Opinion
DOCKET NO. A-1518-13T1
07-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NAEEM MITCHELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0888. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Naeem Mitchell appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted by a jury of second-degree aggravated assault and unlawful weapons possession after shooting at four, and injuring two, Newark policemen.
Defendant alleges ineffective assistance of counsel resulting from trial counsel's failure to argue the defense of intoxication at trial, and to more strenuously object, use peremptory challenges, or request a mistrial when two jurors disclosed that they were neighbors after voir dire but before swearing in. In his pro se brief, defendant additionally asserts that the closure of the court during jury selection and heightened security measures during trial amounted to deficient representation by trial and appellate counsel, as well as harmful trial error.
Judge Michael L. Ravin, who presided over both the trial and heard the PCR motion, concluded that these issues fell within counsel's discretion, that the defense of intoxication was inapplicable to defendant's charges in any event, and that the courtroom closure procedures were appropriate.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO UTILIZE AN INTOXICATION DEFENSE WHICH WOULD NOT ONLY HAVE NEGATED THE REQUISITE MENTAL STATES EMBODIED IN COUNTS I, III, V AND VII CHARGING ATTEMPTED MURDER, BUT ALSO THE REQUISITE MENTAL STATES EMBODIED IN COUNTS II, IV, VI AND VIII CHARGING SECOND DEGREE AGGRAVATED ASSAULT BY ATTEMPTING TO CAUSE SERIOUS BODILY INJURY.
C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE REMOVAL OF JUROR NO. 2 AND JUROR NO. 9 FROM THE JURY PANEL, TO UTILIZE TWO PEREMPTORY CHALLENGES TO EXCUSE THE TWO JURORS IF HER REQUEST WAS DENIED BY THE TRIAL COURT, OR TO REQUEST A MISTRIAL IN THE EVENT HER REQUEST TO UTILIZE TWO PEREMPTORY CHALLENGES WAS DENIED.
In his pro se supplemental brief, argues:
POINT I
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO A PUBLIC TRIAL.
POINT II
DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT III
DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV
THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING.
I.
Just after midnight on September 24, 2005, Newark Police Officers Edward Vernotica and Anthony Rawa were on patrol in uniform near the Seth Boyden projects off Frelinghuysen Avenue. The projects are known as a high-crime area where the Bloods have a significant presence.
As the officers pulled into the courtyard of a building on Center Terrace, they observed defendant dressed in a heavy, three-quarter-length camouflage Army coat and black leather gloves. Defendant looked directly at the officers, then entered the building. The officers thought defendant's dress was unusual, considering the warm evening with temperatures in the 80's. Concerned that he might be concealing a weapon or drugs under the coat, the officers shut off the lights of their vehicle, positioned it near the entrance, and waited. Seconds later, defendant stepped back out of the entrance with what appeared to be a handgun in his right hand, and then "darted back inside."
The officers drew their weapons and entered the building. Vernotica shouted that they were Newark police and instructed defendant to drop the weapon. Although they could not see defendant, the officers heard footsteps running up to the second floor. As Rawa radioed dispatch, both officers slowly advanced to the second floor. Vernotica again identified himself and told defendant twice to drop the gun. The officers then heard footsteps running up to the third floor. When Vernotica called out for the third time, he heard someone trying to open a door on the third-floor landing.
Vernotica put out his right arm to block Rawa's path and told him, "I just have a bad feeling." At that moment, a gunshot rang out from the third-floor landing and Vernotica felt a "burning sensation" on his right wrist. He later learned he had been struck by a bullet. Rawa ran to the first floor to call for backup, and Vernotica remained on the second-floor landing. Vernotica then heard defendant shout, "Come on up. I got more where that came from. I'm gonna kill me two cops tonight. Come on up." Defendant continued to taunt the officers, stating, "Come on up, I still got something for you," and "Come on up, mother fuckers, I have something for you." Both officers heard defendant racking his gun.
Because Rawa was having trouble with his radio, Vernotica descended the stairs to assist him. Soon after, Sergeant Arthur Jorge of the South District and Patrolman Ronald Polhill of the Emergency Service Unit arrived and met them on the first floor. The four officers began to climb the stairs when another shot rang out, striking Polhill and causing him to fall down the stairs onto the landing. Officers Jorge and Rawa pulled Polhill to safety while Vernotica, observing a hand grasping a gun over the third-floor railing, shot at the hand and heard defendant moan.
Vernotica called out to defendant "enough's enough . . . somebody's gonna get killed, you already shot at two cops . . . . Give up, it's over with." Defendant initially refused but when Vernotica told defendant that no one would hurt him, he said that he had been shot in the hand, and provided his name, age, and address. Vernotica continued to talk to defendant, who eventually threw the gun down and was arrested.
Vernotica was treated for a "graze wound" and "abrasion" on his forearm. Although Rawa received no injuries, he noticed a hole in his work boot later that evening that had not been there prior.
At trial, defendant testified that he was living at Seth Boyden Terrace, and visiting friends at the building next door on the night of September 24, 2005. He left when he received a call from a female friend named Angie, who asked him to come to her apartment nearby. During the three-minute walk, defendant passed a marked squad car with its lights on. Defendant noted that the vehicle's presence was common; police were posted there "every day, morning, noon and night."
Angie told defendant that she had gotten into a "heated argument" with some guys outside the building, who "had pulled a weapon out on her and she was scared." Defendant told her to return to her apartment and he would "take care of it."
Defendant closed the entrance to 105 Center Terrace by removing the cinder block holding the door open, so he could search the building for "weapons [or] anything" else that might hurt Angie. In a black plastic bag under the radiator near the entrance, defendant found a handgun, bullets, and black gloves. He put the gloves on to avoid touching the weapon, put the bullets in his coat pocket, and went to Angie's apartment to tell her he found a gun.
Before reaching Angie's apartment, however, defendant heard someone opening the entrance door "in a quiet sneaky type of manner." Thinking it was the men who had bothered Angie, defendant became "scared" and "paranoid," and began quietly hurrying upstairs, taking the steps two at a time. As he ascended the stairs, defendant shot twice at the floor of the second-floor landing, hoping to "keep whoever was approaching up the stairs away from [him.]" Defendant could not see anyone on the stairs, but continued to hear footsteps coming up toward him.
Defendant then noticed that his hand was bleeding and his gun had jammed. Looking out the window, defendant saw several patrol cars and realized his pursuers were police. After being promised he wouldn't get hurt, defendant turned over the bullets, clip, and gun, got on his knees and put his hands behind his head, and was arrested by four officers.
A grand jury sitting in Essex County returned an indictment charging defendant with first-degree attempted murder against four officers, N.J.S.A. 2C:5-1 and 2C:11-3 (counts one, three, five, and seven); (2) second-degree aggravated assault against four officers, N.J.S.A. 2C:12-1(b)(1) (counts two, four, six, and eight); (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); and (4) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten). The grand jury also returned a separate indictment charging defendant with one count of second-degree possession of a handgun by certain convicted persons not to have weapons, N.J.S.A. 2C:39-7(b).
The jury found defendant guilty of second-degree aggravated assault against officers Rawa and Polhill, and the two weapons charges, but not guilty of the attempted murder of officers Rawa, Vernotica, and Jorge, not guilty of aggravated assault against officers Vernotica and Jorge, and could not agree on a verdict as to the attempted murder of officer Polhill, such that a mistrial was declared. Defendant pled guilty to the sole count of the second indictment, certain convicted persons in possession of a weapon.
II.
A.
As a preliminary matter, the State urges that defendant's pro se arguments regarding the heightened security measures at trial and closure of the court during jury selection are procedurally barred by Rule 3:22-4(a), as they could reasonably have been raised in defendant's direct appeal.
Defendant claims that his Sixth Amendment right to a public trial was violated when the trial court closed jury selection to the public without placing its reasons on the record. Defendant provides no references to the record in support of his claim that the courtroom was in fact closed.
On the first day of jury selection, the court noted that "all parties, including the defendant" were present in court. In the two transcripts of jury selection, neither party nor the court mentioned closure of the courtroom, and defense counsel made no objections regarding same. There is no indication that any spectators attempted to observe and were turned away.
Because defendant has failed to allege sufficient facts in support of his legal argument to permit appellate review, we decline to consider this claim on the merits without needing to address the State's procedural argument. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (holding that an appellant has the "absolute duty to make unnecessary an independent examination of the record by the court").
B.
Defendant also alleges that his Sixth Amendment right to a public trial was violated when the trial court permitted heightened security measures during trial. The trial court ordered additional security measures only after conducting a hearing and finding that defendant was a Blood gang member and that there was concern about witness intimidation.
The Sixth Amendment guarantees a criminal defendant the right to a public trial. Waller v. Georgia, 467 U.S. 37, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31, 38 (1984). A defendant need not show specific prejudice arising from denial of the right; it is a "structural error" subject to automatic reversal. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1823, 144 L. Ed. 2d 35, 46 (1999). The right is not absolute, however, and may yield to countervailing interests where warranted. State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002). For a total court closure,
[t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
[Ibid. (quoting Waller, supra, 467 U.S. at 48, 104 S. Ct. at 2216, 81 L. Ed. 2d at 39).]
A trial judge has considerable discretion in controlling the courtroom and ensuring that security measures do not prejudice a defendant. State v. Zhu, 165 N.J. 544, 557 (2000). For a partial closure, a judge "is not restricted from imposing reasonable and . . . well-considered limitations on access to a trial in order to prevent situations which might impede the progress or fairness of the trial, as long as basic rights involved are not unduly infringed." Cuccio, supra, 350 N.J. Super. at 266.
Detective Anthony Cox of the Essex County Prosecutor's Office (ECPO) Gang Intelligence Unit testified that Newark's local Bloods gang, the Brick City Brims, have a "significant presence" in the Seth Boyden projects. Cox testified that defendant initially refused to answer questions about his gang affiliation, but eventually "stated I'm a B.C.B., Brick City Brim Blood." He described defendant's left forearm tattoo—the State of New Jersey with "B.C.B.S.B.P." on it—which is "used as an identifier to identify [the wearer] on the street or in jail as a Brick City Brim gang member." A September 24, 2005 gang intelligence report identifying defendant as a Brick City Brim member was viewed by the court but not moved into evidence. Cox also identified defendant as a Bloods gang member through confidential informants.
John Dough, the Chief of the Essex County Sheriff's Office (ECSO), discussed whether the jury could be taken to view the crime scene. Dough testified that the Seth Boyden projects were so dangerous that he could not guarantee the judge or jury's safety for a site visit, could not prevent intimidation, "stare-downs," or yelling from the community, and would require the judge and jury to wear bulletproof vests for a visit. The judge incorporated Chief Dough's hearing testimony in ruling on the courtroom closure during jury selection.
Essex County Sheriff Cristell Culpepper, who is in charge of security at the Essex County Courthouse and implemented the security measures outside the courtroom in this case, testified that because defendant is an admitted Bloods member, he is considered "both a high risk prisoner and an escape risk." Culpepper testified that "[w]henever we have a high risk court case in this building . . . [t]he first thing that we do is we check to see who is coming in and out of the courthouse and courtroom."
Culpepper "set up a post outside where [ECSO] check the people that are coming into the courtroom." Anyone desiring to enter the courtroom was asked to present photo ID, which was copied and "record-checked" by the ECSO. Anyone whose record-check returned an outstanding warrant was arrested before entering the courtroom. Law enforcement officers were required to present ID to enter and members of the media were present to observe.
Defendant concedes that these measures amounted to only a "partial closure," since they "bar[] only those would-be spectators who opted not to submit written identification," rather than a total closure excluding all persons other than court personnel. The judge noted that "these individuals were ultimately not excluded from the courtroom," with the exception of defendant's father, Christopher Rodriguez, who was arrested after his record had been checked.
The judge explained that the court's concern with defendant's affiliation with the Bloods "justified heightened security measures," which "may be required to safeguard against attempts to intimidate jurors and witnesses in the performance of their courtroom responsibilities." Relying on testimony regarding "the great potential for witness intimidation" in this case, the court found "that the measures taken [here] are appropriate measures to take. I've made the requisite balancing [of safety against defendant's right to a public trial]."
Defendant submits two affidavits from his then-girlfriend and his grandmother stating that defendant's friends and family were subjected "to higher security screening than the general public," law students and media were not subject to the same screening, and word of the heightened screening discouraged defendant's supporters from attending his trial.
The suggestion that others were dissuaded from attending is purely speculative. Even if true, it is not clear that narrowly-targeted heightened security measures could deprive defendant of a fair public trial when only his fugitive father was excluded.
We are satisfied that the trial court properly exercised its discretion to impose "reasonable" and "well-considered limitations on access" without infringing on defendant's constitutional rights. Cuccio, supra, 350 N.J. Super. at 266.
C.
Defendant alleges five claimed errors by his trial and appellate counsel. When reviewing the merits of a PCR petition, we must defer to "those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case[.]" State v. Taccetta, 200 N.J. 183, 194 (2009) (internal quotation marks omitted). We need not defer to the legal conclusions of the PCR court. Id. at 195.
Both the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution are construed to guarantee an accused the right to the effective assistance of counsel in a criminal proceeding. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's effective-assistance standard in New Jersey). To establish ineffective assistance of counsel under the Strickland-Fritz standard, a defendant must satisfy a two-prong test by a preponderance of the evidence, taking the facts in a light most favorable to the defendant. See State v. Preciose, 129 N.J. 451, 459 (1992).
A defendant must first demonstrate that counsel's performance was deficient—i.e., was below an objective standard of reasonableness—by showing that his representation "fell outside the wide range of professionally competent assistance." State v. Loftin, 191 N.J. 172, 198 (2007) (citations omitted). To do so, a defendant must overcome the "strong presumption" that counsel exercised "reasonable professional judgment" and "sound trial strategy." Ibid.
Second, the deficient performance must have "prejudiced" the defense, which requires a defendant to show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. O'Neil, 219 N.J. 598, 611 (2014)(citations omitted). A "reasonable probability" is "probability sufficient to undermine confidence in the outcome" of the proceeding. Ibid.
Intoxication Defense
Defendant claims that trial counsel rendered ineffective assistance by failing to raise the defense of intoxication at trial. Defendant tested positive for PCP, cannabis, and amphetamines on September 24, 2005. He submitted a letter from Dr. Daniel Greenfield opining that "defense counsel could have enhanced her presentation of the case . . . through the testimony of a medical expert concerning the effects in general of the substances which Mr. Mitchell had in his body during the time of the incident in question of September 24, 2005." Dr. Greenfield indicated these drugs "can affect the activities of affected and susceptible individuals," by causing "increased risk-taking behaviors, rapid speech and movement, and the like (for amphetamines), and psychosis, bizarre ideation, delusional thinking, hallucinations, and the like (for hallucinogens)."
Defendant's trial counsel submitted an affidavit expressly stating that she "did discuss a possible intoxication defense with [defendant] and [she] explained the benefits and disadvantages." Ultimately, counsel decided to pursue a self-defense strategy and defendant testified that he believed he was under attack and did not know he was shooting at police officers. The PCR court correctly refused to second-guess counsel's informed, "virtually unchallengeable" tactical trial strategy. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Defendant also argues that the PCR court erred in finding that he "suffered little prejudice from the failure to pursue an intoxication defense because voluntary intoxication is not a defense to the two counts of Aggravated Assault 2nd degree." Defendant argues that the code provision under which he was convicted requires a mental state of purposely or knowingly for aggravated assault, such that an intoxication defense would have been applicable.
Second-degree aggravated assault requires proof that the perpetrator "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1(b)(1). It is well-settled that voluntary intoxication is not a defense to crimes satisfied by a mental state of recklessness. State v. Bey, 112 N.J. 123, 145 (1988); State v. Warren, 104 N.J. 571, 576 (1986). Because N.J.S.A. 2C:12-1(b)(1) may be satisfied by a mental state of recklessness, the PCR court's determination that defendant failed to establish prejudice by pointing to counsel's failure to argue intoxication was correct.
Jurors #2 and #9
Defendant next claims trial counsel was ineffective in failing to more strenuously object to, use peremptory challenges on, or request a mistrial when jurors #2 and #9 disclosed that they are neighbors. We disagree.
Trial courts possess considerable discretion in determining the qualifications of prospective jurors. State v. Pennington, 119 N.J. 547, 588-89 (1990). A trial court's decision on the removal of a prospective juror for cause is thus reviewed for an abuse of that discretion. Ibid. In determining whether removal is warranted, the trial court should make a "probing inquiry" on the record into the juror irregularity, and rely on its own objective evaluation of the potential for prejudice. State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997). A juror's statement of impartiality is afforded "a great deal of weight," and a reviewing court defers to the trial court's ability to assess the juror's sincerity and credibility about his or her impartiality. State v. Singletary, 80 N.J. 55, 64 (1979).
Here, after voir dire but before swearing in, juror #2 disclosed that he lived across the street from juror #9. Both jurors #2 and #9 indicated that they did not initially recognize one another. When questioned by the court about his ability to be impartial, juror #2 responded,
I don't know about the ability to be fair, maybe just — I don't know. I don't know about fairness. It's more of a socialization and my wife and his mother already know that we're on here and I'm concerned about the possibility of exchanging information that might be — trying to be fair about this myself, you know — that might be injurious to the — the whole trial.
Defense counsel then moved to excuse juror #2. Upon further questioning by the court, juror #2 indicated that—although he might influence juror #9 as "an older neighbor" and "the guy who[se] grass [juror #9] used to cut"—he would not be influenced by juror #9.
Juror #9 flatly indicated that he would not be influenced by juror #2 "in the least bit." Satisfied that no prejudice would result, the trial court permitted both jurors to remain on the panel. The PCR court found that defendant failed to show that the jurors' "casual relationship" had any effect on the trial outcome; i.e., failed to show any prejudice.
We are satisfied that the trial court made the requisite "probing inquiry" into the nature of the jurors' relationship, and determined on its own that prejudice would not result. Scherzer, supra, 301 N.J. Super. at 488. The trial court did not abuse its discretion in permitting the jurors to remain, and trial counsel's failure to "more strenuously object" to his decision is not deficient representation. State v. Warlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
Defendant relies on State v. Cooper, 151 N.J. 326 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000), to assert that the jurors' failure to disclose their relationship during voir dire is presumptively prejudicial. In Cooper, the Court held that where a juror incorrectly omits potentially-prejudicial information during voir dire, the omission is presumptively prejudicial if the defendant "makes an affirmative showing" that "had he or she known of the omitted information, he or she would have exercised a peremptory challenge to excuse the juror." Cooper, supra, 151 N.J. at 349-50 (citing Wright v. Bernstein, 23 N.J. 284, 294 (1957)). Absent that showing, the juror's omission is harmless. Id. at 350. In establishing the presumption, the Court reasoned that "once the jury is sworn, the law presumes that every juror in a case is indifferent . . . or otherwise he would have been challenged for cause." Id. at 349 (citation omitted). In other words, a fair trial may be denied by the mere loss of the opportunity to have the juror excused for cause before trial. Ibid.
The Cooper Court ultimately concluded that the prospective juror's omission that her cousin was in federal prison was not presumptively prejudicial to defendant Cooper, noting,
Perhaps it is for that reason that defendant does not elaborate even in the most hypothetical way on the prejudice that he suffered vis-a-vis the omission and does not even assert that he would have struck [the juror] from the jury, simply stating that
the omission "deprived him of information necessary to make intelligent use of his peremptory challenges." That, however, simply is not the test under our law.
[Id. at 351.]
Cooper applies to situations where the jury is considered "improperly empaneled" because the defendant has been deprived of the opportunity to challenge a juror who omitted potentially prejudicial material before trial for cause. Id. at 349. Cooper is inapplicable here because defendant was not deprived of that opportunity.
Because the jury had not yet been sworn in, defendant received the opportunity to challenge the jurors for cause. Indeed, trial counsel challenged juror #2 for cause. For the same reason, trial counsel had the opportunity to use her peremptory challenges on jurors #2 and #9 and chose not to do so. Given these opportunities, Cooper's presumption is simply inapplicable.
Moreover, trial counsel's decision not to use peremptory challenges is entitled to the "strong presumption" of "reasonable professional judgment" and "sound trial strategy." Loftin, supra, 191 N.J. at 198. Her subsequent failure to request a mistrial likewise fell well within "the wide range of professionally competent assistance." Ibid.
Defendant here, like the defendant in Cooper, asserts that trial counsel should have used peremptory challenges, without making any allegations of potential prejudice resulting from the jurors' casual relationship, let alone the required "affirmative showing" that he would have in fact used peremptory challenges had he known of the jurors' relationship. Cooper, supra, 151 N.J. at 349-50.
Without elaboration, defendant states that "there can be no valid strategic reason for keeping these jurors on the panel given the potential prejudice" and that "[trial counsel] failed to discuss [peremptory challenges] with the defendant or, having discussed the matter with the defendant, nevertheless chose to ignore his desire to have both jurors removed." The fact that two jurors had a passing relationship does not alone show potential prejudice, particularly when the trial court found both jurors credible on whether they could impartially weigh the evidence at trial without outside influence. Trial counsel was not deficient in failing to use peremptory challenges or move for a mistrial due to the relationship between jurors #2 and #9.
Projectile Strike Marks
In his pro se brief, defendant argues that trial counsel was deficient because she did not cross-examine the State's experts on the fact that two projectile strike marks on the second-floor landing corroborated defendant's account of the events and contradicted the State's account of events.
There is simply no factual dispute that defendant fired shots down at the second-floor landing from the third-floor landing. The presence of the strike marks therefore does not contradict the State's account of events, but corroborates it.
Defendant does not explain how counsel's failure to question the State's experts about the strike marks was outside the range of acceptable representation, or affected his defense in any way, let alone affected the result of the proceeding. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Officer Rawa's Boot
Defendant next argues that trial counsel was deficient for failing to ask the court to read back the portion of Officer Rawa's testimony in which he stated that "he was not shot and in which he described the hole in his boot" in response to the jury's request for a medical or police report.
Specifically, the jury asked the court during deliberations, "Can you please let us have or clarify if there was a police report by Officer Rawa that states he was shot in the boot . . . I'm not sure, but something about boot or a medical report[?]" The court responded that no "police reports or medical reports to that effect" had been admitted in evidence.
Officer Rawa testified that he received no injuries, but noticed a hole in his work boot that evening which had not been there prior. Defendant argues that trial counsel should have requested a readback of this testimony to remove the jurors' "erroneous belief" that Rawa may have been shot. Having admitted to shooting toward Officer Rawa, however, defendant could be convicted of second-degree aggravated assault of Rawa whether or not Rawa was actually shot. See N.J.S.A. 2C:12-1(b)(1) (attempt suffices for second-degree aggravated assault).
Moreover, defendant again fails to allege how counsel's failure to request the readback either fell below an objective standard of reasonableness, prejudiced his trial, or affected its outcome. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant has failed to overcome the "strong presumption" of reasonableness afforded to counsel's performance vis-à-vis a readback of Officer Rawa's testimony. Loftin, supra, 191 N.J. at 198.
The remainder of defendant's arguments lack sufficient merit to warrant further discussion in our 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