, they ran out of the store to a double-parked getaway car driven by defendant.
Second, on December 18, 2002, several men robbed All Page Jewelry in East Orange of $20,000 in jewelry. One robber, later identified as defendant, went over the counter and detained the employees at gunpoint while other robbers broke into the glass jewelry cabinets. The employees noted that defendant was light-skinned.
Third, on October 29, 2003, three men robbed Hot Stop Jewelry in Orange. They fled to a double-parked getaway car driven by defendant.
When defendant was arrested in 2004, he had on his person a watch from the third robbery and a ski mask. In 2005, defendant sent a letter to Mark Bowers telling him not to cooperate with the State and threatening Derrick Knight for cooperating.
Knight and Salim Amir testified as State witnesses at trial. Amir testified that he conspired with defendant and Knight to commit the third robbery and that defendant drove the men to and from the robbery.
Knight testified as follows. Defendant recruited him to commit all three robberies and recruited the varying other participants in each robbery, including Bowers and Amir. In the first and third robbery defendant drove the getaway cars. In the second robbery defendant was the "lead man"; the first man into the store who detained the employees. Knight watched the surveillance video from the second robbery and identified defendant. Knight confirmed defendant had "short arms" but could still hold a gun and drive a car.
The State also called Dr. Zafer Termanini as an expert in orthopedic surgery and biomechanics. Dr. Termanini testified his analysis of the surveillance video from the second robbery showed the lead man had deformed arms. Dr. Termanini testified he examined defendant and found he had a congenital deformity in both arms limiting the movement of his hands. Dr. Termanini opined that the person in the surveillance video of the second robbery had limited movements consistent with a person with defendant's condition.
The jury convicted defendant of three counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and second-degree tampering with a witness, N.J.S.A. 2C:28-5. In addition, with regard to the second robbery, the jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
The trial judge sentenced defendant to a total of thirty years in prison with an 85% period of parole ineligibility for first-degree robbery, merged two counts, and imposed concurrent terms on the remaining counts. We affirmed, and the Supreme Court denied certification in 2010.
Defendant filed his PCR petition in 2010. The PCR judge, who was the same judge who presided over defendant's trial, heard oral argument. He then issued a written opinion finding defendant had not shown a prima facie case to merit an evidentiary hearing. On appeal, defendant argues the following:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Call An Expert Witness On Defendant's Behalf At Trial.
C. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Object To The Prosecutor's Inappropriate Comments During Summation.
D. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied The Effective Assistance Of Trial Counsel.
II.
As the PCR court did not hold an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The "defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
III.
Defendant asserts that trial counsel did not thoroughly investigate the case because he did not call an expert witness to combat Dr. Termanini's testimony. Defendant submitted to the PCR court a letter from a forensic pathologist, Dr. Mark Taff. Dr. Taff opined that the video surveillance evidence was "of suboptimal evidentiary/technological value for purposes of medical diagnostic identification," and gave eleven reasons for his opinion.
Examination of Dr. Taff's reasons show he would have added little, if any, new and relevant information. He noted the surveillance video was in black and white and was taken from above, which would have been obvious to the jurors who viewed the video and still photos from the video. He noted the video was "extremely blurry," but that too was obvious to the jury. Indeed, Dr. Termanini testified the video was "very, very blurry" and of "very poor quality," so he used a photo processor to enhance the video and view it frame by frame.
Dr. Taff opined the video could not be used to identify the person's age, sex, race, height, weight, eye color, fingerprints, dental impressions, or other "standard, time-honored" identification criteria. However, that did not rebut Dr. Termanini's testimony, as he did not claim to be using any of those techniques to identify the condition of the person in the video.
Instead, Dr. Termanini noted that the person had a deformity of both upper extremities, that his hands appeared fixed with limited movement, and that as a result he was unable to vault over the jewelry counter but had to slide across it. Dr. Termanini examined defendant and found that he had a congenital deformity of both upper extremities as the thicker radius bone in his forearms never developed; that he had surgery to fuse his wrists to the thinner ulna bone, stabilizing his wrist but eliminating most of the movement of his hands; and that as a result he would have to slide across the counter.
On direct appeal, we upheld the admission of Dr. Termanini's testimony, finding he "had the requisite qualifications to offer his opinion that the condition he observed during a physical examination of defendant was consistent with the movements of the person depicted in the surveillance tape of the second robbery sliding across a counter in a jewelry store." Mackoon, supra, slip op. at 21. The judge observed that Dr. Termanini's testimony about the surveillance video was "in fact consistent with the images" on the video, which showed the person going over the counter "without the use of his hands" in a manner "consistent with someone without the full use of his arms."
Dr. Taff stated that "[t]he length of the subject's arm cannot be established from viewing the film" and that "[i]t is impossible to tell if the upper extremities are of equal or different lengths and/or development" or "if any limb differences are of congenital or acquired (post-traumatic) origin(s)." However, Dr. Termanini did not measure or rely on the length of the upper extremities but instead relied on the limitations on defendant's movement. Dr. Termanini believed the deformities were congenital, but conceded he did not know what, if any, subsequent injuries defendant might have sustained.
Dr. Taff stated "[i]t is unclear if the subject's right hand is empty or holding an object (e.g., gun)." Dr. Termanini said he could see the person was holding something that looked like a weapon. But that was irrelevant to whether the person's limited movements were consistent with defendant's limited ability to move, particularly as defendant could hold a gun.
Dr. Taff's final reason for his opinion was that "[a]lthough the subject in the film appears to be human, the possibility of an animal dressed in human clothing cannot be completely ruled out." The idea that an animal wearing clothes was filmed robbing a jewelry store illustrates the lack of utility of Dr. Taff's opinion.
Moreover, trial counsel made many of the points raised by Dr. Taff by cross-examining Dr. Termanini. Counsel confronted Dr. Termanini regarding the very poor quality of the surveillance video. Counsel elicited that Dr. Termanini did not have access to defendant's medical records, did not know his medical history or view any x-rays, and did not measure defendant's arms. Counsel got Dr. Termanini to admit his entire analysis was based on a fifteen-minute examination of defendant and a few hours reviewing the video. Trial counsel also attempted to discredit Dr. Termanini's testimony by highlighting his fee. In his summation, trial counsel further attacked Dr. Termanini, calling him "a hired gun" and again highlighting the low quality of the video.
The judge observed that trial counsel "vigorously" cross-examined Dr. Termanini. The judge noted that "[a] retained expert witness would have offered little more than what [trial counsel] accomplished during cross-examination and summation: the argument that the video was of such poor quality that it should be disregarded." The judge correctly concluded defendant had not shown a reasonable probability the result would have been different if trial counsel called an expert witness.
Further, the surveillance video which Dr. Termanini based his testimony on was played for the jury twice, once during the State's direct examination and again during defense counsel's summation. Moreover, the judge properly instructed the jury that they were not bound by the expert's opinion and they were free to reject it if they found him not credible. Thus, the jury was able to make its own determination of whether the surveillance video conclusively showed that the subject in the video was defendant and whether Dr. Termanini was credible.
For all of these reasons, defendant fails to show a reasonable probability that the result of the trial would have been different had counsel called Dr. Taff as a competing expert witness. See Parker, supra, 212 N.J. at 279-80.
Because defendant failed to satisfy the second prong of the Strickland/Fritz test, his claim fails. "[A] defendant must satisfy both prongs of the Strickland/Fritz test." State v. Miller, 216 N.J. 40, 62 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). "Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citing Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
IV.
Defendant also claims trial counsel was ineffective for not objecting to the use of "I" in the prosecutor's summation. "We afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "'A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony.'" State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) (citation omitted), aff'd, 195 N.J. 493 (2008). "On the other hand, a prosecutor is free to 'argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility.'" Ibid. (citation omitted).
Defendant now focuses solely on one remark. The prosecutor, responding to defense counsel's attacks on the credibility of the cooperating robbers Knight and Amir, argued: "I submit to you that they are individuals who have been called by the State, and I will be speaking to you at some length about why I believe they are worthy of belief, but I urge you to recall that the State does not select them." The prosecutor then reviewed the evidence which she submitted showed Knight and Amir were credible. The prosecutor's arguments were thus "'based on the evidence'" and she drew "'reasonable inferences from th[e] evidence.'" State v. T.J.M., 220 N.J. 220, 236 (2015) (citation omitted). Furthermore, the prosecutor made clear she was making an argument from the facts by using the phrase "I submit," which is a proper "'method of prefacing an argument.'" State v. Cagno, 409 N.J. Super. 552, 604 (App. Div. 2009) (citation omitted), aff'd, 211 N.J. 488 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
The judge determined that, though this statement may have "bordered on an inappropriate personal opinion," this "single reference to personal belief, in the context of the rest of the prosecutor's comments discussing the witness's credibility, did not amount to a denial of [defendant's] right to a fair trial." We agree. Indeed the statement would have had the same meaning if the words "I believe" had been removed.
We have also reviewed the prosecutor's summation regarding the prosecutor's other uses of "I" identified in defendant's PCR brief. We find no basis for successful objection to those remarks, such as "I believe that you will recall," "I ask you to, if you find it appropriate to do so, consider," and "I'm arguing to you that his testimony is worthy of belief." The prosecutor's argument that "I think [Knight and Amir are] very different types of witnesses" was followed by "I submit" that Amir was not as bright as Knight and preceded by "you heard him testify."
The prosecutor's cited comments in summation were largely unobjectionable. In any event, as the judge found, defendant failed to show a reasonable probability that the result of the trial would have been different had trial counsel objected. Indeed, there is no reason to believe the use of "I" had any effect on the outcome of the trial. See State v. Chew, 150 N.J. 30, 83-84 (1997). Moreover, the trial court instructed the jury that remarks by counsel "are not evidence." "We presume the jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Thus, defense counsel was not ineffective for not objecting to the prosecutor's remarks.
In his PCR appeal, defendant did not renew his claim before the PCR court that trial counsel was ineffective for not properly presenting a request to sever the counts arising from each of the three robberies. --------
V.
The PCR court properly denied an evidentiary hearing. "A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim . . . will ultimately succeed on the merits." Ibid. Even "viewing the facts alleged in the light most favorable to the defendant" he failed to do so here. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION