EVANS v. D'ILIO et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 6/6/16. (cm )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER EVANS,
Petitioner,
v.
STEPHEN D’ILIO, et al.
Respondents.
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Civil Action No. 15-2132 (SDW)
OPINION
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Christopher Evans
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court conviction
(ECF No. 1). Following an extension, the State has filed a response to the petition (ECF No. 6),
to which Petitioner replied (ECF No. 16). For the following reasons, this Court will deny the
petition and deny Petitioner a certificate of appealability.
I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the Superior Court of New Jersey –
Appellate Division offered the following summary of the basic facts underlying this case:
[This] case involved the fatal shooting of Sheldon Kelly on May 6,
2005, during an armed robbery of Kelly and three companions in the
foyer of an apartment building in Irivington[, New Jersey]. A
fourth companion fled from the foyer after the perpetrators arrived
but before they began the robbery. None of the robbers wore
masks, and all of the victims saw their faces at close quarters.
The three robbers stole several cell phones, money, and other
personal items. After they completed the robbery, to which the
victims offered no resistance, one of the robbers shot Kelly.
[Petitioner] became a suspect in the crime when the police traced
calls made from one of the stolen cell phones to a telephone number
on which the service provider listed [Petitioner] as a user.
Once they suspected that [Petitioner] might have some
knowledge about or involvement in the crime, detectives showed the
three robbery victims a photo array that included [Petitioner]’s
photograph. They each identified [Petitioner] as being one of the
three intruders who entered the foyer and robbed them. [Petitioner]
was then arrested in Newark. He waived his [Miranda v. Arizona,
384 U.S. 218 (1967),] rights and confessed to participating in the
robbery, although he denied any part in the shooting. At his trial,
the State conceded that [Petitioner] was not the shooter, although the
State contended that [Petitioner] was guilty of felony murder based
on his participation in the armed robbery that resulted in the
shooting. At the trial, the four surviving victims, including the one
who fled after getting a look at the robbers, all identified [Petitioner]
as one of the perpetrators.
State v. Evans, 2011 WL 2496243, at *1-2 (N.J. App. Div. June 24, 2011), certif. denied, 208
N.J. 601 (2011).
Prior to trial, Petitioner sought to suppress the identifications made by the various
victims. Id. at *2. Petitioner’s attempts to do so proceeded as follows:
At a pre-trial hearing on February 21, 2007, counsel and the trial
judge discussed on the record the possible need for a testimonial
[United States v. Wade, 388 U.S. 218 (1967),] hearing. Defense
counsel raised one issue, relat[ed] to the fact that the surviving
victims were shown photo arrays on more than one occasion. In
May 2005, shortly after the shooting, the Irvington police showed
the victims a photo array and none of the victims were able to
identify anyone in the photographs. Several months later, they
were shown another array that included [Petitioner]’s photo, and
they identified him. Defense counsel argued that, if the May array
included [Petitioner]’s picture, the victims may have identified him
during the later session only because his picture looked vaguely
familiar from the first session and not because they actually
remembered him from the night of the robbery.
2
In response, the prosecutor represented to the court that the
first array did not include [Petitioner]’s photograph, because it only
included suspects who had previously been arrested in Irvington, a
category that did not include [Petitioner]. The prosecutor offered
to produce a police witness who could confirm that information.
Defense counsel agreed that such testimony could resolve the issue
he had raised.[ 1] The judge then stated, “All right. So with the
exception of that particular witness limited to that topic which we’ll
do tomorrow, the Wade issue is done.” The court later clarified that
the purpose of the next day’s limited hearing was to determine if
there was a need for a more extensive testimonial Wade hearing.
At the limited testimonial Wade hearing on February 22,
2007,[] Detective Christopher Smith, of the Essex County
Prosecutor’s Office, confirmed that the day after the May 6
shooting, the victims viewed photo arrays at the Irvington Police
Department and did not identify anyone in the photographs.
According to Smith, the Irvington photo database was “an in-house
system” of individuals arrested by the Irvington police. He testified
that [Petitioner] had never been arrested in Irvington and therefore
his photograph was not in the Irvington database in May 2005.
Smith also testified that a week later, the victims came to the
Essex County Prosecutor’s Office to view additional photos from
the Prosecutor’s database, which included persons arrested in
Newark. Again, they made no identifications. Based on his
research of the Prosecutor’s database, Smith determined that
[Petitioner]’s photo was not yet in the database during that second
photo viewing. Smith testified that the first time [Petitioner]’s
photograph was entered into the Essex database was May 28, 2005
(approximately two weeks after the second photo viewing), when he
was arrested for a drug offense in Newark.
Smith also
authenticated [Petitioner]’s arrest record, which showed later arrests
in Newark, but no Newark arrests prior to May 28, 2005.
After Smith testified, the judge invited argument “on why
there should be a Wade hearing.” The prosecutor argued briefly
that there was “no showing of any suggestibility” in the procedure
the police used. Defense counsel did not argue the need for a Wade
hearing. He explained that when he first received the reports, they
raised a question as to whether witnesses had previously seen
1
The Appellate Division noted that it ultimately became clear that there had been three viewing
sessions rather than two involved in the identification process. Id. at *2.
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[Petitioner]’s photograph. He then stated, “With that I’ll submit
Judge.” The judge ruled
Whether or not I’m to interpret that as a
withdrawal of the request for a Wade Hearing[,]
suffice it to say that [Petitioner] has not [met] his
threshold burden of providing or proffering evidence
of impermissible suggestiveness to require the
necessity of the testimonial Wade hearing in order to
determine whether or not there was a substantial
likelihood of misidentification arising [from] the out
of Court identification procedures.
Id. at *2-3. Although Petitioner did not raise the issue before the trial court, Petitioner later
claimed on direct appeal that the identification procedures were suggestive because police had
not followed the New Jersey Attorney General’s guidelines in conducting the photo arrays. Id.
at *3-4. The Appellate Division, however, rejected that argument on the basis of the fact that
the guidelines were not themselves a source of substantive rights and because, regardless of the
fact that they impugned the guidelines, the trial record did not suggest that the procedures were
unduly suggestive. Id. at *4.
Petitioner then proceeded to trial where the jury heard both the identification testimony of
the various surviving victims and Petitioner’s own confession. Following the trial, the jury
convicted Petitioner on “four counts of first-degree robbery [in violation of N.J. Stat. Ann. §]
2C:15-1[] and one count of conspiracy to commit robbery, [in violation of N.J. Stat. Ann. §]
2C:5-2, 2C:14-1.” Id. at *1. The jury, however, acquitted Petitioner of both felony murder and
two weapons offenses. Id. Petitioner received an aggregate sentence of thirty years
imprisonment for these charges, including an eighteen year sentence for one of the robbery
charges, a second twelve year sentence on one of the other robbery charges to run consecutive to
the first based on petitioner’s numerous victims, and concurrent sentences on the remaining
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charges, all of which were subject to an eighty-five percent parole disqualifier under the No
Early Release Act, N.J. Stat. Ann. § 2C:43-7.2 Id.at *1, *7.
Petitioner appealed his conviction and sentence. On June 24, 2011, the Appellate
Division affirmed Petitioner’s sentence finding that the identification procedures used at trial
were not unduly suggestive, that the erroneous admission of certain telephone records under the
business record exception to the hearsay rules was harmless beyond a reasonable doubt
regardless of whether the records were testimonial hearsay under Crawford v. Washington, 541
U.S. 36 (2004), that the destruction of the police officer’s notes prior to trial did not run afoul of
state rules as the case requiring their preservation had not yet come into effect at that time and
that counsel had sufficiently cross-examined the officer on that issue, that Petitioner’s sentence
was appropriate, and that Petitioner’s cumulative error claim was without merit. Id. at *1-7.
Petitioner thereafter filed a petition for certification, which the New Jersey Supreme Court
denied on December 8, 2011. 208 N.J. 601.
Petitioner filed a petition for post-conviction relief approximately a month later in
January 2012 in which he raised, inter alia, various claims of ineffective assistance of counsel.
(ECF No. 1 at 4). The PCR court denied that petition by way of a written opinion on December
3, 2012. (Id. at 41-57). Petitioner appealed, and the Appellate Division affirmed the denial of
his PCR petition on May 15, 2014. State v. Evans, 2014 WL 1923412 (N.J. App. Div. May 15,
2014). Petitioner again filed a petition for certification, which the New Jersey Supreme Court
denied on October 24, 2014. 220 N.J. 43 (2014). Petitioner thereafter filed the instant habeas
petition on or about March 25, 2015. (ECF No. 1).
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II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S.
Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to
the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 77273 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) 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 the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is
clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015).
“When reviewing state criminal convictions on collateral review, federal judges are required to
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afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Id. Where a petitioner challenges an allegedly
erroneous factual determination of the state courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Analysis
Petitioner asserts that he received ineffective assistance of both trial and appellate counsel.
The standard which governs such claims is well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
To succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,
493 F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
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wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that
“there is a reasonable probability, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d
at 299. Where a “petition contains no factual matter regarding
Strickland’s prejudice prong, and [only provides] . . . unadorned
legal conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
performance when possible, [Strickland, 466 U.S. at 697-98],”
courts should address the prejudice prong first where it is dispositive
of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).
Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015). In his petition, Petitioner
raises various ineffective assistance claims, each of which this Court will address in turn.
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a. Petitioner’s claim that counsel failed to consult with him
In his first ineffective assistance claim, Petitioner asserts that trial counsel did not
“adequately consult with [him] at the jail prior to trial.” Petitioner further states that he believes
that this “failure” prevented counsel from developing a sound trial strategy and investigating all
possible defenses. Petitioner, however, fails to provide any factual support for this assertion.
He makes no allegations as to what counsel might have discovered with more discussion with
Petitioner, or what counsel failed to turn up in so failing. Petitioner has thus provided no more
than a bald assertion of ineffective assistance, and has provided no factual support to suggest that
he suffered any prejudice as a result of this alleged failure. Because Petitioner has failed to
provide any factual information as to the prejudice suffered and has provided no more than a
bald assertion of deficient performance, Petitioner’s first claim is clearly without merit as
Petitioner has shown neither deficient performance nor prejudice. See Palmer, 592 F.3d at 395;
see also Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016)
(a claim that counsel failed to investigate requires a showing as to what information would have
been produced and how that information would have changed the outcome of trial).
b. Petitioner’s identification related claim
Petitioner’s chief contention is that trial counsel was ineffective regarding his request for
a Wade hearing as to the out of court identifications by Petitioner’s victims. Essentially,
Petitioner asserts that had counsel properly challenged the identifications, they would not have
been admissible at trial. A Wade hearing is not required in every case wherein a defendant
challenges out of court identifications. See Watkins v. Sowders, 449 U.S. 341, 349 (1981). To
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show that he was prejudiced by counsel’s failure to seek a Wade hearing, a petitioner “must
show that he would likely have prevailed on [his] suppression motion and that, having prevailed,
there is a reasonable likelihood that he would not have been convicted.” Thomas v. Varner, 428
F.3d 491, 502 (3d Cir. 2005).
The Supreme Court set forth the standard which governs the admissibility of an out of
court identification in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Pursuant to Manson, an
identification procedure violates due process and the identification at issue is inadmissible where
the procedure used was “unnecessarily suggestive and . . . create[d] a substantial risk of
misidentification.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006); see also
United States v. Anthony, 458 F. App’x 215, 218 (3d Cir. 2012). Even where the procedure
used was so suggestive, “reliability is the linchpin in determining the admissibility of
identification testimony . . . The factors to be considered . . . include the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation. Against these factors is to
be weighed the corrupting effect of the suggestive identification itself.” Anthony, 458 F. App’x
at 218 (quoting Manson, 432 U.S. at 114).
Here, Petitioner asserts that trial counsel should have raised the issue before the trial
court that he raised on appeal and argued that the identifications at issue here were unduly
suggestive because the procedures used violated the New Jersey Attorney General’s guidelines
for identifications insomuch as the lead detective in his case conducted some of the
identifications in which the victims were unable to identify anyone, because the same officer
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(who was not initially part of the investigation) conducted multiple identification procedures
with multiple victims in which each identified Petitioner’s photograph after being shown it as
part of an array for the first time, and because the authorities did not keep a record of the
colloquies which passed between the officers and the victims during the investigations.
Initially, this Court must note that, as the Appellate Division observed, the Attorney General
guidelines “specifically provide that failure to follow them does not constitute grounds to
invalidate an identification, a point noted by the [New Jersey] Supreme Court.” Evans, 2011
WL 2496243 at *3; see also State v. Delgado, 188 N.J. 48, 61 n. 7 (2006). Thus, that the
detectives did not follow the guidelines in and of itself is insufficient to show that Petitioner
would have succeeded on his motion to suppress the identifications, Petitioner must still show
that the procedures used were unduly suggestive and that the identifications lacked sufficient
reliability to be admitted in any event.
Petitioner has failed to present sufficient evidence to suggest that the identifications in
this case were unduly suggestive. While it is certainly not preferable for an involved officer to
conduct an identification, the witnesses did not identify Petitioner, whose photograph was not
present, during the photo arrays conducted by the detective in this case. The only array
resulting in Petitioner’s identification was the third conducted after Petitioner’s arrest on drug
charges, which was conducted by an uninvolved officer, albeit one who showed the array to
multiple witnesses, all of whom identified Petitioner. That the same officer showed the photos
to each witness, while not ideal, is insufficient to convince this Court that the identification in
this case was unduly suggestive. Any suggestiveness that might result would go to the weight
of the identification, not its admissibility. Likewise, that the conversation between the witnesses
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and the officers was not preserved for the record might not be ideal nor perfect under the New
Jersey guidelines, but, without more information which would suggest some underhanded or
suggestive activity by the officers, the lack of a record of what passed between the witnesses and
the officers is not sufficient to show that the procedures in this case were unduly suggestive.
Indeed, although testimony on the issue was not fully developed at trial, the police witnesses
actually testified that “they did preserve the photo arrays from which the witnesses identified
[Petitioner], and they kept a record of what the witnesses said when they made the
identifications.” As such, it appears that, contrary, to Petitioner’s assertions, the police did, to
some extent, keep a record of the exchange between officers and the victims during the
identification procedures, and Petitioner has not shown that the record that was kept indicates
that the identification was unduly suggestive. Even when all of Petitioner’s claims of
suggestiveness are viewed together, Petitioner has thus presented no facts which would convince
this Court that the identification in this case was unduly suggestive.
Even if Petitioner had been able to show that the procedures themselves were unduly
suggestive, nothing in the record suggests that the identifications in this matter would not still
have been admissible. Looking to the Manson factors, the victims in this matter had a
considerable ability to view Petitioner at the time of the crime, including his face as Petitioner
and his co-conspirators had not covered their faces, and considering the fact that they were
robbed at gun point, Petitioner and his fellow assailants certainly would have commanded the
victim’s attention. Likewise, that Petitioner’s co-conspirator then shot and killed one of the
victims suggests that the incident would have been strongly imprinted in the minds of the
victims. The identification in this case took place only a few months after the shooting, and
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despite being given two opportunities to do so within a few days and weeks of the shooting, the
victims did not misidentify another individual in Petitioner’s place during the first two photo
arrays, each identifying Petitioner once his photo was presented in the third array. The victims’
testimony at trial likewise indicated that each was certain of Petitioner’s involvement. Given
Petitioner’s failure to show that the procedures used here were unduly suggestive, it is clear from
these facts that the identifications were sufficiently reliable to be admitted at trial. Thus,
Petitioner has failed to show that he likely would have succeeded on his suppression motion had
counsel raised these arguments, and thus has not shown that counsel was ineffective in failing to
make these claims. 2 Thomas, 428 F.3d at 502.
Petitioner also asserts that trial counsel was ineffective in failing to raise certain
inconsistencies at trial and at the Wade hearing regarding two of the victims – Ragland and
Faubert. Petitioner takes issue with Ragland testifying that he identified Petitioner’s photo
twice even though the record and Petitioner both assert that he was only shown Petitioner’s
picture during the third photo array, and Faubert’s having initially claimed that Petitioner was the
one who shot his friend rather than one of the other robbers involved in this incident. As to
Faubert, it is clear from the record that Faubert was cross-examined on this issue at length, and
Faubert was consistent throughout that Petitioner was one of his assailants, even if he was
2
This Court must also note that defense counsel extensively cross-examined the officers in this
case as to proper identifications procedures and the procedures used in this case, that counsel
emphasized the issues with the identifications during his summation and called the jury’s
attention to the alleged procedural infirmities, and that the trial court gave the jury an
identification instruction. Thus, it is doubtful that counsel can be said to have been deficient
with regard to the identification issue.
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inconsistent as to whether Petitioner was the one who shot his friend. (See Document 13
attached to ECF No. 6 at 34-37).
As to Ragland, Petitioner’s assertions are inaccurate. Ragland specifically testified on
cross-examination that the first time he made an identification was when he was shown
Petitioner’s picture as one of several pictures. (Document 12 attached to ECF No. 6 at 160-70).
Although Ragland said that he saw others who looked similar to Petitioner and told police there
were people who “looked like” the guy, he did not identify them in Petitioner’s place. In any
event, counsel directly cross-examined Ragland on this issue at length and clearly brought it to
the jury’s attention. (Id.). Thus, to the extent that Petitioner asserts counsel should have
brought the issue to the jury’s attention outside of his motion to suppress, counsel did so, and
Petitioner’s claim on that basis must also fail. To the extent that Petitioner asserts that counsel
also should have raised Detective Smith’s actions seeking to keep Petitioner as a suspect in this
case in relation to the identification, Petitioner has failed to present any evidence to suggest this
was improper in light of Petitioner’s connection to one of the stolen cell phones and the
identification of Petitioner by the victims, and as such counsel’s failure to raise that “issue” is
likewise not ineffective assistance of counsel.
In a related claim, Petitioner also asserts that the trial court erred in sua sponte failing to
require a full Wade hearing after the procedural imperfections Petitioner raises above came to
light. As this Court explained above, the infirmities Petitioner raises are insufficient to show
that the identification procedures used in this case were unduly suggestive. As Petitioner had
not made out even a prima facie showing of undue suggestiveness given the claim he did raise
before the trial court was without merit as the witnesses had not been shown Petitioner’s photo
14
on multiple occasions, and as Petitioner has failed to provide facts which would be sufficient to
make out a threshold showing of undue suggestiveness after the fact, Petitioner has in turn failed
to show that a fuller Wade hearing was necessary in this case, let alone that the trial court should
have required one sua sponte. Petitioner’s claim that the trial court erred in not holding a fuller
Wade hearing beyond the one requested by defense counsel is thus without merit and does not
provide a basis for habeas relief.
c. Petitioner’s prosecutorial misconduct related claim
Petitioner next asserts that counsel proved ineffective by failing to object to several
comments made by the prosecutor during summation which Petitioner believes amounted to
prosecutorial misconduct. Petitioner specifically takes issue with counsel’s failure to object to
the following statements by the prosecutor in her summation:
Now, one of the things you’ll have to do is judge the credibility of
the witnesses who were there [and] who came before you; [including
the victims] Nicole Richardson, Kiana Basden, Jason Faubert and
Isaiah Ragland.
If in fact, each of these witnesses said in their statements that
night to the police after what happened exactly the same thing, by
clothing, by height, by weight, then I would submit you would say
to yourself, you know what, that seems a little too coached.
I asked the time period, the detective what time was the
statement taken from these various people, because you have to, you
know, we’re sitting here two years later. You have to imagine, first
of all, keep in mind their age. Now Nicole Richardson is 17 years
old, they’re all young basically late teenagers, young adults. But
the horror of what had occurred to them that night, Isaiah Ragland
said it best on cross examination under questioning by [defense
counsel]. My best friend was just murdered in front of me, you
know, and his statement was at six in the morning.
15
So you keep that in mind, all right. When they’re giving
descriptions, and consider [defense counsel] said well Kiana Basden
was trying to [p]ull a fast one. I submit to you that these witnesses
were credible, and you judge credibility every day in your life, all
right. It’s not some arcane thing, with your kids, with people you
work with, you know if somebody is being up front with you. Or
they might have made a mistake, or they might have said an honest
mistake.
Yesterday I think there was a different sheriff’s officer
sitting there than there is today. If every one of us wrote down what
the guy yesterday [looked like], how tall he was, how much he
weighed, what his hair is like, probably [there would be] some
differences. Maybe somebody would say six feet, somebody
would say five 11. Does that mean if you said six feet and you said
five 11 somebody’s lying? Oh, one said six feet, one said five 11.
You have to look at the material, the material that is significant,
important descriptions that were given that night. And they’re
consistent with all of these witnesses that night, given in the
aftermath of this horror that had just occurred. They’re consistent
with what happened.
[Counsel describes the scene before the crime, noting that
Kelly, Basden, and Ragland were all in a hallway near some steps
before Petitioner and his co-defendants arrived].
A few minutes later Nicole Richardson is leaving the
building and a female enters. Generally they’re consistent, all of
these witnesses later when they give their statements, the female has
a trench coat on. There’s a North Face jacket by that individual,
that first male. And then the female comes in and two males come
in. They all describe the shooter [as] having a silver gun. And
that’s the gun that’s used.
They describe the other individual, the other male as having
a black gun, and that’s significant. Because later on, you keep in
mind, that was said that night. Later on, you look at, you know,
what was proven. So when you judge the credibility of all of these
witnesses, think about what they said that night and whether they
were consistent in the material aspects, the important aspects,
because you’re going to have differences. In any situation like this,
between silver, between gray, and so forth.
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I submit to you when you look at all of these witnesses who
came in, [Defense counsel] says they’re trying to . . . pull a fast one.
You decide. And I submit to you that they were not. In here, or
that night. They described to the best of their ability what they saw
that night[.]
And like I said, keep in mind what Isaiah Ragland said, he
was completely emotional and distraught. You know, when you
arrive, there’s a lot of questions at the scene with this responding
officer. I mean you have somebody literally actually truly . . .
bleeding to death. What is this officer supposed to do, wait a
minute, I got to fill this form out and check off mustache or not
mustache, or this or that in other boxes on a form.
I mean use your common sense when you’re examining
these things. And what you ultimately have to do after judging the
credibility of what these witnesses said that happened that night, and
then looking at the identifications made, is look at the integrity of
the identifications. And you look back and say is the identification
ultimately made consistent with what they said that night in material
aspects. And I submit to you that it is.
[Counsel then turns to issues Defense counsel raised as to the police
investigation as to Petitioner.]
And so the detective gets phone records, applies for a
warrant, gets the warrant, ultimately gets records back. The phone
records in this case are very significant. I never said, I don’t say
now, how could we possibly know who’s on the other end of the
phone. If I lost my phone tomorrow and somebody’s making calls
on it, who knows who it is.
But, what is significant, and this goes [to] when you decide
[whether Petitioner was] there. Of course we don’t know who is
answering the phone of [Petitioner]. We don’t know who is
making the calls. But look at these phone records, because you can
ascertain from the timing here you have Jason Faubert’s phone, the
victim’s phone, taken in the robbery homicide, the approximate time
being shortly before 10 p.m. of the robbery homicide, and then 11
minutes after 10 there’s a call from Jason Faubert’s phone to this
phone number[.]
It turns out we later find out that’s [Petitioner’s] phone.
What do you think happens after a traumatic instance of the people
17
involved who commit a crime like this? They split up. They call
each other. That is a logical inference from this. Is it a
coincidence that the [stolen phone] is calling [Petitioner]? Maybe.
If that was all you had in this case, this is it. You’d say well, you
know what, who knows.
[Counsel goes on to explain that the phone evidence didn’t stand on
its own, but explains why the police began investigating Petitioner
based on the numerous calls between the stolen phone and
Petitioner.]
(Document 15 attached to ECF No. 6 at 39-46).
Petitioner alleges that counsel should have objected to these statements because they
amount to prosecutorial misconduct. Under New Jersey law, prosecutors “are expected to make
vigorous and forceful closing arguments, their primary duty is to see that justice is done.
Prosecutors are permitted to respond to arguments raised by defense counsel so long as they do
not stray beyond the evidence. Prosecutorial misconduct will constitute grounds for reversal
only where it is so egregious as to deprive defendants of a fair trial.” State v. Morais, 819 A.2d
424, 428-29 (N.J. App. Div.) (internal citations omitted), certif. denied, 832 A.2d 322 (N.J.
2003). Under Federal law, prosecutorial misconduct is similarly insufficient to overturn a
conviction unless it “so infect[s] the trial with unfairness as to make the resulting conviction a
denial of due process.” Reid v. Beard, 420 F. App’x 156, 159 (3d Cir. 2011) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)). A prosecutor’s comments must therefore always
be viewed “in context and in light of the entire trial, assessing the severity of the conduct, the
effect of [any] curative instructions, and the quantum of evidence against the [petitioner].” Id.at
159.
Viewing the comments made in this case in context, it is clear that the prosecutor’s
discussion of the evidence produced at trial was entirely fair comment. The passages Petitioner
18
decries were direct responses to the arguments of Petitioner’s counsel which suggested that the
jury should disregard the eye witnesses based on certain inconsistencies in their statements, and
regarding the phone record evidence. (See Document 15 attached to ECF No. 6 at 13-18). In
response to these attacks, the prosecutor reviewed the produced evidence with the jury and
discussed that evidence and the reasonable inferences to be drawn therefrom and argued that
what inconsistencies there were were natural results of a traumatic experience and were not
material to the actual statements the witnesses had given. Counsel’s discussion of the phone
records was likewise fair comment on the testimony regarding how Petitioner came to be a
suspect in this matter and a fair response to Petitioner’s counsel’s summation. Thus, these
comments were not prosecutorial misconduct, and counsel could not have been ineffective for
failing to challenge them as an objection to these comments would have been without merit.
See Morais, 19 A.2d at 428-29; Reid, 420 F. App’x at 159; United States v. Aldea, 450 F. App’x
151, 152 (3d Cir. 2011) (“[c]ounsel cannot be ineffective for failing to raise meritless claims”).
d. Petitioner’s claim that counsel failed to challenge the telephone records
Petitioner next claims that his trial counsel was ineffective for failing to challenge the
admission of his telephone records at trial. Specifically, Petitioner takes issue with the
admission of these records as a business record. Strongly undermining Petitioner’s claim,
however, is that counsel immediately objected to the admission of the records, and it was the trial
court, erroneously, who determined that the records should be admitted under the business record
exception to the hearsay rule. See Evans, 2011 WL 2496243 at *5. While acknowledging that
the trial court had erred in treating the records as a business record in the absence of the
19
appropriate foundation, the Appellate Division determined that the admission of the records in
this case was harmless beyond a reasonable doubt, and that their admission was insufficient to
warrant a reversal of Petitioner’s conviction regardless of whether they would be considered
“testimonial” hearsay sufficient to impugn the Confrontation Clause under Crawford. Id. at *56; see also United States v. Jimenez, 513 F.3d 62, 79-81 (3d Cir. 2008) (the improper admission
of testimonial hearsay not grounds for reversal where the hearsay’s admission was harmless
beyond a reasonable doubt). Nothing in the record suggests that this conclusion was in error.
The admission of testimonial hearsay in violation of Crawford will not provide grounds
for the reversal of a conviction where it is harmless beyond a reasonable doubt. Jimenez, 513
F.3d at 80. Such evidence is harmless beyond a reasonable doubt where “the error did not
substantially sway or substantially influence” the jury’s verdict. Id. (quoting United States v.
Iskander, 407 F.3d 232, 240 (4th Cir. 2005)). Here, the telephone records were admitted only to
show why the police began to treat Petitioner as a person of interest in their investigation
insomuch as one of the stolen cell phones had been used to call Petitioner repeatedly, including
shortly after the robbery. See Evans, 2011 WL 2496243 at *5-6. As the Appellate Division
noted, those telephone records can clearly be said to have been harmless in this case given the
staggering evidence of Petitioner’s guilt produced at trial including not only the testimony of
several eye witnesses all of whom identified Petitioner, but also Petitioner’s confession to the
police wherein he admitted his participation in the robbery, if not the murder of which he was
acquitted. Given the strong evidence of Petitioner’s guilt, including Petitioner’s admission
thereof to the police, the Appellate Division was entirely correct in determining that the
telephone records “were a drop in the ocean of evidence” which proved Petitioner’s guilt. Id. at
20
*5. Given this ocean of evidence, and the limited purpose for which the records were used – to
show why police began to suspect Petitioner, it is clear that the phone records did not
substantially sway or influence the jury, and the admission of those records, even assuming they
were testimonial hearsay, 3 was clearly harmless beyond a reasonable doubt. As such, Petitioner
was not prejudiced by counsel’s failure to more “zealously” object to the admission of the
records, and Petitioner has failed to show ineffective assistance of counsel.
e. Petitioner’s police notes related claim
Petitioner next asserts that counsel was ineffective in failing to request that the jury be
instructed to disregard the testimony of Officer Smith or for dismissal of Petitioner’s case
because Smith testified at trial that he had destroyed his notes after drafting his final report. As
the Appellate Division explained to Petitioner on direct appeal,
By 2007, the [New Jersey] Supreme Court had twice noted its
disapproval “that police officers engage in the seemingly routine
practice of destroying their contemporaneous notes of witness
interviews after the preparation of formal reports.” State v. Branch,
182 N.J. 338, 367 n. 10 (2005); State v. Cook, 179 N.J. 533, 542 n.
3 (2004). The Court stated this more pointedly three years after this
trial, in State v. P.S., 202 N.J. 232, 240 (2010). Finally, in 2011,
the Court explicitly held that police officers may not destroy their
notes, such notes must be turned over to the defense in discovery
pursuant to [the N.J. Court Rules], and failure to preserve the notes
could warrant an adverse inference charge. State v. W.B., [205 N.J.
588, 608-09 (2011)]. However, in W.B., the Court also specifically
provided that its holding would be prospective only. [Id.].
Evans, 2011 WL 2496243 at *6. Thus, at the time of Petitioner’s trial, police officers were
under no requirement to retain their initial notes in place of final reports. Indeed, even had W.B.
3
A finding this Court need not, and does not make.
21
been in place, the only thing to which Petitioner would have been entitled was an adverse
inference charge permitting the jury to assume that the officer destroyed his notes to strengthen
the State’s case, and not an order directing the jury to disregard the officer’s testimony nor the
dismissal of Petitioner’s charges. Id.
Even had Petitioner been in theory entitled to an adverse inference charge based on the
destruction of the notes, Petitioner would not be able to show that he was prejudiced in this case.
Although counsel did not move to dismiss or to have the officer’s testimony dismissed, nor did
he request an adverse inference charge, counsel not only cross-examined the officer on the issue,
but argued at length in his summation regarding the destruction of the notes, specifically arguing
that the officer destroyed the notes because they would have contradicted his testimony at trial.
(See Document 15 attached to ECF No. 6 at 34-36). Counsel argued forcefully that there was
information missing from the officer’s testimony and report, and that the officer deliberately
destroyed his notes because it would fill in those alleged gaps with information that either ran
counter to the officer’s testimony or would weaken the State’s case. (Id.). Thus, although no
adverse inference charge was given, counsel put the issue directly before the jury and argued that
they should use the destruction of the notes as a basis to question or outright reject the officer’s
testimony. Thus, Petitioner suffered no prejudice as he effectively received the same benefit he
could have gotten from an adverse inference charge – to have the issue of the destruction of the
notes put before the jury as a basis for rejecting the officer’s testimony and credibility. Counsel
thus used the destruction of the notes as a basis for his argument on Petitioner’s behalf in support
of both the contention that the officer’s coerced Petitioner into giving a false confession through
a lengthy interrogation and that the identifications were somewhat suspect. Thus, it appears,
22
based on the lack of caselaw to support Petitioner’s assertion and counsel’s lengthy argument at
summation, that counsel was not deficient and Petitioner suffered no prejudice. Petitioner has
thus established neither prong of an ineffective assistance claim, and his claim is thus without
merit.
f. Petitioner’s alibi related claim
Petitioner also asserts that trial counsel was ineffective in failing to “obtain, review, and
use [his] phone records to disprove the State’s theory” of the case. (ECF No. 1 at 33).
Petitioner, however provides no elaboration as to how these phone records would have provided
an alibi. Considering the only phone records at issue in this case show that Petitioner received
phone calls from one of the stolen phones shortly after the robbery, it is difficult to see how the
records would support this alleged alibi. Petitioner, in support of his contention, instead directs
this Court to the portion of his initial PCR brief which argued that the phone records should have
been held inadmissible under the Confrontation Claus. (Document 29 attached to ECF No. 6 at
70-74). This argument provides no support for Petitioner’s assertion that there was an
undiscovered alibi defense hidden somewhere in the phone records that he argues should never
have been admitted in the first place. Ultimately, Petitioner has provided no more than a bald
assertion of ineffective assistance of counsel and has provided no factual matter to support his
assertions, and as such has failed to establish his entitlement to relief. See Palmer, 592 F.3d at
395.
g. Petitioner’s inconsistent verdict and weight of the evidence claim
23
Petitioner also claims that trial counsel was ineffective in failing to challenge the verdict
based on the sufficiency of the evidence or an argument that the verdict was inconsistent. As to
the sufficiency of the verdict, given the strong evidence of Petitioner’s guilt including his own
confession and the testimony of numerous eye witnesses/victims, it is abundantly clear that no
motion challenging the sufficiency of the evidence against Petitioner would have succeeded, see,
e.g., Jackson v. Virginia, 443 U.S. 307, 319 (1979) (verdict against the weight of evidence only
where, viewing the facts in the light most favorable to the State, no reasonable trier of fact could
have found the elements of the crimes charged beyond a reasonable doubt), and counsel could
not have been ineffective in failing to bring such a meritless argument to the Court’s attention.
Aldea, 450 F. App’x at 152.
Petitioner’s claim that counsel should have argued that the verdict was inconsistent fairs
no better. Petitioner argues that his verdict was inconsistent insomuch as he was convicted of
armed robbery, which requires the presence of a weapon, but was acquitted of various weapon
possession charges. Petitioner’s argument, of course, ignores the fact that the jury likely
determined that Petitioner was guilty of armed robbery as an accomplice to his co-conspirator
who certainly had a gun since he shot and killed one of the victims, while still finding factually
that Petitioner himself had not possessed a firearm sufficient for the jury to conclude that he was
guilty of the various weapon offenses. In any event, inconsistent jury verdicts in and of
themselves do not render a conviction unconstitutional. See, e.g., United States v. Powell, 469
U.S. 57, 63 (1984); State v. Banko, 861 A.2d 110, 117-18 (N.J. 2004). Even if, as Petitioner
asserts, his conviction for armed robbery were inconsistent with his being found not guilty of the
weapon offenses, this would provide no basis for the overturning of his conviction, and a motion
24
on that basis would have been fruitless. As such, counsel was not ineffective in failing to raise
this argument before the trial court. Id.; Aldea, 450 F. App’x at 152.
h. Petitioner’s jury instruction claim
Petitioner next asserts that trial counsel was ineffective in failing to object to the jury
instructions. Specifically, Petitioner asserts that counsel should have objected to the trial court
telling the jury that attempted robbery and robbery are “one in the same (sic).” In making this
argument, however, Petitioner points the Court’s attention not to the jury charge, but to the trial
court’s answer to a question as to robbery and attempted robbery raised by the jury after the
charge. (Document 16 attached to ECF No. 6 at 5-15). In any event, the trial court never told
the jury that the two were one and the same. Indeed, in the very transcript to which Petitioner
directs the Court’s attention, the trial judge went out of his way to make sure the jury understood
the difference between the two offenses. (Id.). Thus, Petitioner’s assertion is utterly without
merit, and counsel could not have been ineffective in failing to raise such an objection. Aldea,
450 F. App’x at 152.
25
i. Petitioner’s claim of ineffective assistance of appellate counsel
Petitioner also claims that he received ineffective assistance of appellate counsel. The
Strickland standard applies to claims of ineffective assistance of appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000). “[I]t’s a well established principle[, however,] that counsel
decides which issues to pursue on appeal,” see Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.
1996), and appellate counsel need not raise every nonfrivolous claim a defendant requests.
Jones v. Barnes, 463 U.S. 745, 751 (1983). As a brief that raises every colorable claim runs the
risk of “burying good arguments,” the centerpiece of effective Appellate advocacy is winnowing
out weaker claims in favor of those more likely to provide an appellant with relief. Id. at 753;
see also Smith v. Murray, 477 U.S. 527, 536 (1986). Thus, the Supreme Court has held that
“[g]enerally, only when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.” See Robbins, 528 U.S. at 288
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). Petitioner specifically asserts that
appellate counsel was ineffective in the following ways: in failing to raise the sufficiency of the
evidence or inconsistent verdict arguments discussed above, in failing to raise the jury instruction
issue discussed above, and in failing to “adequately argue” that the trial court erred in admitting
Petitioner’s statement to the police. As to the first two claims, Petitioner’s claims are without
merit for the reasons discussed above. Because Petitioner’s inconsistent verdict, weight of the
evidence, and jury instruction claims are meritless, appellate counsel was not ineffective in
failing to raise those claims on appeal.
Petitioner also asserts that counsel should have raised a Miranda claim on appeal. The
only basis Petitioner provides for such a claim, however, is that police did not follow proper
26
“procedure and guidelines” and that the “time frame of the interrogation, 7:30 a.m.-12:20 p.m.,
was inconsistent with the detective’s testimony at trial.” Petitioner provides no further
elaboration as to this alleged Miranda claim.
Prior to trial, the trial Court held a Miranda hearing to determine whether Petitioner’s
rights had been violated. At that hearing, the jury heard the testimony of Detective Smith who
testified that Petitioner was advised of his Miranda rights verbally prior to being interrogated,
that Petitioner said he understood his rights, and that Petitioner verbally waived those rights.
(Document 6 attached to ECF No. 6 at 17-23). The detective also testified that Petitioner
eventually executed a written waiver of his rights. (Id. at 23). The detective further testified
that, after waiving his rights verbally, he admitted to his involvement in the robbery, and that
after waiving his rights in writing he gave a signed statement to the same effect. (Id. at 23-30).
Based on this testimony, supported by documentary proof including the signed waiver
and signed statement, this Court cannot conclude that any Miranda claim Petitioner wishes had
been raised on appeal was clearly stronger than those that appellate counsel did choose to raise.
See Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (Miranda not violated where a
defendant knowingly and voluntarily waives his rights prior to making a statement). Indeed, it
appears that the admission of Petitioner’s statement was entirely proper given the waiver of
Petitioner’s rights and Petitioner’s giving both an oral and written statement after that waiver.
Id. Petitioner’s vague assertions of inconsistent trial testimony, without elaboration, are patently
insufficient to suggest otherwise. As such, Petitioner has failed to show that he suffered
ineffective assistance of appellate counsel. See Robbins, 528 U.S. at 288.
27
j. Petitioner’s cumulative error claim
In his final claim, Petitioner asserts that this Court should consider the totality of the
errors at trial to determine whether Petitioner suffered ineffective assistance of counsel.
Petitioner, however, has failed to show that counsel was ineffective in any of his claims, and has
not shown that the trial court otherwise committed reversible error. Viewing his claims in the
aggregate does not improve Petitioner’s claims. Petitioner has failed to show that he suffered
any prejudice from counsel’s actions, and as such cannot establish ineffective assistance. As
such, Petitioner’s claim that counsel’s “failures” in the aggregate present a case of ineffective
assistance of counsel is without merit.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “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 that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because Petitioner’s habeas claims are without merit, he has failed to make a substantial showing
of a denial of a constitutional right. Likewise, because jurists of reason could not disagree with
this Court’s conclusion that Petitioner’s claims are without merit, the petition is not adequate to
receive encouragement to proceed further. This Court shall therefore deny Petitioner a certificate
of appealability.
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IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is DENIED
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
Dated: June 6, 2016
_s/ Susan D. Wigenton_____
Hon. Susan D. Wigenton,
United States District Judge
29
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