Opinion
DOCKET NO. A-2405-10T3
04-23-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL TUCKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, 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NOT FOR PUBLICATION WITHOUT THE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 Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-02-0231.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief.)
Appellant filed a pro se supplemental brief. PRE CURIAM
Defendant, Michael Tucker, appeals from the Law Division's July 23, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
The following account of the underlying criminal event is from the Supreme Court's decision in this matter reversing our judgment and remanding to us for further proceedings:
On June 11, 2000, defendant Michael Tucker, called 9-1-1 and reported that he had returned home to discover his mother's dead body. The Piscataway police responded to the home and found the lifeless body of Mary Tucker. Patrolman James Richards inspected the house and found no evidence of a struggle or forced entry.
Richards questioned both defendant and his girlfriend, Tracy Stepney, who also was present. Defendant stated that he last saw his mother two days earlier on Friday, June 9, 2000. Defendant drove his mother home from the grocery store and then left to spend the weekend with Stepney in Plainfield. On Saturday, he and Stepney went to New York City for the day. On Sunday afternoon, they returned to his mother's home and found her lifeless body. Defendant claimed he also found the back door unlocked. In a separate interview, Stepney provided a similar account, also mentioned that the back door was unlocked.
The police transported defendant to police headquarters where they administered Miranda warnings. At some point, the police arrested defendant on unrelated outstanding warrants. The record does not reveal whether he was arrested before or after he was given Miranda warnings and agreed to speak to the police. However, he reiterated that he last saw his mother on Friday following their trip to the grocery store.
Defendant did not mention that he had taken his mother to the bank in either of his statements.
Meanwhile, the police investigation revealed the victim's purse in a bedroom closet containing $747 in cash and a checkbook with the last entry made out to cash in the amount of $3000. The police learned that the victim cashed a check at the United National Bank in Plainfield on Friday, June 9, and that she received thirty $100 bills.
In a second interview of defendant at police headquarters, the police again informed defendant of his Miranda rights and interviewed him. On that occasion, defendant acknowledged that he had taken his mother to the bank, but claimed that he waited for her in the car. Defendant explained that the $520 in his pocket was money he earned repairing cars. He displayed five $100 bills and one $20 bill.
The police later obtained a bank surveillance tape that showed the victim entering the bank at approximately 9:25 a.m. on June 9, 2000. The tape also revealed that defendant was present and stood behind his mother as she spoke to the bank teller. He wore denim shorts that the police later discovered in Stepney's apartment. Blood tests conducted on stains found on the shorts revealed that some of the blood was the victim's, some was defendant's, and some was of an unknown third person.
rState v. Tucker, 190 N.J. 183, 185-86 (2007).]
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1)(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(c) (count four). Tried by a jury, he was convicted on counts two, three, and four. He was sentenced on October 17, 2003, to a term of life imprisonment on the second count, with thirty years of parole ineligibility, in addition to appropriate fines and penalties. Counts three and four were merged with count two.
In an unpublished, per curiam opinion, we reversed and remanded for a new trial, concluding that it was reversible error for the prosecutor to comment that defendant did not tell the police in his first statement that he took his mother to the bank, and in his second statement that he entered the bank with his mother. State v. Tucker, No. A-4772-03 (App. Div. Dec. 29, 2005). The Supreme Court granted the State's petition for certification, State v. Tucker, 187 N.J. 81 (2006), and reversed our judgment, finding no unconstitutional comment on silence, but remanded to us to determine the question we left unaddressed as to whether the improper admission of "debt evidence" by itself requires a new trial. State v. Tucker, 190 N.J. 183, 190-91. On remand, we affirmed defendant's judgment of conviction. State v. Tucker, No. A-4772-03 (App. Div. Mar. 12, 2009).
On March 30, 2009, defendant filed his PCR petition, alleging ineffective assistance of appellate counsel for not raising on direct appeal the admission of evidence of defendant's drug use and purchase, and ineffective assistance of trial counsel for failing to present certain so-called exculpatory evidence. Following argument, the PCR judge denied defendant's petition, concluding:
[A]gain I agree with the Appellate Division that the other evidence that was presented during the course of this trial was so overwhelming that these . . . three points, the fact that the two statements, witnesses weren't brought in, the fact that . . . appellate counsel failed to raise the evidentiary issue on the appeal and that the trial court attorney failed to deal with the fact that [defendant] had a pending lawsuit do nothing to outweigh the fact that there was DNA evidence of blood found on the defendant's clothing and -- and other aspects of the State's case that outweigh in terms of the factors that this defendant is raising at this point in time. So I find that he . . . has not presented a prima facie case that allows for an evidentiary hearing and as a result the motion is hereby denied.
On appeal, defendant, through counsel, raises the following issues:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM
THE INTRODUCTION OF IMPROPER "RES GESTAE" EVIDENCE WAS VIOLATED.
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED THAT TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
STRICKLAND/FRITZ TEST.
III. THE ORDER DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED ON POST-CONVICTION RELIEF.
In a supplemental pro se brief, defendant makes the following arguments:
I. The order denying evidentiary hearing for Post-Conviction Relief should be reversed because throughout the initial argument defendant was being detained in the holding cell which denied him the right to be heard.We find no merit to these arguments. R. 2:11-3(e)(2).
II. Trial counsel's failure to present the video tape from North Plainfield Pathmark as exculpatory evidence was ineffective assistance of counsel. Trial counsel also failed in retrieving exculpatory evidence from Aamaco transmission showing that defendant-petitioner had visited the shop on June 9, 2000 to have transmission work done on victim's car.
III. Trial counsel's failure to show that the purchase of the bus tickets was incorrect resulted in the miscarriage of justice which allowed the jurors to
believe what wasn't facts that resulted in a guilty verdict.
IV. Trial counsel's failure to present pretrial memorandum application to defendant-petitioner for the Superior Court of New Jersey allowed defendant to believe that no plea agreement could be effective.
V. Defendant was denied a fair trial as the result of prosecutorial misconduct during the State's summation by relaying the message that the State witness Howard Phearse was a crack addict which allowed the jurors to believe that defendant was a crack addict also.
I
We note at the outset that defendant filed his PCR petition more than five years after his October 17, 2003 judgment of conviction and because he has shown neither excusable neglect nor exceptional circumstances, the instant application is time-barred. R. 3:22-12. Neither has he demonstrated relaxation of the rule is required in the interest of justice. R. 1:1-2. Nevertheless, we proceed to address the substance of defendant's claims, as did the PCR judge.
II
Defendant contends that appellate counsel was ineffective for failing to challenge on direct appeal the 'res gestae' rationale for admitting evidence of his drug use. We disagree.
Howard Phearse, a friend who lived in the same rooming house as Stepney, testified that drugs were purchased with a $100 bill provided by defendant, and that they then consumed drugs over the weekend of June 9, 2000.
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It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987). We are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.
The trial judge, in admitting evidence of defendant's use and purchase of drugs on the day following his mother's murder, relied on the doctrine of res gestae, finding proof of such bad acts intrinsic to the charged crime. The judge further explained that while Phearse's testimony "does not satisfy the basis for a motive, motive being the murder of Mary Tucker for purpose of obtaining money to buy drugs[,]" under N.J.R.E. 404(b), the evidence was nevertheless admissible
[d]ue to its temporal proximity to the crimes which are part and parcel of the State's proofs of the criminal transaction. It is evidentiary in terms of the State's contention or allegation that the defendant in the hours surrounding the victim's death is seen to have had bills of 100 denominations which . . . was uncharacteristic for him.After conducting the N.J.R.E. 403 balancing test, the judge concluded that "notwithstanding the prejudicial value of that testimony that its probative value substantially outweighs the prejudice . . . ."
As noted, defendant's trial took place in July 2003 and his appellate brief was filed in 2004. At that time, the prevailing law as stated in State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995) recognized "[e]vidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." Id. at 522; see also State v. Long, 173 N.J. 138, 165 (2002).
It was not until six years later in 2011 when the Supreme Court soundly rejected "the practice of invoking 'res gestae' as an explanation for the admission of evidence" of other crimes or bad acts, State v. Rose, 206 N.J. 141, 182 (2011), in favor of an analysis to be done entirely in the context of the New Jersey Rules of Evidence. Clearly, appellate counsel cannot be faulted for failing to anticipate the Rose decision since precedent at the time allowed such evidence as not barred by N.J.R.E. 404(b) if the defendant's conduct was "res gestae," or "part and parcel" of the criminal event. State v. Martini, 131 N.J. 176, 240-42 (1993). Here, the trial judge found the requisite connection and further that its relevance outweighed any potential for prejudice. That evidentiary decision, of course, is entitled to substantial deference. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 14 9 L. Ed. 2d 306 (2001). Moreover, since the evidence was admitted as res gestae, no limiting instruction was required. Long, supra, 173 N.J. at 165; Martini, supra, 131 N.J. at 242.
Given the state of the law at the time, we discern no deficiency in appellate counsel's performance. By parity of reasoning, neither did defendant suffer any prejudice because he cannot show that had counsel not omitted this issue on direct appeal, the result would have been different.
III
Equally clear is that trial counsel's performance was neither deficient nor resulted in an unfair trial. Defendant faults counsel for failing to present the so-called third-party- guilt testimony of Yajaira Taylor and Lawrence Shallo, two putative witnesses who supposedly told defense investigators they saw others in the vicinity of the mother's home at the relevant time. In the first place, no competent proof has been offered as to what these witnesses would have actually testified to had they been called to the stand. Second, Taylor's account, which offers differing times of her observations, neither of which occurred on the date in question, does not truly exculpate defendant as it does not tend to prove the mother was robbed and killed by others than defendant. Shallo's version, on the other hand, is simply implausible and at odds not only with Taylor's narrative, but as well with defendant's other claim that counsel should have informed the jury that defendant found $3500 in cash in his mother's bedroom after the murder. Considering the internal inconsistencies in Taylor's own statements and their contradiction of Shallo's account, which on its face lacks credibility, it cannot be said that trial counsel's decision whether to call these two witnesses — "one of the most difficult strategic decisions that any trial counsel must confront," and one that merits a high amount of deference, State v. Arthur, 184 N.J. 307, 320-21 (2005) — amounted to deficient performance.
Even if such a decision may be questioned in hindsight, it resulted in no prejudice to defendant. As we noted on remand from the Supreme Court, and reaffirmed by the PCR judge, the proof of defendant's guilt was overwhelming. Such proofs include defendant's
failure to mention the bank visit when first interviewed, a film of him standing behind his mother while she withdrew $3000 in $100 bills, her bloodstains on the shorts he is wearing on the surveillance tape despite his assertions that he did not discover her corpse until two days later while wearing different clothing, and his possession of five $100 bills.The evidence marshaled against defendant amply demonstrates that even if trial counsel was deficient, defendant would be unable to satisfy the second prong of the Strickland/Fritz test, that without counsel's error, the outcome of the case would have likely been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
[Tucker, supra. No. A-4772-03 (Mar. 12, 2009) (slip op. at 6).]
The same holds true for defendant's next claim that trial counsel failed to proffer proof of defendant's pending civil lawsuit for injuries suffered in 1992 to rebut the State's motive evidence that defendant was concerned with the amount of debt owed the hospital that treated him for those injuries. Such evidence, however, demonstrates only a potential claim and does not dilute the fact that as of the date of the murder, defendant's medical debt was still outstanding. As the PCR noted:
[t]here was nothing to suggest on the part of the defendant that this case was going to be successful. . . . [T]here were . . . faults, . . . with the lawsuit that could be attributable to the defendant himself thereby causing the suit to be not as lucrative as maybe the defendant would think.Thus, omitting proof of defendant's lawsuit does not rise to the level of a trial deficiency and, in any event, did not prejudice defendant in that had it been presented, the outcome would not have been different.
IV
We have considered each of the remaining issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.