Opinion
DOCKET NO. A-1781-15T3
08-24-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DIRON CHARLES WRIGHT, Defendant-Respondent.
Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). Charles M. Moriarty argued the cause for respondent (Moriarty Law Firm, attorneys; Timothy C. Moriarty, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-01-0203. Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). Charles M. Moriarty argued the cause for respondent (Moriarty Law Firm, attorneys; Timothy C. Moriarty, of counsel and on the brief). PER CURIAM
By leave granted, the State appeals from the Law Division's October 1, 2015 order granting defendant Diron Wright's petition for post-conviction relief (PCR) based on the alleged ineffective assistance of trial counsel in the defense of a prosecution for the manufacture and sale of illicit drugs. The ineffectiveness claim is predicated upon trial counsel's failure to call three defense witnesses at retrial, defendant's mother, sister and childhood friend, to bolster the testimony of the superintendent of defendant's apartment building who testified about the layout, contents and personal use of defendant's apartment in order to refute the State's claim that his apartment constituted "a drug production facility."
We conclude that trial counsel's decision not to call the absent witnesses was a reasonable strategic decision because trial counsel could reasonably have believed that their testimony would have been of marginal value and would have been subject to impeachment on the basis of bias given the witnesses' relationship to defendant. In addition, the failure to call the witnesses did not prejudice defendant. Accordingly, we reverse.
I
Defendant's first jury trial ended with a hung jury. At the second trial, a jury found defendant guilty of three counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), three counts of second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), three counts of second-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(2), and one count of first-degree maintenance of a drug production facility, N.J.S.A. 2C:35-4.
At trial, the State's proofs established that defendant sold crack cocaine to an undercover federal agent on three separate occasions, two of which occurred in defendant's apartment. During the sales in defendant's apartment, on one occasion, the agent observed defendant retrieve a block of cocaine from his freezer, cut off a piece, weigh it on a digital scale, and package it in plastic. The agent also observed a glass pot on the stove containing recently boiled water with white residue floating on top, and a large white chunk of what appeared to be crack cocaine drying on a napkin nearby, all indicative of cocaine being cooked and dried. The agent described the living room area of defendant's apartment as sparsely furnished and the kitchen as containing only cocaine and drug paraphernalia. On the other occasion, the agent observed defendant obtain a pre-packaged piece of crack cocaine from a larger bag of crack cocaine stored in his freezer and weigh it before making the sale. Defendant did not testify at trial.
The trial court granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed thirty years with a fifteen-year period of parole ineligibility on the first-degree maintenance of a drug production facility conviction, and a concurrent aggregate term of ten years with a five-year period of parole ineligibility on the remaining non-merged convictions. The sentence was imposed consecutively to a fourteen-year sentence, with a sixty-nine-month parole disqualifier, that defendant was serving on an unrelated drug conviction. We affirmed defendant's conviction and sentence in an unpublished opinion.
State v. Wright, No. A-3978-08 (App. Div. Dec. 8, 2011).
Defendant filed a petition for PCR based on the alleged ineffective assistance provided by his trial counsel in failing to call three proposed witnesses at his trial, specifically, his mother, I.M., his sister, E.W., and his childhood friend, S.S. The PCR court conducted a three-day evidentiary hearing in which the three proffered witnesses testified. In addition, defendant's trial counsel, Michael Campagna (Campagna), the federal agent, Gregory Hilton (Hilton), and defendant all testified. Based on the evidence presented at that hearing and the trial record, the PCR court concluded that defendant proved his ineffective assistance claim and granted the petition. This appeal followed.
Mindful that our opinion will be posted on the internet, we have omitted the full names of witnesses wherever possible to protect their privacy.
Defendant raised numerous other issues in relation to his ineffective assistance of counsel claim. However, the PCR court rejected those challenges, reasoning that those issues were either addressed or should have been addressed in defendant's direct appeal. See R. 3:22-4; R. 3:22-5.
Defendant's convictions were based primarily on the testimony of Hilton, who was assigned to work as an undercover agent with a Drug Enforcement Administration (DEA) Mobile Enforcement Team and the Monmouth County Prosecutor's Office's Narcotics Unit to target drug dealers in the Monmouth County area. At trial, Hilton testified that he purchased crack cocaine from defendant on three separate occasions while posing as a friend of a confidential informant whom defendant had known since childhood. In describing defendant's apartment where two of the controlled buys occurred, Hilton testified that the living room area contained only a mattress on the floor with a sheet over it and a small table with a little radio on it. He testified that the only items in the kitchen were the cocaine in the freezer, a digital scale in the kitchen cabinet to weigh it, and a glass pot on the stove to cook it.
In contrast, the superintendent of defendant's apartment building, C.G., testified at the first trial on defendant's behalf that, on one occasion, she had observed defendant in his apartment cooking food with a friend and "he had [his] little boy with him" whom she had met "many times" because defendant knew that she liked children and would alert her whenever his son was there. C.G. described defendant's apartment as "an efficiency" consisting of "one big room" with "a little kitchenette," "a bathroom" and "some closets." She described the furnishings as "[j]ust a bed, a chair . . . because the apartment's so tiny . . . it's not an apartment you can fill up with a lot of furniture and stuff like that." She characterized defendant as "a nice neighbor, nice person to talk to."
At the second trial, C.G.'s description of the layout and furnishings in defendant's apartment were consistent with her prior testimony. In addition, she testified that she observed defendant in his apartment
[o]n weekends because . . . he has this little boy, his son, so he would say, come over here, come see my little boy, because he knows I like kids. On one or two occasions, he invited me to eat food with him. I didn't eat, but I did go in and, in fact, we was [sic] on the porch with his little boy at one time.She explained that when defendant invited her to eat with them, he was actually cooking in his "little kitchen." She testified further that she had observed him cooking "maybe twice" and she described defendant as a "very good tenant."
At the hearing on defendant's petition for PCR, defendant's mother testified that defendant's apartment, which she had visited on numerous occasions, had a couch, a very expensive stereo system, a television, kitchen accessories, lounge chairs on the patio, and toys for defendant's children. The kitchen accessories consisted of pots, pans, dishes and utensils and there was food in the kitchen cabinets which defendant cooked for his children and her. She identified two photographs as depicting defendant's apartment and its contents at the time in question. According to defendant's mother, after Hilton testified about the sparse furnishings in defendant's apartment, she told trial counsel that Hilton "was telling a damn lie" and offered to testify to that effect. She also gave trial counsel the names of defendant's sister, E.W., and childhood friend S.S., as potential witnesses to testify about the contents of defendant's apartment. However, she stated that trial counsel ignored her and "never really gave [her] a straight answer."
Defendant's sister and childhood friend testified for defendant at the PCR hearing consistent with defendant's mother's account of defendant's apartment and its contents. They had both been to defendant's apartment on numerous occasions. Defendant's sister identified the same photographs her mother had identified as depicting defendant's apartment and its contents at the time in question. Defendant's sister had actually taken the two photographs.
Defendant's childhood friend testified that he stayed at the apartment with defendant for about a week or two while he was estranged from his girlfriend. However, he also admitted having a 1993 conviction for theft, a 1994 conviction for distribution of cocaine within 1,000 feet of a school zone, and a 2007 disorderly persons conviction for wandering.
Campagna, who had been practicing law for approximately thirty-two years with about sixty percent of his practice consisting of criminal litigation, testified for the State at the PCR hearing. He was hired by defendant in 2004 after the charges were filed. He picked up the discovery, provided a copy to defendant and met with defendant many times at his office in Elizabeth, as well as at a diner in the Asbury Park area, in order to review the discovery, discuss trial strategy and potential witnesses. He also met with defendant's mother and spoke to her on the telephone "several times." In addition, he took photographs of the apartment building in question.
During one of the meetings, Campagna explained to defendant that his maximum exposure with an extended term sentence was life imprisonment. However, from the outset, defendant told him that he wanted to go to trial and later rejected the State's plea offer.
According to Campagna, when defendant provided him with the names of five potential defense witnesses, he conducted follow-up investigations of the witnesses and assessed the value of each witness to defendant's case. He also sent a letter to the prosecutor listing the five witnesses and providing a summary of the anticipated testimony. He testified that the five defense witnesses provided by defendant were C.G., L.I., J.J., Z.W. and C.W.
Campagna testified that he personally met with C.G. The purpose of C.G.'s testimony was to contradict Hilton's description of the interior of the apartment and his characterization of its use as a drug production facility. C.G.'s testimony would establish the layout of the apartment, and the fact that defendant actually lived there, since she had seen him cooking meals for his son. Campagna assessed C.G. as a valuable and strong witness for the defense because she was neutral and independent.
According to Campagna, he was unable to interview L.I. about the incidents that occurred at defendant's apartment because L.I. was confined at the Monmouth County Jail and his attorney declined his request for an interview. After advising defendant that he could have subpoenaed L.I. to testify regardless, defendant directed him not to call L.I. as a witness.
The purpose in calling J.J. as a witness, whom Campagna believed was the State's confidential informant, would have been to undermine the State's investigation since it was believed that J.J. provided incorrect information to Hilton. However, once defendant's motion to disclose or confirm the identity of the confidential informant was denied, Campagna was unable to locate J.J. to call him as a defense witness.
The remaining potential witnesses provided by defendant were Z.W. and C.W., the grandmother of defendant's daughter. However, after speaking to them, Campagna advised defendant against calling them as character witnesses. He explained that:
When you call a character witness, you're asking them to vouch for the believability and the other positive aspects of the defendant. Without the defendant testifying, it's been my experience that character witnesses really don't help all that much unless they're completely disinterested and they can talk about things that people have done, you know, for charity and community service and the like.
Campagna testified that he represented defendant at both jury trials and called C.G. as the sole defense witness at both trials. Prior to the second trial, he represented defendant on an unrelated drug charge, to which defendant pled guilty after losing his suppression motion and for which defendant was incarcerated. As a result, his three meetings with defendant in preparation for the second trial occurred at detention facilities. He met with defendant twice at the Monmouth County Jail and once at Bayside State Prison, where he spent seven hours with defendant.
According to Campagna, although defendant sent him letters from prison, he did not reciprocate because he did not "like writing, unless it's very generic, to someone who is incarcerated, too many people see it." In one of defendant's letters, he asked Campagna if C.G. was ready to testify, stating "just thought I'd ask." Campagna testified that defendant made no reference to any other witness in any of his letters and he had no recollection of defendant asking him to call any additional witnesses at the second trial.
According to Campagna, he called C.G. on the phone regarding her testifying at the second trial and issued a subpoena to her to that effect. He also talked to her the day of the second trial and she seemed "forthright, believable, sure of herself." Campagna testified that there was "no fear or trepidation in her voice" when he spoke to her. However, during her testimony at the second trial, he thought that "she seemed to be very tentative, nervous." He thought she went from a "vibrant witness to someone who wished she were anywhere else but in court."
On cross-examination, Campagna rejected the notion that providing her with a transcript of her testimony from the first trial would have avoided the problem. He explained that:
Her testimony was pretty simple. I believe that she told the truth in the first trial, and I honestly believe whether I sent her a transcript or a detective it was not going to change what happened. Somebody leaned on her and . . . a transcript isn't going to fix that. Somebody . . . had to tell her that she was going to be in some kind of trouble, whether it was with immigration, DYFS, or what have you. And if she testified the same way, that was what was going to happen. You don't fix that with a transcript or an interview.
Although Campagna did not recall whether defendant's mother offered to testify, he never considered having defendant's mother testify because her testimony would not have added anything to the defense, it would have been "marginal, at best" or "of no evidential value," and she would be subject to impeachment based on her relationship to defendant. In addition, Campagna pointed out that she would have been sequestered and unable to attend the trial and provide moral support for her son. In fact, she attended every court proceeding during both trials.
Campagna had no recollection of discussing with defendant calling his sister or his childhood friend to testify about the apartment or its contents. He believed that, as a family member, his sister would also have been subject to impeachment. In addition, if he had known that defendant's childhood friend was willing to testify but had a prior record, he would not have called him as a witness "[b]ecause after he testified the fact of his conviction could be brought out to impeach the testimony that he had given. Sometimes that negates the witness, sometimes that goes beyond negating the witness, and the jury looks at the defendant as trying to deceive them."
Although Campagna was concerned about C.G.'s testimony in the second trial, he explained that "[a]t that point[,] I don't know that we could have brought any other witnesses in. They hadn't been named. They hadn't been investigated. They hadn't had their backgrounds checked. We were kind of stuck with [C.G.] at that point and she faltered, yes." In addition, Campagna explained that adding a witness at that stage in the proceedings would have been problematic because the name would not have been vetted with the jurors who were empaneled.
Campagna testified that, prior to the second trial, he had a good working relationship with defendant. However, during the second trial, the relationship soured, and, after he was sentenced and incarcerated on the unrelated drug charge, defendant's demeanor and temperament when he came to court were off-putting. Campagna acknowledged that, following the verdict, defendant challenged his fee and sought fee arbitration to resolve the dispute.
Defendant testified at the PCR hearing that, in addition to C.G.'s name, he gave Campagna the name of his mother, his sister, his then seventeen-year-old daughter and his childhood friend S.S. as potential witnesses to refute Hilton's testimony that defendant's apartment only contained drugs and drug paraphernalia. However, Campagna never took statements from them or conducted any follow-up investigation, "he just never used them." According to defendant, Campagna told him that "the jury would look at them differently because they're my relatives and they wouldn't believe them as much as they would anyone else."
Defendant testified that, between the first and second trials, he was home for about a month before he was incarcerated on the unrelated drug charge. However, Campagna never met with him until he was incarcerated at Bayside prison, at which time defendant reiterated his request that Campagna call the witnesses he had identified. Defendant testified that Campagna responded "it's the same case. I'm going to put on the same defense." After C.G. testified at the second trial, defendant again reiterated his request to Campagna. However, Campagna again told him "they're relatives. They're not going to believe them" and "you'll be all right."
When defendant was shown the photographs that his mother and sister had identified as his apartment and its contents at the time in question, defendant admitted that while the furnishings were the same, the apartment was a different apartment that he had occupied previously. Hilton also confirmed that the photographs depicted a different apartment from the apartment defendant occupied when the undercover drug transactions occurred.
The PCR court delivered a comprehensive written opinion granting defendant's petition. In analyzing the defense strategy, the court noted:
Defense counsel in his summation at the retrial correctly drew the attention of the jury to the credibility of Agent Hilton. Although the confidential informant set up the meetings between Agent Hilton and the defendant through several phone calls, this confidential informant was never called to testify at either trial. Judge Uhrmacher correctly overruled the State's objection at the retrial when defense counsel commented on the State's failure to call the confidential informant as a witness at trial. That informant could have substantiated the dates of the meetings and phone calls. Trial counsel adequately cross-examined Agent Hilton and pointed out to the jury that Agent Hilton's testimony about the dates of the meetings and drug sales between Agent Hilton and defendant were at best confusing. . . . This confusion
was highlighted by the fact that Agent Hilton created his reports approximately 18 days later from memory alone without notes. . . . There was also a dispute over the amounts of the transactions . . . The State produced no official documents other than Agent Hilton's reports to verify the amounts. Finally, the State intended to rely upon audio recordings to confirm and bolster Agent Hilton's credibility. However, those audio tapes were inaudible for some unknown and unexplained reason. There was also a discrepancy about the amounts of sales . . . Finally, Agent Hilton's report claimed he went to 215 First Street in Asbury Park when in fact the correct address was 211.
Thus, the trials turned on the credibility of Agent Hilton. His description of this studio apartment left the jury at the second trial with the impression that no one lived in the studio apartment and that nothing ever occurred in that studio except the preparation and sale of crack cocaine. The testimony of the family members could have cast reasonable doubt on these claims by Agent Hilton.
In assessing the credibility of the witnesses who testified at the PCR hearing, the court determined:
To be sure, the relatives at the evidentiary hearing in this proceeding appeared to be credible, sincere and, of course, biased in favor of the defendant. The photos that were offered by defense in the proceeding showed the furniture that was allegedly in place in the studio apartment at 211 First Avenue, Asbury Park, but upon further cross-examination by the Assistant Prosecutor, it was demonstrated that the photos were of the furniture which was allegedly in place in 2003-2004 at 211 First Avenue were taken of the furniture either
much later after defendant moved out of 211 First Avenue or much earlier when defendant lived at 319 Seventh Avenue.
Relying on State v. L.A., 4 33 N.J. Super. 1 (App. Div. 2013), the court granted defendant's petition, reasoning:
The test under the applicable case law is not whether this [c]ourt finds these proffered witnesses credible and believable, but rather if there is a "reasonable probability that but for the attorney's failure" to call these witnesses, "there would have been reasonable doubt about the defendant's guilt." [(Citation omitted).] That standard has been met by defendant in this proceeding. Certainly the credibility of defendant's mother and sister would be subject to attack for being biased in favor of the defendant and certainly [S.S.'s] credibility would be questioned as a result of his several felony drug convictions, but when this proffered testimony is juxtaposed against the uncorroborated testimony of Agent Hilton, the jury could find reasonable doubt. Apparently that may have happened at the first trial when the landlord contradicted Agent Hilton's description of the studio apartment and its content and use. When that seemingly unbiased witness faltered at the retrial on the significant points of the child not going into the apartment and limited testimony about the extent and nature of the studio being used to cook food, it was no surprise that trial counsel conceded at this hearing that his theory of defense was largely eviscerated by [C.G.'s] faltering testimony.
The experienced defense trial counsel testified candidly in this proceeding, that at that point of the retrial, he knew that his theory of defense to the first degree charge was "all but dead." . . . [W]hile the proposed witnesses could have their
credibility impeached as being biased as well as [S.S.'s] prior felony convictions, their testimony would be simple and uncomplicated and directly contrary to the description of the studio apartment offered by Agent Hilton. . . . [W]hile the State presented evidence sufficient to sustain a conviction which was affirmed on appeal, when the first jury heard a description favorable to the defense from the unbiased landlord, [C.G.], reasonable doubt in all likelihood was created. When that testimony was weakened at the retrial, however slightly, the defendant was convicted.
II
Claims of ineffective assistance of counsel (IAC) are generally governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d. 657 (1984), and adopted by this Court in interpreting the New Jersey Constitution. See State v. Allah, 170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987). To be entitled to a new trial based on IAC, a defendant must make a two-part showing:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Defendant bears the burden of proving both elements of an IAC claim by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]
In determining whether defense counsel's representation was deficient, "'[j]udicial scrutiny . . . must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).
In determining whether defense counsel's alleged deficient performance prejudiced the defense, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris, 181 N.J. 391, 432 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
An appellate court must give deference to the trial court's factual findings when supported by adequate, substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). However, under established rules of appellate review, we are not bound by and give no deference to the legal conclusions of the trial court. Harris, supra, 181 N.J. at 415. And for mixed questions of law and fact, we give deference to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings. Id. at 416 (citing State v. Marshall, 148 N.J. 89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)). "Assessing IAC claims involves matters of fact, but the ultimate determination is one of law[.]" Id. at 419.
Judged by these standards, there is no basis for concluding that trial counsel's performance was deficient. First, defendant failed to "overcome the presumption that, under the circumstances," trial counsel's strategic decision not to call the proffered witnesses "'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d 674-75 (quoting Michel, supra, 350 U.S. at 101, 76 S. Ct. at 164, 100 L. Ed. at 93).
We note that defendant's testimony at the PCR hearing that he specifically requested trial counsel to call the proffered witnesses conflicted with the testimony of trial counsel, a conflict that the PCR court did not address. However, since defendant's IAC claim is predicated more on whether trial counsel's action or tactic was reasonable, rather than the truthfulness of counsel, this omission by the PCR court does not preclude the resolution of the IAC claim on appeal. See Harris, supra, 181 N.J. at 419-20.
It is well established that "[i]n matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991). Moreover,
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
[Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d 695.]
It is axiomatic that one of the most difficult strategic decisions that any trial attorney must confront is determining which witnesses to call to the stand. State v. Arthur, 184 N.J. 307, 320 (2005).
A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential." Strickland, supra, 466 U.S. at 689, 693, 104 S. Ct. at 2065, 2067, 80 L. Ed. 2d at 694, 697.
[Id. at 320-21.]
Trial counsel's decision not to call the proffered witnesses was entitled to highly deferential review by the PCR court, a standard to which we are convinced the PCR court failed to abide. Although trial counsel had no recollection of being asked to call the proffered witnesses, he testified that he would have rejected such a request. He based his decision on the fact that C.G. was a neutral and independent witness and was able to provide the same testimony as defendant's mother, sister or childhood friend without being subject to impeachment because of familial bias or any prior criminal record. Even if trial counsel had been asked and failed to investigate or take statements from them as potential witnesses, there is no reason to believe that, had he done so, he would have called them for the same reasons he expressed.
Further, it was reasonable for trial counsel to assume that C.G. would testify consistent with her testimony at the first trial and, despite his testimony to the contrary, she essentially did.
The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'
[State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).]
This is not such an instance. There was a reasonable basis for trial counsel's strategic decision not to call the proffered witnesses because their testimony would not have added anything to the defense and could have undercut the independence of C.G.'s testimony. Further, at the second trial, once trial counsel perceived a change in the effectiveness of C.G.'s testimony, adding additional defense witnesses at that juncture presented a host of procedural and legal issues that trial counsel would have been hard-pressed to overcome. See, e.g., R. 3:13-3(b)(2)(c).
Moreover, since the content of C.G.'s testimony was essentially the same in both trials, trial counsel's concern apparently stemmed from her demeanor, body language or facial expressions rather than the content of her assertions. Indeed, in relation to her appearance at the first trial, trial counsel characterized her appearance at the second trial as "tentative, nervous." He thought she went from a "vibrant witness to someone who wished she were anywhere else but in court."
Even assuming trial counsel was deficient in failing to call the proffered witnesses, we are unable to find prejudice to the defense such that there is a "reasonable probability" the outcome of defendant's trial would have been different, or "the factfinder would have had a reasonable doubt respecting guilt." Strickland, supra, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. In making a prejudice finding, the PCR court must consider "the totality of the evidence before the judge or jury" and "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698-99.
Here, the verdict had overwhelming support in the trial record. Further, the testimony that would have been provided by the absent witnesses, who would have been subject to impeachment based on familial bias or prior criminal convictions, would have been essentially the same as the testimony that the jury heard from the detached and disinterested superintendent of defendant's apartment building. Evidence that is merely cumulative or repetitive does not create a reasonable probability that, had such evidence been presented at trial, the jury would have reached a different verdict. State v. Ways, 180 N.J. 171, 188-89 (2004); State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000); State v. Conway, 193 N.J. Super. 133, 174 (App. Div.), certif. denied, 97 N.J. 650 (1984).
Furthermore, the proposed testimony of the absent witnesses pertaining to defendant's personal use of his apartment would not bar a drug production facility conviction because defendant's exclusive use of the premises as a drug production facility is not an element of the offense. Rather, to establish that defendant maintained a drug production facility in violation of N.J.S.A. 2C:35-4, there need only be "some evidence of continuity in his use of [his] apartment to manufacture crack [cocaine]." State v. Kittrell, 145 N.J. 112, 122 (1996). "'Manufacture' means the production, preparation, propagation, compounding, conversion or processing of a controlled dangerous substance . . . and includes any packaging or repackaging of the substance or labeling or relabeling of its container." N.J.S.A. 2C:35-2. Evidence that manufacturing cocaine was the sole or exclusive use of or purpose for the apartment is not required under the statute. "Such evidence may be as here, that he used the apartment on more than one occasion as a manufacturing facility." Kittrell, supra, 145 N.J. at 122.
In this case, "continuity" was established through Hilton's observation of defendant manufacturing cocaine in his apartment on two separate occasions. Exclusivity, which the absent witnesses would have refuted, is not an element of the offense. Cf. State v. Allegro, 193 N.J. 352 (2008) (affirming denial of defendant's petition for PCR because trial counsel was not deficient in failing to present witnesses to establish that he did not live at the apartment that was the subject of his conviction for maintaining or operating a drug production facility). Consequently, defendant did not satisfy either prong of the Strickland test as he failed to prove that his trial attorney's performance was deficient or that there existed a reasonable probability that the absent witnesses' testimony would have affected the jury's verdict.
The PCR court relied on the standard enunciated in L.A. in determining that there was a reasonable probability that but for trial counsel's failure to call the proffered witnesses, there would have been reasonable doubt about defendant's guilt. In L.A., we provided the following guidance in evaluating an IAC claim based on counsel's failure to call an absent witness:
In considering the impact of the absent witness, a court should consider: "(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses
called; and (3) the strength of the evidence actually presented by the prosecution." All three factors derive from the court's obligation under Strickland to consider the totality of the evidence in making its prejudice determination.We added that "a PCR court must unavoidably consider whether the absent witness's testimony would address a significant fact in the case, and assess the absent witness's credibility." Id. at 15. Here, we conclude that the PCR court incorrectly determined that the absent witnesses' testimony would address a significant fact in the case. The PCR court, which was not the trial court, also incorrectly assessed the strength of the evidence actually presented by the prosecution.
[L .A., supra, 433 N.J. Super. at 16-17 (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996)).]
Unlike this case, the circumstances in L.A. that mandated granting defendant's petition for PCR were clear-cut. There, defendant's fifteen-year-old biological daughter accused him of molesting her on three separate occasions, one of which purportedly occurred at defendant's home where he resided with his wife, who was the victim's step-mother, and their son. At trial, defendant testified and denied the charges. Defendant specifically testified that his wife and son were present at his home when one of the sexual assaults allegedly occurred. Id. at 7-8.
Defendant's petition for PCR was based largely on his trial counsel's failure to interview defendant's wife and son and to call them as exculpatory witnesses to contradict the victim's testimony and bolster defendant's version of what occurred at defendant's home when they were present. Id. at 9. Defendant's wife would also have testified that the victim had a history of lying and that the victim's behavioral issues, which were purportedly caused by the molestation, actually preceded the alleged molestation. Id. at 10.
Under these circumstances, we concluded that it was reasonably probable
that the jury would have found reasonable doubt about defendant's guilt, had it heard from the absent witnesses. . . . The jury would have had to believe [the victim] beyond a reasonable doubt, notwithstanding the apparently credible testimony of [her stepmother], the testimony of [her half-brother], and the now-corroborated testimony of defendant.See also State v. Pierre, 223 N.J. 560 (2015) (reversing denial of defendant's petition for PCR and finding that his attorney was deficient in failing to present evidence, including the testimony of absent witnesses, that could have reinforced defendant's alibi and defendant was prejudiced because there was sparse evidence implicating him in the crimes). Unlike L.A., where the strength of the State's case rested entirely on the uncorroborated testimony of the victim, in this case, the strength of the State's case rested on the testimony of a federal agent whose account of purchasing significant amounts of cocaine from defendant on three separate occasions was corroborated by the cocaine itself.
[Id. at 18.]
In L.A., the PCR court had determined "that defendant had satisfied the first prong of the Strickland test, namely that counsel was 'deficient' in failing to call [defendant's wife] as a witness because her testimony 'would have been helpful to put [the victim]'s credibility in issue. Id. at 9 (citation omitted). Defendant's trial counsel testified at the PCR evidentiary hearing and conceded that
he was negligent in not interviewing defendant's son and wife. He admitted that he was a heavy user of heroin, and could not be certain whether it affected his performance. He stated that he was disbarred after defendant's trial. He explained that he failed to perform legal services for clients, but kept their retainers.
[Id. at 12].
The purpose of the constitutional guarantees of effective assistance of counsel "is simply to ensure that criminal defendants receive a fair trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.; see also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) ("The test [of ineffective assistance] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.") (quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992), cert. denied, 514 U.S. 1131, 115 S. Ct. 2008, 131 L. Ed. 2d 1008 (1995)), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103 (1995). Thus, "[t]he test is not whether defense counsel could have done better, but whether he met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
A review of the complete trial transcript shows that trial counsel made an objectively reasonable decision regarding his overall strategy in defending the charges against defendant and that he conducted this defense in a reasonably effective manner. Indeed, the PCR court acknowledged that trial counsel aggressively attacked the credibility of Hilton by highlighting the unavailability of the audio tapes to corroborate Hilton's account of his encounters with defendant, underscoring the discrepancies in the amounts of the transactions and sales, and commenting on the failure of the State to produce the confidential informant to corroborate Hilton's account of the dates of meetings and phone calls.
Further, while trial counsel had no specific recollection of any requests to call defendant's mother, sister and childhood friend as defense witnesses, he testified that he would not have called them anyway. That decision was an objectively reasonable decision based on his assessment of the evidential value of any testimony they would have provided on defendant's apartment, its contents and its use beyond that which was already provided by C.G., a neutral and detached witness.
While the PCR court granted defendant's petition for PCR based on the IAC claim relating to trial counsel's failure to call the absent witnesses, the court explicitly rejected the additional grounds relied upon by defendant to establish IAC. The court determined that the claims were procedurally barred pursuant to Rule 3:22-4, barring consideration of issues that could have been presented in prior proceedings, and Rule 3:22-5, barring consideration of issues already decided in prior proceedings.
Specifically, the court determined that the challenge to Hilton's qualifications to testify as an expert witness was addressed on the merits in defendant's direct appeal. Likewise, the court determined that defendant's challenge to the prosecutor's exercise of a peremptory challenge to excuse the only African-American member of the jury panel was addressed on the merits in defendant's direct appeal. Similarly, the court determined that defendant's challenge to the chain of custody was without merit and should have been raised in defendant's direct appeal as the facts were extant in the trial record.
The court also rejected defendant's challenge to the adequacy of the related expert witness jury charge. Although this issue was not explicitly raised in defendant's direct appeal, it should have been. See R. 3:22-4(a).
On appeal, defendant did not advance these rejected claims to support his IAC argument. Ordinarily, we would, therefore, deem these arguments waived. Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining failure to address an issue in a merits brief is considered abandoned); see also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2016) (stating "an issue not briefed is deemed waived.").
However, we have considered these arguments since "appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). We conclude that these arguments are without sufficient merit to warrant further discussion, R. 2:11-3(e)(2), and reject them substantially for the reasons stated by the PCR court. Therefore, we are satisfied that trial counsel's representation of defendant fell "within the wide range of reasonable professional assistance" to which an accused is entitled and that defendant received a "fair trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
We also conclude that an evidentiary hearing was not required on these issues because defendant failed to present a prima facie case of IAC. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). --------
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION