MURPHY v. NOGAM et al
Filing
33
OPINION. Signed by Judge Kevin McNulty on 1/3/18. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARIUS MURPHY,
Civ. No. 14-4268 (1(M)
Petitioner,
OPINION
V.
PATRICK NOGAM, et a!..
Respondents.
KEVIN MCNULTY. U.S.D.J.
I.
INTRODUCTION
The petitioner, Darius Murphy, is a state prisoner currently incarcerated at the East Jersey
State Prison in Rahway. New Jersey. He is proceeding prose with a habeas petition pursuant to
28 U.S.C.
§ 2254. Mr. Murphy was convicted by a jury in 1997 of felony murder, robbery,
aggravated manslaughter, endangering the welfare of a child, and related charges, and is
currently serving an aggregate sentence of thirty years with a thirty-year period of parole
ineligibility. His petition raises multiple claims ranging from ineffective assistance of counsel to
errors in the trial coun’sjuni instructions. For the following reasons, the habeas petition will be
denied.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The following factual background is taken from the decision of Superior Court of New
Jersey, Appellate Division, dated June 15, 1999, on Murphy’s direct appeal from his conviction)
State v. Murphy, No. A-2262-97T4 (N.J. Super. Ct. App. Div. June 15, 1999) (copy at
ECF no. 12-23). More precisely, the decision on Murphy’s appeal (see Id. slip op. at 3) attaches
and incorporates by reference the factual backuround from the appeal of one of Mr. Murphy’s
co-defendants, Michael Ricks. State v. Ricks, No. A-4l 16-96T4 (N.J. Super. Ct. App. Div. June
On September 7, 1995, Janice Gordon lived in an apartment at
69 University Place in lrvington with her two sons. two nephews
and her boyfriend. Corey Davis. The apartment was located in a
four family, two story building with two apartments on each floor.
One second floor apartment was occupied by Gordon and Davis.
the other by the Komegay family.
Upon arriving home from shopping on the night of September 7,
1995, Gordon parked her car in front of the house, and started to
her building with her shopping bags. While doing so, she was
approached by a man wearing dark clothes. The man asked her for
a light. Gordon replied that she did not have one and proceeded up
the front porch stairs. At that time, the man grabbed her by the
neck and placed a gun to the back of her neck. Retold her not to
scream.
Gordon testified that two other males then approached with masks
on their faces, one facial covering was white and the other black.
Gordon recalled that afier one of the men was unable to open the
building door with her key, she was forced to open the outer door
and inner door to the apartment and was then asked “[w]here’s he
at?” She pointed to the bedroom where Davis was asleep and the
man with the black mask walked into bedroom. While holding a
gun, the man bent over Davis and yelled for him to get up.
Davis jumped up and began struggling with the man with the black
mask as Gordon screamed for Davis not to fight. The second man
then walked into the bedroom, a gunshot was fired, and although
Gordon could “not really” see what was happening, she testified
that she “heard somebody fall.” Next, the man with the black mask
screamed at Gordon “[w]here’s the money at?” Gordon testified
that at this point Davis was lying on the floor and the baby with
whom he was sleeping awoke and sat up in the bed. Stating “I’ll
get the money,” Gordon went to the bedroom and gave “him”
money from a drawer. There were two people in the bedroom, the
man with the black mask and the man that had been holding her.
Gordon testified that the man entering the house, who was also the
second man to enter the bedroom, fled prior to her entering the
room.
Believing there to be more money. Gordon testified ‘[h]e took the
gun and pointed it at my baby and he threatened to shoot him if!
didn’t give him the money.” Gordon gave him the contents of her
jewelry box and said there was no more money. Gordon was
15. 2009) (copy at ECF No. 12-24). The Murphy and Ricks appeals were decided separately,
albeit in opinions flied the same day.
7
placed in the bathroom and told that she would be killed if she
came out. The men then left the apartment and upon hearing the
door close, she called 911 two separate times. Later that night,
Gordon told the police that she did not believe that she could
positively identify the perpetrators.
At trial, Gordon stated that “money Ewas] normally kept in
the house.” and that she thought Davis was getting it from drugs.
Gordon also recalled that sometime in January 1996 the police
showed her an array of photos and, although she ‘wasn’t for sure if
that was him or not,” she selected a photo of co-defendant Murphy.
She identified him in court as the individual from the photo.
On December 1, 1995, Parker was arrested on another matter in
West Orange for attempted murder, robbery and other offenses.
and believed that he faced a possible sentence of”life without
parole” for these crimes. In exchange for a maximum term of
fifteen years flat, Parker agreed to enter into the cooperation
agreement with the prosecutor. According to Parker, he agreed that
he “would cooperate tmthftilly and give any information and
testify as I am at this trial.” He ftirther explained that ifhe did not,
he “would be prosecuted for those crimes from West Orange as
well as those [he] entered into on the agreement,” that he could
also be prosecuted for perjury and that he “would receive the life
sentence.” incident to the agreement, Parker told Dennis Masucci,
an investigator with the Essex County Prosecutor’s Office, that
defendant and the three other codefendants were his accomplices
in the Davis robbery-murder case.
Parker testified that Henderson and Koonce knew that Dayis was a
drug dealer. Koonce “set up” the robbery, and Henderson got
Parker to participate. Henderson thought Davis had between
$30,000 to $50,000 in the apartment and “that it wouldn’t be hard
to get into his home.” Parker testified that “[a]ll four ofus, Mr.
Henderson, Dip, as well as Kyemh and Michael,” surveyed the
building before deciding to commit the robbery.
...
...
On the night of the crime, Parker initially met Henderson and
Koonce about a block from Davis’ residence. Defendant and
Murphy arrived later. The five men decided to use Ricks’s gray car
as the getaway vehicle. Defendant parked it down the street from
Davis’ apartment. The five men sat in defendant’s car and
Henderson distributed weapons as they all discussed how to
perform the robbery. Parker had a .357 magnum. Murphy “a 322”
and either Henderson or Koonce had a black gun.
3
It was determined that Murphy would approach Gordon, whom
Koonce knew by sight, “and ask her for a light.’ With defendant in
the car parked down the block, the other three men were to “move
in,!’ and in fact did so. Parker and Henderson had ski masks,
Parker’s was black, and Koonce and Murphy had handkerchiefs
around their necks which were pulled up to mask their faces.
Parker stated that at the time the robbery commenced, they had
been outside for about one to one and one-half hours, and up to
thirty minutes of which was spent waiting for Gordon to return
home after she left the building. According to Parker. Murphy
approached her, asked “for a light,” grabbed Gordon by the arm
and placed his gun to her back of neck. Parker, Murphy and
Koonce then accompanied Gordon up the stairs while Henderson
“stayed downstairs” to watch the outside door. However. “he
would eventually also come upstairs.” When Gordon opened the
door to the apartment. Koonce “ran in” and “vent right to Mr.
Corey Davis who was asleep at the time and drew his gun on him.”
Parker testified that he witnessed a “struggl{e]” between Davis and
Koonce. Thereafter, Parker took hold of Gordon while Murphy
went into the bedroom with Koonce and Davis. According to
Parker, Murphy “stumbled” over the two men while his gun was
drawn, and it “went off at that time.” Koonce then “jumped up and
ran” out of the house. Within a minute. Henderson came upstairs
and informed Parker that someone entered the building. Michael
Komegav testified that upon entering the building he saw “tvo
masked men in the front doorway” and heard what sounded like a
female voice saying “no foo.” “Foo” was apparently Davis’
nickname. Komegay went to his apartment and called 911 and then
went to the Davis apartment. There he saw Davis on the floor with
his baby “right near his head.”
Either Parker or Henderson threatened to kill Gordon if she did not
give them the money which she gave to either Murphy or
Henderson along with her jewelry. Thereafter Gordon was locked
in the bathroom, and the men left. Further testimony by Parker
provided that all participants wore gloves and that Gordon was
“quite hysterical” and “upset” that night while she begged them not
to either kill her or hann the children.
State
Mzirpln’. No. A-2262-97T4. slip op. at 3 (N.J. Super. Ct. App. Div. June 15, 1999) (copy
at ECF no. 12-23), incorporating by reference from State v. Ricks, No. 44! 16-96T4. Slip Op. at
5-9 (N.J. Super. Ct. App. Div. June 15, 1999) (copy at ECF no. 12-24).
4
Mr. Murphy appealed his judgment and conviction to the Superior Court of New Jersey,
Appellate Division. The Appellate Division affirmed the conviction on June 15, 1999. (See
siipra:
decision at ECF no. 12-23). The New Jersey Supreme Court denied certification on
November 5, 1999. Sec State
v.
Murphi’. 744 A.2d 1208 (N.J. 1999).
Thereafter, in July 2000, Mr. Murphy filed a post-conviction relief (“PCR”) petition in
the Superior Court of New Jersey, Law Division, Essex County. The Law Division denied the
PCR petition on August 30, 2004. On October 13, 2004, Mr. Murphy appealed the denial of PCR
to the Appellate Division. On May 22, 2007, the Appellate Division remanded and ordered that
the trial court conduct an evidentiary hearing regarding Mr. Murphy’s ineffective assistance of
counsel claims. See State
i’.
Murphy, No. A-0707-04T4, 2007 WL 1468592 (N.J. Super. Ct. App.
Div. May 22, 2007).
On remand. the court held hearings on April 18, 2008, May 24, 2010, July 1,2010, and
September 28, 2010. On September 28, 2010, the PCR court denied the petition. Petitioner again
appealed on August II. 2011, and on March 25, 2013. the Appellale Division affirmed the PCR
court’s denial of the petition. See State v. Michael Ricks and Darius Miuphy, No. A-5959-10T3,
2013 WL 11897862 (N.J. Super. Ct. App. Div. March 25, 2013). The New Jersey Supreme Court
denied certification on April 3,2014. See State v. Pvhupln’, 88 A.3d 191 (N.J. 2014).
In July 2014, this Court received Mr. Murphy’s federal petition for a writ of habeas
corpus pursuant to 28 U.S.C.
§ 2254. The petition raises thirteen grounds:
1. The Court’s instruction on identification was erroneous since it bolstered the state’s
identification case without referring to any of the evidence supporting petitioner’s
misidentification defense.
2. Petitioner’s right to a fair trial was gravely prejudiced when Lieutenant Masucci testified
that, in his opinion, Victor Parker had provided truthful information about the crime, and
when the prosecutor claimed in her summation that Park’s story had been corroborated
by their investigation.
3. Petitioner’s right to confront the witness against him was violated when the trial court
precluded counsel from asking about the circumstances of Victor Parker’s arrest because
that testimony could have provided crucial information about Parker’s motive to falsely
incriminate petitioner.
4. Petitioner’s Fifth Amendment rights were violated by the prosecutor’s suggestion in
summation that by failing to testify or “offer a defense,” petitioner was attempting to hide
from the collective evidence against him.
5. The court’s charge was prejudicially defective because it failed to provide any guidance
to the jury on how it should assess the issue of Victor Parker’s credibility with the
ftindamental evidential item the “cooperative agreement” between Parker and the state.
—
6. Trial counsel was ineffective for not investigating petitioner’s alibi.
7. Trial counsel was ineffective for not moving for a severance.
8. Petitioner was denied due process because the trial judge did not instruct the jury that
petitioner was not involved in the other crimes committed by Victor Parker.
9. The prosecutor violated petitioner’s right to due process by failing to disclose to the
defense statements made by Keith Henderson, as part of his pitch to enter into a plea
agreement. that he and Victor Parker were involved in the charged crimes and that
petitioner and the other defendants on trial were not involved.
10. Petitioner was denied the effective assistance of appellate counsel.
II. Trial counsel was ineffective for failing to exercise one of his remaining peremptory
challenges to excuse Juror B.D.
12. Petitioner was denied the right to fair trial and was prejudiced as a result of irregular
influences during jury selection.
13. Petitioner has been prejudiced by the incomplete verbatim record of the jury voir dire and
the state court erred in failing to try and reconstruct the lost record.
Respondent has filed an answer to the habeas petition stating that Mr. Murphy has failed to raise
viable grounds for relief. Mr. Fitzgerald has filed a traverse and an additional supplement to his
traverse. The matter is thus fully briefed and ripe for decision.
6
III.
HABEAS CORPUS LEGAL STANDARD
An application for writ of habeas corpus by a person in custody under judgment of a state
court can be granted only for violations of the Constitution, laws, or treaties of the United States.
See Engle c Isaac, 456 U.S. 107, 119(1982); see also Mason v. Mi’ers, 208 F.3d 414,415 n.1
(3d Cir. 2000) (citing 28 U.S.C.
§ 2254). Petitioner filed this petition for writ of habeas corpus
after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Mwphv, 521
U.S. 320, 326 (1997). Under AEDRA, federal habeas corpus relief is not available for any claim
decided on the merits in state court proceedings unless the state court’s adjudication of the claim
(I) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in state court. See 28 U.S.C.
§ 2254(d).
As a threshold matter. a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.” Lockvcr v. Anthade,
538 U.S. 63, 71(2003) (quoting 28 U.S.C.
under
§ 2254(d)(l )). “[C]learly established federal law’
§ 2254(d)( I) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable-application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
7
The AEDPA standard under
§
2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cu/en v. Pinho/ster, 563 U.S. 70, 1 8 (201 1). The
petitioner has the burden of proof and with respect to
§
2254(d)(1), review “is limited to the
record that was before the state court that adjudicated the claim on the merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256. 289-90 (3d Cir. 2008). Furthermore, the court will assume that. “[w]here there has
been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding
that judgment or rejecting the same claim rest upon the
same
ground.” Ylst v. Nunnenzaker, 501
U.S. 797, 803 (1991). Additionally, AEDPA deference is not excused when state courts issue
summary rulings on claims as “[w]hen a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 62 U.S. 86, 99 (2011) (citing Hart-is
IV.
.
Reed, 489 U.S. 255, 265 (1989)).
DISCUSSION
A. Ground One: Identification Instruction
In Ground One, Mr. Murphy argues that the trial court’s instruction on identification was
unfairly slanted. He contends that the instruction included specific references to the State’s trial
evidence on the issue of identification, but did not refer to his dcfcnse as to identification.
According to Mr. Murphy, this rendered the instruction fatally defective.
The last decision on this claim
was
from the Appellate Division during Mr. Murphy’s
direct appeal. That court addressed the claim as follows:
S
The trial judges charge on identification referred to the attorney’s “conflicting
contentions of the State and their respective clients in their summations.”
Here the defense presented no affirmative evidence on identification, and the
judge did not refer to the State’s evidence without referring to defendant’s
contentions. C’f State .v. Ethnz,nc/s, 293 N.J. Super. 113 (App. Div. 1996),
certif denied, 148 N.J. 459 (1997). The charge does not warrant reversal.
(Dkt. No. 12-24 at p. 6.)
The question here is not whether the jury instruction was consistent with state law as
such, but whether it resulted in a violation ofdue process standards:
The only question for us is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.”
It is well established that the instruction “may not be judged in artificial
isolation,” but must be considered in the context of the instructions as a
whole and the trial record. In addition, in reviewing an ambiguous
we inquire “whether there is a reasonable likelihood that the
instruction
jury has applied the challenged instruction in a way” that violates the
Constitution.... “Beyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”
...,
Esielle. 502 U.S. at 72—73 (citations omitted). Most pertinently here, the Due Process Clause
would be violated if an erroneous instruction rendered the trial as a whole unfair or “operated to
lift the burden of proof on an essential element of an offense as defined by state law.” Sm/i/i
Honi, 120 F.3d 400, 416 (1997). See also Jn
i.
IVinship, 397 U.S. 358, 364 (1970) (“the Due
Process Clause protects the accused against conviction except upon proof beyond a reasonable
doubt
...“);
Sandstmm v. Montana, 442 U.S. 510, 523 (1979) (jury instructions that suggest a
jury may convict without proving each element of a crime beyond a reasonable doubt violate the
Constitution).
Mr. Murphy is not entitled to federal habeas relief on this claim. As the Appellate
Division stated, Mr. Murphy did not present evidence in support of an identification defense;
there was no defense evidence for the instruction to refer to. The court’s instruction did state that
the defendants, as part of their general denial of guilt, contended that the State had not presented
9
enough reliable evidence to prove beyond a reasonable doubt that they were the perpetrators of
the crime. (Dkt. No. 19 at p.2.) The court also instructed the jury that the State bore the burden
of proof as to identification and that defendants had no burden to show that the crime was
committed by someone else. (Id.) The instruction fairly presented the issue to the jury. did not
undermine the burden of proof and did not render Mr. Murphy’s trial unfair. Based on the
record, I conclude that the Appellate Division’s denial of this claim was not contrary to, or an
unreasonable application of, clearly established federal law. Accordingly. Ground One will be
denied.
B. Ground Two: Masucci’s Testimony and Prosecutor’s Summation
In Ground Two, Mr. Murphy asserts that his right to a fair trial was prejudiced by Lt.
Masucci’s testimony that Victor Parker provided truthful infonnation and by the prosecutor’s
summation, which stated that Parker’s testimony had been corroborated by the investigation. I
will address those claims separately.
1. Masucci’s Testimony
Mr. Murphy argues that Mr. Masucci’s testimony improperly bolstered Parker’s
credibility. In particular, he points to Massuci’s statements that he “knew what [Parker] was
telling [him] was true” and that he found that Parker was telling the truth. (Dkt. No. 1 at p. 14)
The last decision on this claim was from the Appellate Division, which discussed it in
Mr. Ricks’s appeal and incorporated that discussion into its simultaneous opinion on Mr.
Murphy’s appeal. (See n.l, supra.) The Appellate Division addressed the claim as follows:
In essence, it is clear that the defcnse did not object to testimony about,
and even developed and emphasized the nature of, Parker’s agreement
with the State, the terms of which made clear, independent of any
testimony of Investigator Masucci, that the State by prosecuting this
matter and calling Parker obviously accepted Parker’s testimony as
truthful. As a result, independent of any lack of objection, we conclude
10
that any inappropriate references by Masucci to Parker’s veracity could not
have affected the result.
Defendant2 claims that Investigator Masucci improperly vouched for the
credibility of Parker and irnproper!y testified as to his truthfulness.
Masucci was the lieutenant in charge of the Organized Crime Section in
the Essex County Prosecutor’s Office who, as a homicide invcstigator at
the time, had been in charge of the Davis case investigation.
In December 1995. Masucci was contacted by the West Orange Police
Department to interview Parker v.’ho was in their custody. Parker claimed
to have “information about a homicide that happened in Essex County.’
Masucci met with Parker and realized that the homicide he referred
involved the death of Corey Davis. After receiving preliminary
information from Parker, Masucei checked his criminal history.
In answering questions regarding the investigation process. the following
colloquy took place during Masucci’s direct testimony:
Q:
Once you received the preliminary information
Parker, what did you do?
from
Mr.
A: Once I received the preliminary, being the case agent, I knew
that what lie was telling me was true in that he had to be somewhat
knowledgeable about it or be there for him to tell me what he was
telling me because you had to be there because I knew the facts of
what was going on in the case. At that time I vent back, I
evaluated my case, I went to my superior and explained to him the
situation.
Masucei further testified that Parker entered the cooperation Agreement
with the prosecutor and “limited” his prison exposure “to the 15 year term
of imprisonment.” In exchange Parker “had obligations that he had to be
truthful at all times and if[Masucci] found him in violation of any of the
agreement and anything [Masuceij found him not telling the truth in, in
any of the crimes, that he would violate this agreement.” Defendant
acknowledges that no objection was made to this testimony.
Subsequently, still during Masucci’s direct testimony, the following
occurred:
Did Mr. Parker indicate that there were other individuals
involved with him?
Q.
2
For clarity, references to “defendant” within this excerpt speak of Mr. Ricks, not Mr. Murphy.
II
A. Yes. He indicated that there were four other individuals.
MR. JEREJIAN [Murphy’s counsel]: Your Honor. I’m going to
object to what he indicated. I don’t think it is proper.
MS. GRAN [the ProseciLtor]: the counsel know[s], Mr. Parker will
be here.
THE COURT: Mr. Parker is going to testify. Do you want to be
heard?
MR. JEREJIAN: Yes.
THE COURT: All right. Side bar.
(At side bar.)
THE COURT: All right.
MR. JEREJIAN: Judge. the scene has been set for the Cooperation
Agreement, the fact that he took a statement and so forth. Perhaps
the stage has been set for Mr. Parker. It is hearsay and is improper
for this witness to disclose to the jury what Mr. Parker told him so
that is improper. Whether she’s going to call him or not call him.
Mr. Parker should be the source of that evidence. Also, [Yjour
Honor, I would add, although I didn’t object at the lime to
highlight, I’m not objecting specifically as to that occurred but
perhaps in terms of future questions, I wish to put on the record
that this witness seems to be coming up with conclusions as to
what Mr. Parker is telling him. In other words, based on what he
told me, I determined it was twthfiil and whatnot.
THE COURT: I think that what he testified to was based upon
what he knew as the agent assigned to this investigation what he
was telling him was consistent with what he already knew.
MR. JEREJ IAN: That’s not what he said.
THE COURT: He may not have phrased it that way but there was
no objection.
MR: JEREJIAN: I understand that, but in this particular case the
State can proffer where she’s going. If she’s going to go into what
Parker told him in that statement, that is completely improper.
12
THE COURT: I was just going to do that.
MS. GRAN: Clearly, its my understanding that the prior
identifications are an exception to the hearsay rule. I’m not going
into word for word but what Mr. Parker said.
THE COURT: That he identified
—
MS. GRAN: The individuals and the photo arrays.
THE COURT: I’m going to permit that. Her position is on the
record.
Counsel for defendant, Henderson and Koonce said nothing.
After testifying that Parker informed him of the names or nicknames of the
other four individuals involved, Masucci was asked what he did as a result
of receiving that information. He responded:
I took a statement from him on this particular matter and I referred
to my supervisors as to actually what happened and what he said
and everything he said was consistent to, basically consistent to the
statements I took from other persons, including Janice Gordon and
Mr. Komegay.
Again, there was no objection placed on the record by defense counsel.
Defendant contends that the statement of Murphys counsel at side bar
should be treated as if he voiced an objection to Masucci’s testimony and
that no objection was made to his statements relating to Parker’s credibility
on cross because of the rulings made at that side bar. On the crossexamination Masucci testified that lie “investigated” the information given
to him by Parker and found it to be “consistent,” with what Gordon had
said, that he checked the information in order to “prove that he’s telling the
truth,” and that after investigation he decided the information could only
have been known by “a participant” and “found out that [Parker] was
telling me the tniIh.”’”1 Defendant again acknowledges that no objection
was made to these statements. To the contrary, the defense was
endeavoring to show that Masucci was willing to accept Parker’s story
without meaningful “coroborat[ion]” even though it was given to obtain a
limited sentence exposure for numerous serious crimes.
[Fn.] In response to that answer counsel responded: Okay. So at
first you were suspect but then you went out and you looked into it
and you investigated it over a series of days to satisfy yourself
that he was being truthflul with you. is that what you’re saying?
...
13
Generally, “it may be fair to infer from the failure to object below that in
the context of the trial the error was actually of no moment.” State v.
Macon, 57 N.J. 325, 333 (1971) (rethsing to entertain counsels rationale
that objecting would have left the jury with an unfavorable impression). In
the absence of an objection. defendants argument on appeal must be
considered under the plain error doctrine. State v. Engel, 249 N.J. Super.
336, 377 (App. Dlv.), cerUf denied, 130 N.J. 393 (1991); R 2:10-2.
We find no plain error warranting reversal. There was no objection by
defendant to Masuccis testimony and, in context, the defense was
endeavoring to develop that Masucci was wrong in blindly accepting the
story of a known liar and criminal. It was frilly developed that there was
never any corroboration of the identifications made by Parker to Masucci
of the perpetrators involved with him, as opposed to the events which
occurred, and there was no real contest that the events occurred as
recounted (and corroborated) by Gordonjb] Moreover, given the
extensive development even by the defense of Parker’s Cooperation
Agreement and plea agreement with limited custodial exposure, the jury
had to understand that the indictment was being prosecuted because the
prosecutor chose to accept Parker’s story for purposes of pursuing the
case. In any event, this is not a case in which an expert witness testified as
to the credibility of the witness or suggested that, therefore, a defendant
was guilty. See State v. Jo.. 130 N.J. 554 (1993); State v. Odmit. 116 N.J.
65.79 (1989); see also State v. Michacls. 136 N.J. 299. 323 (1994).
Moreover, much of the testimony now challenged on appeal was
developed on cross examination by other defendants to which defendant
either objected nor moved to strike as unresponsive. See State v. Ste/and/i,
153 N.J. Super. 452, 457 (App. Div. 1977), rev’d on other grounds, 78
N.J. 418 (1979).
-
-
[Fn] Defense summations suggested different things, including that
Gordon was angry with Davis for cheating on her and may have
known Henderson who, despite the timing of the events in
question, had intimate knowledge of Gordon’s apartment, to the
contention that the testimony of Gordon and Parker differed
in.some respects and, therefore, the jury had to find that Parker was
lying in much of his testimony.
(Dkt. No. 12-24 at pp. 5; 1 1-16.)
The violation of a right created by state law is not cognizable as a basis for federal habeas
relief. Este//e v. MCGLIIPe, 502 U.S. 62. 67—68 (1991) (“We have stated many times that ‘federal
habeas corpus relief does not lie for errors of state law.’
14
“)
(quoting Lewis v. Jefl&s, 497 U.S.
764, 680(1990)). Thus, Mr. Murphy cannot obtain relief for any erroneous evidentiary rulings
under state law unless they rise to the level of a deprivation of due process. Estdlle, 502 U.S. at
70 (“[TJhe Due Process Clause guarantees fundamental elements of fairness in a criminal trial.”)
(quoting Spencer v. Texas, 385 U.S. 554, 563—64(1967)). For a habeas petitioner to prevail on a
claim that an evidentiary error amounted to a deprivation of due process, lie must show that the
error was so pen’asive as to have denied him a fundamentally fair trial. Keller
i’.
Larkins, 251
F.3d 408, 413 (3d Cir.200 I) (holding that admission of evidence may violate due process where
the evidence is so inflammatory as to “undermine the fundamental fairness of the entire trial”).
See also (‘on. Warren, Civil Action No. I l—7132(FSH). 2013 WL 6022520, *3 (D.N.J.
Nov.13. 2013).
The Appellate Division’s denial of this claim was not contrary to clearly established
federal law. The defense explored Parker’s potential motivation to provide untruthful
information in order to reduce his sentencing exposure. As the Appellate Division noted, both
sides looked to Parker’s cooperation agreement as a relevant factor in considering whether the
information Parker provided was credible and reliable. Moreover, the Appellate Division
correctly observed that there was no corroboration of Parker’s identifications of the other
defendants; the challenged statements offered by Mr. Massuci related to the events of the crime
itself, about which there was little dispute. In addition, defense counsel, including Mr. Murphy’s
counsel, had ample opportunity to cross-examine Mr. Massuci and question his acceptance of
Mr. Parker’s information. (See Dkt. No. 12-7 at pp. 57-62; Dkt. No. 12-8 at pp. 7-13.) Viewing
the record as a whole. Mr. Massuci’s testimony did not render Mr. Murphy’s trial flindamentally
unfair. Mr. Murphy is therefore not entitled to federal habeas relief on this claim.
15
2. Prosecutor’s Summation
Mr. Murphy also argues that the prosecutor’s summation was improper because the
prosecutor stated that the information Mr. Parker provided had been corroborated by the
investigation and suggested that she, the prosecutor, knew the defendants were guilty.
The last decision on this claim was from the Appellate Division (again, on Mr. Ricks’s
appeal. incorporated in the simultaneous decision on Murphy’s appeal. See n. I, supra.) The
Appellate Division addressed this daim as follows:
Defendant also argues that reversal is required because the prosecutor in
her summation stated that the information received by Masucci was
“corroborated.’ The prosecutor further stated that under the agreement
Parker was subject to prosecution if the state learned that the information
he gave was contradictory or false. Defendant insists that the prosecutor
was therefore suggesting that she knew defendant was guilty of the
offenses charged.
We agree with defendant that a prosecutor cannot suggest that he or she
has personal knowledge of guilt or that an investigator would not lie
because of non-evidential consequences to the officer. State v. Frost, 158
N.J. 76, 85-86 (1999). But here the prosecutor’s comments in summation
were based on evidence developed at trial including testimony concerning
the agreement and cross-examination directed to Masucci’s pursuit of the
investigation based thereon.
The prosecutor’s summation drew reasonable inferences from the evidence
presented at trial and did not amount to prosecutorial misconduct requiring
reversal. See State i’. Ernst, sztpra; State i’. Morton, 155 N,N, 383, 458
(1998).
(Dkt. No. 12-24 at pp. 16-17.)
A criminal defendant’s due process rights are violated if prosecutorial misconduct
renders a trial ftmdamentally unfair. See Darden
i.
JVabright, 477 U.S. 168. 82-83 (1986). A
habeas petition will be granted for prosecutorial misconduct only when the misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.
at 181 (internal quotation marks and citation omitted). A prosecutorial misconduct claim is
16
examined in “light of the record as a whole” in order to determine whether the conduct “had a
substantial and injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson,
507 U.S. 619, 638 (1993). A “reviewing court must examine the prosecutor’s offensive actions
in context and in light of the entire trial, assessing the severity of the conduct, the effect of the
curative instructions, and the quantum of evidence against the defendant.” Moore
i’.
Morton, 255
F.3d 95. 107 (3d Cir. 2001).
Upon review of the record, I find that the Appellate Division’s decision on this claim was
not an unreasonable application of clearly established federal law. A prosecutor is entitled to
considerable latitude to argue the evidence and reasonable inferences that can be drawn from that
evidence. See United States v. IVenne, 939 F.2d 108, 117 (3d Cir. 1991). As the Appellate
Division stated, the prosecutor here argued that the july should draw permissible inferences
based on Mr. Parker’s testimony and how it aligned with other evidence in the case, including
Ms. Gordon’s testimony. Moreover, the prosecutor’s summation followed and responded to the
summations of defense counsel, wherein counsel disputed whether information Parker provided
had in fact been corroborated. See e.g., Dan/en. 477 U.S. at 182 (noting that the “invited
response” nature of the prosecutor’s comment is used to determine the effect on the trial as a
whole).
The prosecutor’s statements did not constitute vouching in the sense of suggesting guilt
based on extra-record evidence or knowledge. And the record would not support a finding that
the challenged statements, even if they had been improper, would have had a substantial and
injurious effect or influence on the jury’s verdict.
Mr. Murphy is not entitled to federal habeas relief on this claim. Accordingly, Ground
Two will be denied.
17
C. Ground Three: Confrontation Clause Claim
In Ground Three, Mr. Murphy alleges that the trial court violated his right to confront the
witnesses against him by precluding defense counsel from asking about the specific
circumstances surrounding Parker’s arrest for another offense. Mr. Murphy argues that such
testimony could have provided information about Parker’s motive to falsely incriminate Mr.
Murphy.
The ‘ast court to address this claim was the Appellate Division in Mr. Ricks’s appeal of
the same issue (again, incorporated in the simultaneous decision on Murphy’s appeal. See n.1,
supt a.). The Appellate Division discussed this claim as follows:
During her opening statements, defendant’s counsel attempted to refer to
Parker’s “shootout” with police before he was arrested in West Orange.
She stated that Parker was arrested in December 1995 while committing
an armed robbery at an A&P, and charged “with armed robbery and three
counts of attempted murder on police officers because he was involved in
a shootout at that location.” The judge sustained the State’s objection and
directed the jury to disregard the statement.
Defendants attorney did not ask for a side bar or endeavor to suggest that
her comment related to Parker’s motive to lie in this case. Counsel
proceeded to inform the jury that Parker knew he was facing a life
sentence and offered information to the police including “naming names.”
After referring to Parker as a four time convicted criminal, in an attempt to
rationalize why Parker named the names he did, counsel stated, “1 don’t
know why he did it,” “[h]e would have named his own mother if it would
have meant that he would have seen the streets again. That was his motive
to lie.”
After all opening statements were concluded and the jury was excused, the
trial judge stated his rationale for allowing examination of Parker
regarding the specific charges that were dismissed pursuant to the
agreement while he would not allow examination regarding their
underlying facts. The judge stated:
Here I would have a concern separate and apart from that, and that
is that many trials here, which we would have. start getting into
specific facts. would have the potential to shift the focus from the
larger case, but there are at least one, maybe more, there are certain
18
defendants who are parties to this case that are also defendants in
other cases with Mr. Parker. It seems to me that there’s a likelihood
of prejudice to the other cases involving some of these defendants
that are possible if the door is opened and we stan getting into
testimony with respect to specific incidents.
If 1 weigh and balance the various factors, it would seem to me that
there’s a potential also to mislead the jury since a number of those
charges have been dismissed, they haven’t been proved by the
State, they are simply accusations, as these charges are, and as you
have also amply demonstrated to the jury today by way of your
opening statements. It would certainly add unnecessary time to the
trial of this case without adding any corollary probative value.
You certainly are free to cross with respect to the specific charges
that have been dismissed pursuant to the plea agreenient but I don’t
believe there’s any basis to get into the specific underlying facts
with regard to those various charges, and I know that at least with
respect to Mr. Ricks, he is named in quite a few of those other
mattersJ”
The judge recalled that defendant was “named in quite a few of those other
matters.”
[Fn.] Counsel for Murphy responded that he “agree[dj with
everything” the judge said and thought it would be “improper” to
get into the facts of the other cases.
Defendant now claims that inquiry into the underlying facts of the
dismissed charges and particularly the West Orange robbery was
admissible to prove Parker’s motive to fabricate the story. He contends
that:
If the defense had been able to cross-examine Victor Parker about
the facts of the West Orange case, it could have established that
Parker had a different motive for implicating Michael Ricks other
than merely reducing his own sentencing exposure. According to
Parker’s guilty plea, which was marked at trial as S-26, Ricks was
also the driver of the getaway car in the West Orange robbery.
Parker testified that when the police arrived, Ricks took off in the
getaway car, apparently leaving Parker and Henderson stranded.
Parker was shot in his right wrist and then arrested. One would
assume that Parker was not at all happy about being abandoned at
such a crucial moment.
19
In other circumstances, development of the facts surrounding the West
Orange event, as a motive for the identification of defendant and even his
friends as co-perpetrators, might be warranted. But proof of involvement
of Parker with defendant in another robbery or other crimes would inure to
the prejudice of all defendants, including Ricks. Moreover, the facts of the
West Orange robbery would prejudice Henderson who, defendant now
says, was involved with Parker and him in the West Orange robbery. The
evidence, even if it could somehow be fairly sanitized, would reveal that at
least defendant and Henderson were involved in other crimes and in other
crimes with Parker from whom they tried to distance themselves. In any
event, for purposes of defendant’s appeal we conclude that the judge’s
ruling properly balanced the relevant factors under N.J.R.E. 403,
particularly in the absence of a request for severance by defendant and an
explanation to the trial judge of the present claim regarding the impact of
the West Orange event on motive. In these circumstances, we find neither
a violation of the right to confrontation because of the extensive crossexamination about the cooperation and plea agreements, nor an abuse of
the trial judge’s considerable discretion under N.J.R.E. 403.
(Dkt. No. 12-24 at pp. 17-20.)
In its opinion on Mr. Murphy’s direct appeal, the Appellate Division added:
As to Point III, defendant did not claim he was involved with Parker in
other offenses including the West Orange robbery during which Ricks
stranded Parker, and defendant did not claim Parker had a motive to lie
with respect to him. Eliciting information about Parker’s involvement in
other crimes with codefendants on trial could have prejudiced defendant as
well as them, and in any event, he did not seek a severance to pursue the
issue of motive in a manner which would not have unduly prejudiced the
co-defendants. Nor does he suggest how inquiry concerning the details of
Parker’s other crimes would have inured to his benefit. Moreover, when
the trial judge ruled that there could be no development of the specific
facts of crimes not a subject of the trial, this defendant’s attorney said “I
agree with everything that your Honor said I have absolutely no
intention of getting into the underlying facts of the case. I think that’s
improper.”
...
(Dkt. No. 12-23 at p. 5.)
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right
...
to be confronted with the witnesses against him.” U.S. CONST. amend. VI.
“The main and essential purpose of confrontation is to secure for the opponent the opportunity of
20
cross-examination.” Dclauvre
i’.
Van Arsdall, 475 U.S. 673, 678 (1986). However, trial courts
may impose limits on the extent of cross-examination without running afoul of the Confrontation
clause. Id. at 679. “[TIrial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice. confttsion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Id.
I find that the Appellate Division’s denial of the claim was not contrary to, or an
unreasonable application of, clearly established federal law. The defendants were not denied the
opportunity to cross-examine Parker and were permitted to inquire into specific charges that
were dismissed as part of his plea agreement. They had ample latitude to explore the theme of
Parker’s motive to lie based on his desire to avoid substantial punishment for the criminal
charges against him. The trial court did not pennit inquiry into the specific facts of those crimes
because doing so would have been prejudicial to certain defendants. This sort of limitation is
permissible. Van Arsdall, 475 U.S. at 679.
In addition, Mr. Murphy’s counsel agreed with the limitation, presumably for strategic
reasons. And as the Appellate Division pointed out, one of the main reasons for bringing out
these circumstances (revenge against Ricks for abandoning Parker at the scene of the other
offense) had nothing to do with Murphy.
Mr. Murphy’s Confrontation Clause claim lacks merit and does not entitle him to habeas
relief. Accordingly, Ground Three will be denied.
2!
D. Ground Four: Fifth Amendment Claim Regarding the Prosecutor’s Summation
In Ground Four, Mr. Murphy argues that his Fifth Amendment right against selfincrimination was violated by the prosecutor’s suggestion that by failing to testify or offer a
defense, Mr. Murphy was attempting to “hide” from the collective evidence against him.
The last court to discuss this claim was the Appellate Division
(, in the consideration of
Mr. Ricks’s appeal (again, incorporated in the simultaneous decision on Murphy’s appeal. See
n.l, supra.). The Appellate Division discussed the claim as follows:
In her summation, the prosecutor asked the jury to view the evidence
presented as a whole rather than in a “vacuum,” and stated that “the
defense has no obligation to offer a defense.” Regarding the reasonable
doubt standard, the prosecutor stated that it “is not a mathematical
standard, is not a scientific standard of proof, and is not a law of proof, a
shield behind which a defendant can hide from the collective evidence
against him.”
No objection was raised to these comments and, therefore, it is proper for
us to infer that the comment was not perceived as prejudicial or
unwarranted when taken as a whole. State v. Macon, 57 N.J. 325, 333
(1971); see also State i’. Frost, supra; State v. Ramseur, 106 N.J. 123, 32223 (1987); State v. Bucanis, 26 N.J. 45, 56-57, cert. detued, 357 U.S. 910,
78 S. Ct. 1157,2 L. Ed.2d 1160(1958). We do not read the summation as
embodying an improper comment on defendant’s failure to testify.
(Dkt. No. 12-24 at pp. 20-21.)
As discussed above, when reviewing a prosecutor’s comments in an opening or closing
statement, “[t]he relevant question is whether the prosecutor’s comments ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’ “Darde,z v.
Wainwright, 477 U.S. 168, 181 (1986) (quotingDon;zellvi’. DeChristo/öro, 416 U.S. 637
(1974)). Even on direct appeal, a comment on defendant’s silence will not be presumed; the court
will not lightly infer that the jury drew the most damaging possible meaning from the
prosecutor’s remarks. Sec Donnelly, 416 U.S. at 647.
77
I find that the Appellate Division’s denial of Mr. Murphy’s Fifth Amendment claim was
not contrary to clearly established federal law. Nor was its decision based on an unreasonable
determination of the facts. The challenged portion of the prosecutors summation reads as
follows:
When you look at the proofs before you, you don’t look at them in a
vacuum. You look at what the testimony of Janice Gordon tells you about
the testimony of Victor Parker, tells you about the testimony of Michael
Komegay. tells you about the testimony of the physical evidence. And we
know, as the Court told you, the defense has no obligation to offer a
defense, to open, to ask a question but if they do, choose to do so in the
course of the trial, it is subject to your scrutiny. A standard of law which
recognizes proofs from all sources and expects that you will consider them
as you indicated through your oath you will. A standard which is not a
mathematical standard, is not a scientific standard of proof, and is not a
law of proof, a shield behind which a defendant can hide from the
collective evidence auainst him.
(Dkt. No. 12-10 at pp. 3 1-32.) As the Appellate Division concluded, these statements do not
amount to an improper statement regarding the defendants’ declining to testify and therefore do
not implicate Mr. Murphy’s Fifth Amendment rights. A fbrtiori, the statements did not make Mr.
Murphy’s trial fundamentally unfair.
Mr. Murphy is therefore not entitled to federal habeas relief on this claim. Accordingly,
Ground Four will be denied.
E. Grounds Five and Eight: Jury Charges Regarding Victor Parker
In Grounds Five and Eight, Mr. Murphy argues that the trial court’s jury instructions
regarding Victor Parker were prejudicial and denied him his right to due process. In Ground
Five. Mr. Murphy asserts that the court’s charge was defective because it did not provide
guidance to the jury on how to assess Parker’s credibility with respect to the cooperation
agreement. In Ground Eight, Mr. Murphy claims his due process rights were violated because the
23
trial court did not instruct the jury that Mr. Murphy was not involved in the other crimes that
Parker committed.
Generally, ajury instruction does not merit federal habeas relief merely because it is
inconsistent with state law. Where a federal habeas petitioner challenges jury instructions given
in a state criminal proceeding, relief is available only if due process is violated:
The only question for us is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.”
It is weU estabhshed that the instruction “may not be judged in artificial
isolation,” but must be considered in the context of the instructions as a
whole and the trial record. In addition, in reviewing an ambiguous
instruction ..., we inquire “whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way” that violates the
Constitution.... “Beyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”
Estdlle, 502 U.S. at 72—73 (citations omitted). Most pertinently, the Due Process Clause would
be violated if an erroneous instruction rendered the trial as a whole unfair or “operated to lift the
burden of proof on an essential element of an offense as defined by state law.” Smith
120 F.3d 400, 416 (1997). See also hi
i
Horn,
Jlmship, 397 U.S. 358. 364 (1970) (“the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt
...“);
Sandstmm v, Montana, 442 U.S. 510. 523 (1979) (jury instructions that suggest ajun’ may
convict without proving each element of a crime beyond a reasonable doubt violate the
Constitution).
For the reasons discussed below, I conclude that Petitioner is not entitled to federal
habeas relief on these claims.
1. Ground Five
Mr. Murphy asserts that the trial court should have instructed the jury on how to
deternine Parker’s credibility. He does not, however, state what that instruction should have
24
been. Mr. Murphy raised this argument on appeal by incorporating it from the appellate brief
filed by Keith Koonce, one of his co-defendants. Thus, the last court to address this claim was
the Appellate Division in the appeal of Mr. Koonce. That
court,
however, summarily denied the
claim, finding that it lacked sufficient merit to warrant discussion. (Dkt. No. 12-25.)
I find that this claim lacks merit and does not entitle Mr. Murphy to federal habeas relief.
Indeed, the premise of the argument appears to be invalid. The trial court did instruct the jury
regarding the weighing of the credibility of Victor Parker:
Now. Victor Parker, one of the defendants named in the indictment, has
admitted his guilt and testified on behalf of the State. The law requires that
testimony of such a witness be given careftil scrutiny. In weighing his
testimony, you may consider whether lie has a special interest in the
outcome of the case, and whether his testimony was influenced by the
hope or the expectation of any favorable treatment or reward or by any
feelings of revenge or reprisal. If you believe this witness to be credible,
and worthy of belief, you have a right to convict the defendant on his
testimony alone provided, of course, that upon a consideration of the
whole case you are satisfied beyond a reasonable doubt of the defendant’s
guilt.
(Dkt. No. 12-11 at p. 8.) True, the trial court did not specifically mention Parker’s cooperation
agrce,nent. The instruction did, however, refer to Parker’s status as a cooperating witness and
told the jury that it should therefore weigh his testimony with care in light of, inter a/ia, Parker’s
hope of favorable treatment or reward. Mr. Murphy has failed to show that the instruction
violates any federal right or constitutional provision.
The Appellate Division’s denial of the claim was not contrary to clearly established
federal law. Accordingly, Ground Five will be denied.
2. Ground Eight
In Ground Eight, Mr. Murphy argues that the trial court should have instructed the jury
that he, Murphy, did not participate in Victor Parker’s other crimes. Mr. Murphy raised this issue
25
in his initial PCR proceedings. It does not appear from the record before this court, however, that
the state courts directly addressed this claim. I will therefore consider it c/c novo. Rota)? v.
Vaughn, 445 F.3d 671, 678 (3d Cir. 2006) (“if the petitioner’s legal claims were presented but
not addressed by the state courts, 28 U.S.C.
§ 2254(d) does not apply, and federal courts
undertake a de ,zrno review of the claim.”).
Mr. Murphy has failed to demonstrate that the trial court’s failure to instruct the jury that
he did not participate in Parker’s other crimes rendered his trial ftindamentally unfair. To begin
with. there was no evidence that Murphy did participate in Parker’s prior crimes. As discussed
above, the trial court limited discussion of Parker’s other crimes by precluding evidence about
the specific circumstances surrounding them. Nothing in the record implIed to the jury, however,
that Mr. Murphy was associated with those offenses. The trial court was not required, sua sponte,
to officiously rebut a contention that was never made
Mr. Murphy has failed to establish that the omitted instruction was necessary or that he
was prejudiced by its absence. See Henderson v. Kibbe. 431 U.S. 145, 155 (1977) (“An
omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the
law.”). Accordingly, Ground Eight will be denied.
F. Grounds Six. Seven, and Eleven: Ineffective Assistance of Trial Counsel
In Grounds Six, Seven, and Eleven, Mr. Murphy claims that his trial counsel rendered
constitutionally ineffective assistance. In Ground Six, Mr. Murphy asserts that counsel was
ineffective for failing to investigate his alibi. In Ground Seven, Mr. Murphy argues that counsel
was ineffective for not moving for a severance. Finally, in Ground Eleven, Mr. Murphy claims
that counsel was ineffective for failing to exercise a peremptory challenge to excuse a certain
juror.
26
In Strickland i Washington, 466 U.S. 668 (1984). the Supreme Court articulated the lest
for demonstrating an ineffective assistance of counsel claim. First, the petitioner must show that
considering all of the circumstances, counsel’s performance fell below an objective standard of
reasonableness. Sec id. at 688; see also Ross v. Varano, 712 F.3d 784. 798 (3d Cir.2013).
Petitioner must identify acts or omissions that are alleged not to have been the result of
reasonable professional judgment. See Strickland, 466 U.S. at 690. The federal court must then
detennine whether in light of all of the circumstances, the identified acts or omissions were
outside the wide range of professional competent assistance. See ii
Second, a petitioner must affimiatively show prejudice, which is found where “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 undem,ine
confidence in the outcome.” See Id. at 694; see also McBride
i
Superintendent. SQl Hontzdale,
687 F.3d 92, 102 n.l 1 (3d Cir.2012).”With respect to the sequence of the two prongs, the
Strickland Court held that ‘a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.” Rainev
v. Vanier, 603 F.3d 189, 201 (3d Cir.2010) (quotingStrickland, 466 U.S. at 697).
Additionally, in assessing an ineffective assistance of counsel claim under AEDPA, the
Supreme Court has imposed an additional barrier:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be
no different than if. for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA. though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)( 1). an unreasonable application of federal
law is different from an incorrect application of federal law. A
state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.
Harrbigton, 562 U.S. at 101 (internal quotation marks and citation omitted) (emphasis in
original).
In its May 22, 2007, opinion and order on Mr. Murphy’s first PCR appeal, the Appellate
Division remanded the ineffective assistance claims and ordered the PCR court to hold hearings
to dispose of the arguments. After conducting those hearings, the PCR court denied Mr.
Murphy’s petition. Mr. Murphy again appealed and the Appellate Division affirmed. As
discussed below, the Appellate Division’s determinations of these claims were not contrary to
clearly established federal law and were not based on unreasonable determinations of facts.
Accordingly, these claims will be denied.
I. Ground Six: Failure to Investigate Petitioner’s Alibi
Mr. Murphy contends that he informed his attorney that he had an alibi but that counsel
failed to ask Mr. Murphy how to contact the alibi witnesses.
The last court to address this claim was the Appellate Division on Petitioner’s second
PCR appeal:
On the issue of the alibi defense, Murphy testified that he discussed the
issue with his attorney in “August or September 95.” Murphy asserted
that when he raised the issue, his attorney “cut [him] off” telling him that
defense counsel had agreed among themselves to “go with general denial”
as a defense and “we [were] not going to be needing” an alibi defense. His
attorney told him that the jury would not believe the States chief witness,
Victor Parker. Based on that advice, Murphy decided not to testify at the
trial.
28
Murphy also testified that, in discussing a possible alibi defense with his
attorney. he told the attorney that he did not know the date on which the
victim had died. Murphy claimed his attorney never gave him that
information. He asserted that it was only through “independent
investigation” that he finally “came to find out that it was September 6,
that it was the night of the incident.” He also testified that, during the trial.
he heard testimony that the police came to the murder scene on September
7, “so the night of the incident would have been September 6.”
Murphy identified a letter to his trial attorney, dated November 25, 1996,
which was four days afler the trial ended. In the letter, Murphy supplied
the names and telephone numbers of three people who he claimed could
provide an alibi, and asked his attorney to file a motion for a new trial.
Murphy testified that it was not until some time after the trial that he found
out exactly when the victim had died: he tried to contact his trial attorney
to thrther discuss alibi witnesses, but the attorney would not take his calls.
He also identified a series of affidavits, all dated in the year 2000, from
purported alibi witnesses.
On cross-examination, defendant testified that he obtained the affidavits
after the alibi witnesses contacted him “through family members.”
Murphy was also confronted with a series of letters he wrote to his
attorney before the trial. None of those letters mentioned an alibi defense
or possible alibi witnesses. He also admitted that during the course of pre
trial proceedings, the trial judge gave him a copy of the indictment, which
listed the date of the murder.
On re-direct examination, Murphy testified that during the trial, after
Parker had testified, his attorney visited him in the jail and asked him to
testify. According to Murphy, he again raised the issue of alibi witnesses,
but his attorney told him that the defense had not filed a notice of alibi.
Murphy testified that this was the reason why he waited until after the trial
was over to send his attorney the list of alibi witnesses.
The State presented testimony from Edward Jerejian, defendant’s former
trial counsel. At the time he was assigned to represent Murphy, in 1995,
Jerejian was a certified criminal trial attorney with extensive experience
trying homicide cases. According to Jerejian. he developed a good rapport
with Murphy and spoke to him often prior to the trial. Jerejian explained in
detail the litigation strategy that he and counsel for the co-defendants
developed. That strategy was to discredit Parker, the State’s chief witness.
Jerejian testified that Murphy agreed with that strategy, and was
“adamant” about pursuing a joint defense with his co-defendants.
According to Jerejian, Murphy “never” told him that he had an alibi for
the night of the shooting. Jerejian also confirmed that Murphy had a copy
of the indictment and had a good grasp of the issues in the case. Jerejian
29
recalled specifically discussing with Murphy the possibility of testifying at
trial, but Murphy did not want to testify. According to Jerejian, Murphy
never provided the names of any alibi witnesses before or during the trial.
In discussions with Jerejian. Murphy “could never pinpoint exactly where”
he was at the time of the shooting. According to Jerejian, in his
discussions with defendant, there was never any doubt or confusion about
the date and time of the shooting.
In an oral opinion placed on the record on September 28, immediately
after the hearing, Judge Petrolle found defendant to be a completely
incredible witness. He specifically discounted defendant’s testimony that
he was confused about the date and time of the shooting, and he did not
credit defendant’s explanation for his late presentation of alleged alibi
witnesses. Rather, the judge found that defendant agreed to the strategy of
a joint defense in which counsel would focus on discrediting Parker’s
testimony. He found that defendant never discussed an alibi defense with
his attorney before the trial, and that defendant made a voluntary and
knowing decision not to testify at his trial.
The judge inferred that the alibi witness affidavits were suspect, because
the explanations for their late presentation were unbelievable. However,
he also reasoned that the credibility of the affidavits was not the issue
before the court on remand. Rather, the issue was whether Jerejian
rendered ineffective assistance of counsel. On that point, Judge Petrolle
found that Jerejian complied “completely” with his professional
obligations as Murphy’s defense counsel. He specifically found that
Jerejian had no obligation to “make up” an alibi defense, when defendant
had not provided him with any information to support such a defense.
Murphy challenges Judge Petrolle’s determination that Jerejian did not
render ineffective assistance in failing to present an alibi defense. We
cannot agree. Murphy gave a preposterous explanation for his delay in
naming alibi witnesses, and Jerejian credibly testified that Murphy did not
tell him he had an alibi or ask him to present that defense at the trial. We
find no basis to disturb Judge Petrolle’s credibility determinations or his
factual findings. Sec Loctirto, stipra, 157 NJ. at 474. In light of those
findings, we affirm his determination that Jerejian did not provide
ineffective assistance of counsel. See Strickland i’. Washington, 466 U.S.
668, 694, 104 £Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984); State v.
Fritz, 105 N.J. 42,58(1987).
30
State
Michael Ricks and Darius Murphy, No. A-2403-10T3. 2013 WL 1187862, at *3..*6 (N.J.
Super. Ct. App. Div. Mar. 25, 2013).
The resolution of this claim on appeal, following an evidentiary hearing and fact finding
in the PCR trial court, was not an unreasonable application of Strickland. The stale courts made
credibility determinations and found that Mr. Murphy did not, in fact, inform his attorney of an
alibi or request that his counsel pursue an alibi defense. Rather, those courts found, Mr. Murphy
desired to pursue the joint defense strategy employed at trial. Pursuant to AEDPA. I defer to
those factual findings, which Mr. Murphy has not rebutted with clear and convincing evidence.
28 U.S.C.
§
2254(e)(l).
counsel’s failure to pursue the purported alibi defense could not have been objectively
unreasonable and Mr. Murphy’s claim does not satis1’ the first prong of Strickland. Accordingly,
Ground Six will be denied.
2. Ground Seven: Failure to Move for a Severance
Mr. Murphy argues that his trial counsel was ineffective for failing to move for a
severance. Had the case been severed, he says, he would have been able to introduce the specific
facts regarding Parker’s other crimes; it was only the risk of prejudice to other defendants, he
says. that led the court to preclude that specific evidence. Such evidence, Mr. Murphy asserts,
would have revealed Parker’s motives to falsely testify in order to secure his cooperation
agreement.
The last court to address this claim was the Appellate Division on Petitioner’s second
PCR appeal. That court addressed the claim as follows:
[Ajlthough the severance issue was not part of the remand, Judge Petrolle
took testimony from Jerejian as to why he did not file a severance motion.
Jerejian credibly explained that Murphy did not want him to file such a
motion, preferring instead to stand trial with his co-defendants.
31
State
i’.
Michael Ricks and Darius Murphy, No. A-2403-10T3, 2013 WL 1187862, at *6 (N.J.
Super. Ct. App. Div. Mar. 25, 2013).
The Appellate Division’s ruling on this issue was not an unreasonable application
of Strickland. Of course, no trial strategy can be pursued without forgoing some other,
complementary strategy. As discussed above, the state courts determined after an
evidentiary hearing and fact finding that Mr. Murphy did not want or seek a severance.
Thus, as in the case of Ground Six, counsel could not have rendered objectively
unreasonable performance by not filing a severance motion.
Moreover, Mr. Murphy has not demonstrated a reasonable probability that the
outcome of his trial would have been different if his attorney had filed a severance
motion. The trial court stated that had such a motion been filed, the court would have
denied it. (Dkt. No. 13-8 at p. 11-12.) Mr. Murphy also fails to show, beyond speculation,
that had the case been severed, the specific facts regarding Parker’s other crimes would
have been admissible, let alone that they would have changed the outcome of his trial.
Finally, as discussed in Section IV.C, above, the defense was given a reasonable
opportunity to explore the prior offcnses and Parker’s motives to lie, and addition of the
details of the arrests would not have changed the outcome.
Because this claim fails the Strickland test. Mr. Murphy is not entitled to habeas
relief. Ground Seven therefore will be denied.
3. Ground Eleven: Failing to Excuse Juror B.D.
Mr. Murphy argues that trial counsel was ineffective for failing to use a peremptory
challenge to excuse ajuror. B.D.. whose sister was employed at the prison where Mr. Murphy
32
was housed during trial. Mr. Murphy asserts that lie instructed his counsel that he wanted any
juror with ties to law enforcement to be removed, but counsel did not obey. T
lie last court to address this claim was Appellate Division during Petitioner’s second PCR
appeal. That court addressed this claim as follows:
On remand, Judge Michael A. Petrolle, who had not presided over any of
the prior proceedings in this case, held two separate testimonial hearings.
The first hearing, concerning the juror issue, was held on May 24, 2010
and July 1,2010. Because the transcript of the relevant day ofjury
selection was lost, and because the trial judge and attorneys could not
reconstruct the record. the judge heard testimony from the juror, B.D., and
her sister, W.D.
The May 24, 2010 hearing began with testimony from W.D., who
confirmed that she had been an Essex County corrections officer from
1978 to 2006. She also provided the court with her sister B.D.’s home
address. According to W.D., her sister told her that she had been called for
jury duty and had been selected to serve on ajury. W.D. testified that she
had previously worked as a guard at the jail. However, at the time B.D.
began her jury service. W.D. held the title of corrections officer but was
working as a “social worker” in the jail library. She did not wear a
uniform, and her role “was to address the needs of the inmates as they
were privileged to come up to the library to inquire about court dates,
getting into contact with their Public Defenders, [and] getting certain
papers that may have been needed for court signed.” W.D. testified that,
prior to B.D.’s jury service, she had told B.D. about both of her
assignments. In other words. B.D. knew that W.D. was a corrections
officer who had at one time worked as a jail guard, but also knew she was
acting as a social worker at the time of B.D.’s jury service.
The judge conducted the questioning but permitted all counsel to propose
follow-up questions, which the judge then directed to W.D. The judge
followed the same procedure when B.D. testified at the next hearing day,
on July 1,2010.
At the July 1 hearing. B.D. testified that during voir dire she and the other
jurors were asked questions by the judge. She remembered that, during
voir dire, she disclosed that her sister W.D. “was a correctional officer.”
She did not recall whether anyone asked where her sister worked as a
corrections officer. In response to Judge Petrolles inquiry, none of the
attorneys proposed asking B .D. any additional questions. They all agreed
33
that B.D.ts testimony was clear on the critical issue of disclosure. None of
the attorneys sought to present additional testimony or other evidence on
the issue.
Immediately after the hearing. Judge Petrolle placed an oral opinion on the
record, finding as fact that in response to the voir dire conducted during
defendants’ trial. B.D. disclosed that she had “a sister who was a
corrections officer.” He therefore denied Ricks’s PCR petition, which only
raised the juror disclosure issue, and denied Murphy’s PCR petition with
respect to that issue.
At the next hearing, on September 28, 2010, the judge heard testimony
from Murphy and his former trial attorney, concerning Murphy’s claims of
ineffective assistance of counsel. Murphy testified that during jury
selection he told his attorney he wanted him to excuse any juror “with ties
to law enforcement.” However, his attorney failed to exercise a
peremptory challenge with respect to B.D.
Addressing the juror B.D.. Jerejian did not remember her voir dire. He
testified that he would not have automatically excused ajuror based solely
on that juror having a relative in law enforcement. Instead, based on his
extensive experience picking juries, he would evaluate whether that
individual juror would be “a good juror.” However, Jerejian testified that
if his client had adamantly indicated that he wanted a juror to be excused,
lie would have exercised a peremptory challenge to excuse that juror.
Further addressing B.D., Judge Petrolle found it incredible that defendant
remembered that juror, as he claimed. He found “no basis” to conclude
that there was any ineffective assistance of counsel in allowing RD. to
remain on the jury and found “no basis whatsoever for believing the
testimony that the defendant wanted the juror excluded.”
As previously discussed, we find no basis to second-guess Judge Petrolle’s
factual finding that B.D. disclosed her sister’s employment as a corrections
officer. The judge found Jerejian’s testimony entirely credible, and found
Murphy’s testimony completely unbelievable. In light of those credibility
determinations, there is no basis to find that Jerejian rendered ineffective
assistance of counsel in deciding not to use a peremptory challenge to
remove R.D. as a jurorJF]
34
[Fnj While Jerejian did not remember S.D., a reasonable trial
counsel might have concluded that, because her sister was assigned
as a social worker helping inmates, the usual reasons to exclude
relatives of corrections officers might not apply to S.D.
State
i
Michael Ricks and Darüis Murphy, No. A-2403-10T3, 2013 WL 1187862, at *2*a (N.J.
Super. Ct. App. Div. Mar. 25, 2013).
The Appellate Division’s denial of this claim was not an unreasonable application of
Strickland and it was not based on an unreasonable determination of the facts. As with Grounds
Six and Seven, I defer to the state courts factual findings on this issue The PCR court held
hearings on this issue and concluded that Mr. Murphy’s testimony was not credible. That court
found that Mr. Murphy did not, in fact, remember S.D. and did not want her excluded from the
jury. Given these facts, the Appellate Division’s affirmance of the PCR court’s conclusion that
Mr. Murphy’s trial counsel did not provide ineffective assistance on this matter was reasonable.
Moreover. Mr. Murphy again fails to satis’ the prejudice prong of Strickland because he
has not demonstrated a reasonable probability that the outcome of his trial would have been
different if S.D. had been removed from the jury. Nor does he overcome the Strickland
presumption that counsel’s choices were strategy-based. B.D.’s status as a social worker (as
opposed to say, a prison guard) would ftmish a reasonable basis to refrain from spending a
peremptory challenge on her.
Mr. Murphy is therefore not entitled to habeas relief on this claim and Ground Eleven
will be denied.
G. Ground Nine: Prosecutor’s Failure to Disclose Statement of Keith Henderson
In Ground Nine, Mr. Murphy asserts that the prosecutor violated his due process rights by
failing to disclose to the defense statements made by Keith Henderson. Henderson, a co
35
defendant who has since passed away, allegedly stated that Mr. Murphy and two other co
defendants were not involved in the crimes for which they were tried.
At the joint sentencing. Mr. Henderson attacked the credibility of the cooperating
witness. Parker, and accused the judge of bias. He referred to “individuals who have been
implicated in this file that hadn’t anything to do with this crime and there are people who have
something to do with this crime that was never arrested.” He went on to state that he “even told
the Prosecutor’s Office that what are they going to do now that you convicted three innocent
people, what are they going to do when this guy, who was with us, who still has the weapon,
when he gets locked up
.
.
.
and then when you find that this man looked similar to Mr. Murphy,
I’m saying what is the Prosxecuto’s Office going to do.” Henderson complained that the
prosecutors “wouldn’t give [him] the plea bargain that they offered [him] unless [he] testified to
the factual basis of what Mr. Parker said.” (Sentencing Tr. 44-45, ECF no. 12-13 at 15-16)
It was at the sentencing hearing, Mr. Murphy asserts, that he first heard Mr. Henderson’s
exculpatory statements. On direct appeal, Mr. Murphy challenged the denial of his motion for a
new trial based on newly discovered evidence, namely, Mr. Henderson’s statement, but he did
not raise the constitutional due process issue.
Mr. Murphy did raise the due process issue during his PCR proceedings. The PCR court
denied the claim somewhat obliquely, finding that Mr. “Henderson never expressed, either
directly or through counsel, any indication to the court that he would testify on Murphy’s
behalE”
On appeal from the denial of PCR, the Appellate Division addressed the claim as follows:
This issue was not directly addressed by the PCR judge. However, the
PCR judge did address Henderson’s testimony in his discussion of
severance. The judge stated that, “Henderson never expressed, either
36
directly or through counsel, any indication to the court that he would
testify on [defendants} behalf.”
We also note that, the statements that defendant now argues qualif’ as
newly discovered evidence, were made by a co-defendant, Henderson,
while addressing the judge immediately prior to sentencing. These
statements at sentencing are the only evidence that defendant can offer as
to what Henderson’s testimony would have been. The statements are
equivocal and vague. Moreover, they were made after the joint trial was
over.
Defendant has submitted the certifications of: Henderson’s brother,
Matthew Henderson; mother, Doris Henderson; and cousin, Jerome Gary,
to the effect that Henderson told them that defendant was not involved in
the robbery/murder. These hearsay statements attributed to Henderson are
not admissible because Henderson is now deceased and no recognized
hearsay exception applies. Therefore, they cannot be the basis for a new
trial motion.
For newly discovered evidence to require a new trial in a matter,
“defendant must show that the evidence is I) material, and not ‘merely’
cumulative, impeaching, or contradictory: 2) that the evidence was
discovered after completion of the trial and was not ‘discoverable by
reasonable diligence beforehand’; and 3) that the evidence would
probably change the jury’s verdict if a new trial were granted.” State i’.
Ways, 180 N.J. 171, 187 (2004) (quoting State 1’. Carter, 85 N.J. 300, 314
(1981)). Furthermore, in reviewing new evidence claims, “[a] jury verdict
rendered after a fair trial should not be disturbed except for the clearest of
reasons.” Id. at 187-88. For that reason, “[n]ewly discovered evidence
must be reviewed with a certain degree of circumspection to ensure that it
is not the product of fabrication, and, if credible and material is of
sufficient weight that it would probably alter the outcome of the verdict in
the new trial.” Ibid.
‘
State v. Muhv, No. A-0708-04T4. 2007 WL 1468592, at *45 (N.J. Super. Ct. App. Div. May
22, 2007).
The Supreme Court has held that the prosecution has a due process obligation to disclose
to the defendant its knowledge of material evidence favorable to the defendant, either because
the evidence is exculpatory or because it can serve to impeach a key prosecution witness. See
Kyles v. Whitley, 514 U.S. 419, 433 (1995); Gig/b v. United States, 405 U.S. 150 (1972); Brady
37
i’.
Man’land, 373 U.S. 83 (1967). “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the State, either willfluly or
inadvertently; and prejudice must have ensued.” Strickler
i’.
Greene, 527 U.S. 263, 28 1—82
(1999). “The evidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufticient to undcrniine confidence in the outcome.”
United States v. Bag/eL 473 U.S. 667, 682 (1985); see also Ky/es, 514 U.S. at 434 (“The
question is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence”): California v. Tromberra, 467 U.S. 479. 488—89
(1984) (state’s failure to retain breath samples was not unconstitutional where the chances are
extremely low that preserved samples would have been exculpatory); United States v. Agztrs, 427
U.S. 97. 112 (1976) (“It necessarily follows that if the omitted evidence creates a reasonable
doubt that did not otherwise exist, constitutional error has been committed”).
Here, Mr. Murphy claims that the prosecutor failed to disclose to the defense Mr.
Henderson’s statement that Mr. Murphy and others were not involved in the crimes for which
they were tried. However, a joint defense was employed in this case. The statement at issue was
made by a co-defendant after the trial was over. There was no evidence it was disclosed to the
prosecutors in time for its disclosure before or at trial. The circumstances do not establish that
the prosecution in any way suppressed the statement or knew of its substance before Mr.
Henderson spoke at the sentencing hearing.
38
In addition, Mr. Henderson was a co-defendant with Mr. Murphy, and they were pursuing
ajoint defense strategy. His account of the offense was surely available to Mr. Murphy at any
time. Henderson, like Murphy, fought the charges at trial in the hope of an acquittal. There is no
indication that at any time before his conviction, Mr. Henderson was willing to waive his own
Fifth Amendment privilege, testify at trial, and possibly inculpate himself for Murphy’s benefit,
except possibly in return for a substantial benefit to himself.3
As for the evidence itself, the Appellate Division found that the statement would not
constitute newly discovered and admissible evidence and therefore could not sustain a motion for
a new trial. This determination was made on the basis of state law and is not reviewable on a
petition for habeas relief I consider, however, the Appellate Division’s assessment of the
statement as vague and unlikely to change the trial result. Henderson stated at sentencing that
another unnamed person was the truly guilty party. but gave no corroborating detail or even a
name, beyond the contention that the person looked like Murphy.
Based on the record before this Court, Mr. Murphy is not entitled to federal habeas relief
on this claim. Ground Nine will therefore be denied.
H. Ground Ten: Ineffective Assistance of Appellate Counsel
In Ground Ten, Mr. Murphy argues that his appellate counsel was ineffective for failing
to raise on appeal the ineffective assistance of trial counsel. Petitioner raised this argument in his
PCR proceedings. Although Mr. Murphy raised this claim on the second appeal from the denial
Even Murphy’s version does not suggest that the government acted improperly or was
not pursuing legitimate interests. The prosecution was not obligated to reduce the charges against
(or immunize) a guilty party to permit him to testi& in a manner it considered false in light of the
other evidence it had gathered. Murphy has not proffered any evidence that the prosecution
exceeded its charging discretion and affirmatively interfered with Henderson’s decision whether
to testify; that it deliberately distorted the fact-finding process; or that the somewhat vague
statements of Henderson, an admitted co-felon, were essential or clearly exculpatory. (‘4 United
States v. Quinn, 728 F.3d 243 (3d Cir. 2013).
39
of his PCR petition (see Dkt. No. 15-2 at p. 29), the Appellate Division did not discuss it in its
opinion. I will therefore consider this claim de ,zoi’o. Rolan, 445 F.3d at 678.
The Sixth Amendment right to counsel for criminal defendants inchides the right to
effective assistance of counsel on a defendants first appeal. Ei’itts
Lzicci. 469 U.S. 387, 394-
97(1985). I have already found that Mr. Murphy’s ineffective assistance of trial counsel claims
lack merit. Consequently, the claim that his appellate counsel was ineffective for failing to raise
those same claims on appeal must also fail. Appellate counsel is not required to “advance evezy
argument, regardless of merit, urged by the appellant.” bins, 469 U.S. at 394. Mr. Murphy
cannot establish that he was prejudiced, under the Strickland test, by his appellate counsel’s
failure to press meritless claims. Mr. Murphy is therefore not entitled to habeas relief on this
claim. Accordingly, Ground Ten will be denied.
I.
Ground Twelve: Irregular [nfluences During Jury Selection
In Ground Twelve, Mr. Murphy asserts that he was denied the right to a fair trial and was
prejudiced as a result of irregular influences during jury selection. During the PCR proceedings,
as discussed above. Petitioner addressed the juror issue as part of his ineffective assistance of
counsel claims. Petitioner asserted that thejuror B.D. did not disclose that her sister worked at
the correctional facility in which Petitioner was being held. Though he offers no factual support,
Petitioner implies that his trial was unfair because of potential juror bias or irregular influence.
The last court to discuss this issue was the Appellate Division on Petitioner’s second PCR
appeal. That discussion is quoted above with respect to Ground Eleven. The state courts
concluded that B.D. did disclose that her sister worked as a corrections employee. Mr. Murphy
has not cited or pointed to any evidence of bias or irregular influence resulting from B.D.’s
presence on the jury. Murphy v. Florida. 421 U.S. 794, 800 (1975) (a defendant must
40
demonstrate
“the
actual existence of such an opinion in the mind of thejuror as will raise the
presumption of partiality”) (citation omitted). His unadorned, fact-free claim that he was
prejudiced and denied a fair trial, without more, does not set forth a sufficient basis to state a
claim for habeas relief Ground Twelve will therefore be denied.
J. Ground Thirteen: Incomplete Verbatim Record of Jun’ Voir Dire
In Ground Thirteen, Petitioner argues that he was prejudiced by the incomplete verbatim
record of the jury voir dire and that the state court erred in failing to reconstruct the lost record.
Petitioner raised this issue during the course of his PCR proceedings.
On Petitioner’s first PCR appeal, the Appellate Division discussed this claim and ordered
a remand for the purpose of finding the record, reconstructing the record, or, if necessary,
conducting a you dire of B.D.:
Five years after his conviction, defendant learned that Juror S.D .‘s sister
was a guard at the Essex County Jail. Defendant ordered the transcript of
this particular jury voir dire. However, he was advised that the transcript
was not available. Thus, it is unknown ifiuror S.D. disclosed during jury
selection that her sister was in law enforcement. Defendant requested that
the court order an inquiry of all female staff members at the Essex County
Jail to see if anyone was related to Juror B.D.. We disagree that such a
wide ranging inquiry is needed.
First, a more intensive and thorough search must be made to locate the
transcript of the second day ofjury selection. Trial courts and attorneys
make a concerted effort to “create a record.” This is not an empty exercise.
The transcripts of such record should be carefully indexed and stored by
court personnel. Second, if the transcript cannot be located, the trial judge
and colLnsel should trw to reconstruct the record in accordance with R. 2:53(f). The focus of the inquiry is to determine whether Juror S.D. disclosed
her connection to the sister who worked as a jail guard at the time of trial
and whether she indicated that this would or would not affect her
judgment. Failing this, the court should voir dire Juror B.D.
In conducting this inquiry, the judge should be mindful that a defendant’s
right to a fair and impartial jury is fundamental. State v. Tv/cr, 176 N.J.
172 (2003); Stale y. Wilhiwns, 190 N.J.Super. 111, 114 (App.Div. 1983).
New Jersey courts have repeatedly “invalidated judgments where a juror’s
4’
inaccurate answer to a question propounded in the jury voir dire precluded
a litigant from exercising a peremptory challenge. State v. Scher, 278 N.J.
Super. 249, 263 (App.Div.1994), certif denied, 140 N.J. 276 (1995)
(citing Wright i Bernstein. 23 N.J. 284 (1957); State v. Williams, 190
N.J.Super. 111 (App. Div. 1983); State v. Thompson, 142 N.J. Super. 274
(App. Div. 1976)). More importantly, defendant must demonstrate that,
“had he or she known of the omitted information, he or she would have
exercised a peremptory challenge to exclude the juror.” State i’, Cooper,
151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145
L. Ed.2d 681(2000) (citing Wright, supra, 23 N.J. at 294); see also State
i’. Farmer; 366 N.J. Super. 307, 321 (App.Div.), certif denied, 180 NJ.
456 (2004) (Payne, J.A.D., concurring) (citing a line of cases that hold that
omission or falsification of information by a juror during voir dire will
constitute grounds for reversal of a conviction without a showing of
prejudice if it can be shown that a peremptory challenge would have been
utilized to excuse ajuror. Id. at 321 (citations omitted)). Absent this
showing, “the voir dire omission is harmless [,] because ifa litigant
would not have challenged the juror, the litigant could not have been
prejudiced.” Cooper, supra. 151 N.J. at 350.
...
Murphy, 2007 WL 1468592, at *2.
On Mr. Murphy’s second appeal, the Appellate Division found that no dairn of error
emerged from the trial court’s attempted reconstruction of the record:
[Co-defendant] Ricks asserts, in vague and general terms, that Judge
Petrolle should have done something more to reconstruct the record. We
find no merit in that contention. It is clear that the court and counsel made
exhaustive but unsuccessful efforts to reconstruct the record. We find no
error in the procedure Judge Petrofle followed, in taking the testimony of
B.D. and her sister. We note that during the September 10 hearing, Judge
Petrolle even went beyond what our remand required, and allowed Jerejian
to be questioned about B.D. That questioning produced no evidence
helpful to the defense.
Michael Ricks. 2013 WL 1187862, at *5
“[T]he Due Process Clause guarantees the fundamental elements of fairness in a criminal
trial.” Riggins
1’.
Nevada, 504 U.S. 127, 149 (1992). In the field of criminal law, “the category
of infractions that violate ‘fundamental fairness’ [is defined] very narrowly based on the
recognition that, beyond the specific guarantees enumerated in the Bill of Rights, the Due
42
Process Clause has limited operation.” Aleclizza v. Cali/brnia. 505 U.S. 437. 443 (1992). In order
to satisfy due process, Petitioner’s trial must have been fair, but it need not have been perfect.
United States v. Hasting, 461 U.S. 499, 508-09 (1983) (“[T]here can be no such thing as an
error-free, perfect trial, and
[J
the Constitution does not guarantee such a trial.”).
Here, the Appellate Division remanded Mr. Murphy’s original PCR petition and ordered
the trial court to attempt to reconstruct the record of the jury voir dire. Failing that, it was to
recall B.D. and conduct a fresh lvii dire of her. The trial court held four hearings on Mr.
Murphy’s PCR petition and conducted the you dire and reconstruction of the record. That court
also made a factual determination that B.D. had in fact disclosed her family connection in
connection with jury selection, and that Mr. Murphy had not in fact wanted B.D. excluded from
the july. The Appellate Division affirmed.
I find that the Appellate Division’s decision was not contrary to, or an unreasonable
application of. clearly established federal law. Nor was its decision based on an unreasonable
detentination of the facts. Accordingly. Mr. Murphy is not entitled to federal habeas relief and
Ground Thirteen will be denied.
K. Certificate of Appealability
Pursuant to 28 U.S.C.
§
2253(c). unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 2$ U.S.C.
§ 2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial ofa constitutional right.” 28 U.S.C.
§
2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” All//er-El r. C’ockre//, 537 U.S. 322, 327
43
(2003). Applying this standard, this Court rules that a certificate of appealability shall not issue
in this case.
V.
CONCLUSION
For the foregoing reasons, Mr. Murphy’s habeas petition will be denied and a certificate
of appealability shall not issue. An appropriate order will be entered.
Dated: January 3. 2018
K VINMCNULTY
United States District Judge
44
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?