Opinion
DOCKET NO. A-1041-12T2
06-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARTHUR TIGGS, 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 (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Waugh.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2644.
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 (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Arthur Tiggs appeals from an order denying his petition for post-conviction relief (PCR). A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1)- (2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The judge merged defendant's convictions for murder and possession of a firearm with an unlawful purpose and sentenced defendant to an aggregate term of life imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, defendant raised three issues:
I. THE TRIAL WAS IRREPARABLY TAINTED WHEN, IN HIS CLOSING INSTRUCTIONS, THE JUDGE ERRONEOUSLY ADVISED THE JURY THAT FOUR OF THE WITNESSES HAD ALL IDENTIFIED DEFENDANT AS "THE PERSON WHO COMMITTED THE MURDER."[] (Not Raised Below).We reversed and vacated defendant's conviction for unlawful possession of a handgun and remanded for entry of an amended judgment but otherwise affirmed, and the Supreme Court denied defendant's petition for certification. State v. Tiggs, No. A- 2440-07 (App. Div. July 13, 2010), certif. denied, 205 N.J. 77 (2010).
II. BECAUSE THE JURY WAS NOT PROPERLY INSTRUCTED AS TO THE CHARGE OF UNLAWFUL POSSESSION OF A WEAPON, THAT CONVICTION MUST BE VACATED. (Not Raised Below).
III. THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A LIFE TERM, THUS VIRTUALLY ENSURING THAT DEFENDANT WILL NEVER LEAVE PRISON.
Defendant had submitted a pro se brief also raising this issue.
Defendant filed a timely petition for PCR on December 17, 2010. He did not present any evidential materials outside the record in support of that petition. The record presented on appeal includes only the transcripts of trial and the oral argument on PCR; the indictment; the judgment of conviction; notice of direct appeal; this court's decision on direct appeal; the Supreme Court's order denying certification; defendant's initial petition, which is unsupported by a certification; affidavit or any documentary evidence; the briefs filed in the trial court; the judge's opinion on PCR; the order denying PCR; and the notice of appeal.
Defendant raises these issues on appeal:
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. TRIAL COUNSEL DID NOT
ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO ASSERT AND PERSUE AN INTOXICATION DEFENSE RATHER THAN A DEFENSE OF MISTAKEN IDENTIFICATION.II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT TO CERTAIN ASPECTS OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.
We affirm substantially for the reasons stated by the judge, who presided over defendant's trial and denied PCR. We supplement the judge's written opinion filed on June 1, 2012, only to address defendant's claim that the judge erred in determining that his claim of ineffective assistance based on counsel's failure to object to the prosecutor's summation was procedurally barred because it could have been raised on direct appeal. R. 3:22-4(a).
The evidence presented at trial is set forth in our opinion on direct appeal and is repeated here only as essential to our discussion of the issue raised. The incident occurred outside the Cave Lounge (the Cave), where defendant had gone to celebrate his birthday between 1:00 and 2:00 a.m. at a party arranged by the owners of the Cave. Outside the Cave and shortly before 3:00 a.m., defendant crossed the street and shot the murder victim, Lance Pettiford, in the head and at close range. While no witness saw defendant shoot, witnesses saw him cross the street with a gun in his hand after the shot was fired.
Evidence pertinent to defendant's condition at the time of the shooting was presented at trial. Shortly after arriving at the Cave, defendant and two of his friends went outside to smoke. According to one of the friends, defendant and the others shared a cigar filled with marijuana rather than tobacco. While they were smoking, Pettiford left the Cave with a friend and crossed the street, where another friend joined them with a bottle of liquor. According to one of defendant's friends, the man with the bottle cursed at the group across the street smoking. In his opinion, defendant was upset and said, "I had a vision that somebody — somebody got shot — I popped somebody for my birthday." Defendant talked about that dream more than once that night. Defendant's friend told him to think about his son and "leave it alone."
Another of defendant's friends heard defendant say he wanted to "push" somebody, which the friend understood to mean that defendant wanted to shoot someone. That friend ignored the comment because he did not think defendant would do such a thing, but he also said that defendant was mildly intoxicated and appeared to have something on his mind. Defendant was described as pacing, disturbed and peculiar.
The PCR court rejected defendant's contention that his counsel was ineffective for failing to pursue and present an intoxication defense and obtaining an expert to discuss the effects of alcohol and marijuana. Relying upon State v. Cameron, 104 N.J. 43, 54-58 (1986), the judge concluded that the defense is permitted only if there is a showing of "prostration of faculties." The judge determined that there was no evidence of such prostration in this case.
The judge did not address defendant's claim of ineffective assistance based on his allegation that trial counsel failed to object to impermissible conduct on the part of the prosecutor, because the judge concluded that these claims, which defendant based solely on the trial record, were procedurally barred because defendant could and should have raised them on direct appeal.
The objections to the prosecutor's conduct raised by defendant's PCR counsel in the trial court were to: impermissible comment on defense strategies and deficiencies in the defense; impermissible vouching for a witness; and impermissibly urging the jurors to consider if the civilian witnesses called by the State had any motive to lie.
With that background, we consider the issues presented on this appeal. In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must demonstrate deficient performance and resulting prejudice. In short, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). An evidentiary hearing is needed where the defendant has come forward with facts that would, if believed, make a prima facie showing of both deficient performance and resulting prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992).
With respect to defendant's claim based on intoxication, there is no question that "[a]s a general principle, 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" State v. DiFrisco, 174 N.J. 195, 223 (2002) (quoting State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695)). As we understand the PCR's judge's determination, he concluded that given the level of intoxication required to prevail on a claim of intoxication, precluding a defendant from acting with the mental state that is an element of the crime, reasonable trial counsel would not have pursued that defense.
To obtain a conviction for murder, other than felony murder, the State must prove that defendant acted purposely or knowingly. N.J.S.A. 2C:11-3. Evidence of intoxication is admissible to disprove either of those mental states. Cameron, supra, 104 N.J. at 53; N.J.S.A. 2C:2-8. "[T]he intoxication must be of an extremely high level" and the standard is "prostration of faculties." Cameron, supra, 104 N.J. at 54. The defense is unavailable where the evidence does not give rise to "the slightest suggestion that [defendant] did not know what [he] was doing or that [his] faculties were so beclouded . . . that [he] was incapable of engaging in purposeful conduct." Id. at 57.
On this record, we agree with the PCR judge that there was insufficient evidence to suggest an intoxication defense sufficiently viable to warrant investigation. Thus, defendant failed to establish deficient performance. Moreover, defendant did not provide any evidence supporting a finding of prejudice from counsel's failure to investigate. That would require some evidence suggesting that an investigation could or would have been productive, and defendant presented nothing to make that showing. Because defendant failed to make a prima facie showing of either deficient performance or resulting prejudice, defendant was not entitled to an evidentiary hearing or relief on this claim.
The claims defendant raises in Section C of Point I and Point II both concern failure to raise objections to the prosecutor's conduct. The first of those claims concerns trial counsel's performance and the second concerns appellate counsel's failure to raise the issue on direct appeal. Although the PCR judge did not address the merits, the record permits us to address them in the first instance. R. 2:10-5.
The record we have does not reflect a claim of ineffective assistance by appellate counsel raised in the trial court. In the interest of judicial economy, we address it.
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On this appeal, counsel points to two passages from the prosecutor's summation that he contends amounted to "impermissible comment upon defendant's failure to testify at trial," which counsel on appeal claims was accomplished by the prosecutor's posing rhetorical questions that could only have been answered if defendant testified.
Setting aside the fact that this ground for objecting to the summation was not presented in the trial court, we have reviewed the passages set forth in defendant's brief on this appeal and conclude that they do not, as defendant suggests, carry a subtle reference to defendant's decision to exercise his right to remain silent.
In the first passage, the prosecutor refers to what defendant said to a friend and notes that defendant did not tell his friend he was innocent. The prosecutor followed those comments with a discussion of what defendant did ask his friend to do — talk to the owner of the Cave about getting the Cave's surveillance tapes.
In the second passage, the prosecutor refers to defendant's failure to return to the Cave on the day after the shooting to retrieve the car keys and hooded sweatshirt he left behind the night before. In addition, he asks the jury to consider whether this conduct is inconsistent with that of an innocent person. The prosecutor followed those comments on the evidence with another reference to the efforts defendant made to secure tapes from the Cave's surveillance cameras.
Because the passages of the State's closing argument to which defendant objects on this appeal were permissible arguments based on the evidence presented, State v. Frost, 158 N.J. 76, 82 (1999), defendant's trial counsel and counsel on direct appeal were not deficient for failing to object. If for no other reason, it would be improper to grant relief for failure to object to a permissible argument because a defendant cannot show prejudice attributable to a failure to raise an objection that would have been denied. Accordingly, defendant is not entitled to an evidentiary hearing or relief on these claims, and his arguments to the contrary have insufficient merit to warrant any additional discussion. 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