STATE OF NEW JERSEY VS. KARLA FREEMANÂ (04-02-0122, MERCER COUNTY AND STATEWIDE)
A-3386-14T2
| N.J. Super. Ct. App. Div. | Sep 7, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3386-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KARLA FREEMAN,
Defendant-Appellant.
_______________________________________________
Submitted January 10, 2017 – Decided September 7, 2017
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 04-02-0122.
Joseph E. Krakora, Public Defender, attorney
for appellant (Craig S. Leeds, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Scott J. Gershman,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Karla Freeman challenges the denial of her
petition for post-conviction relief (PCR), which raised various
claims of ineffective assistance of her trial and appellate
counsel. The PCR judge evaluated all of defendant's claims and
conducted a full evidentiary hearing before denying the
petition. For the reasons that follow, we affirm the order
denying relief, but remand for the limited purpose of correcting
the judgment of conviction to reflect a final charge of second-
degree robbery rather than first-degree robbery.
I.
In 2004, a grand jury sitting in Mercer County returned an
indictment charging defendant and co-defendant, Maurice Turner,
with first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one);
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two);
two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts
three and four); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)
(count six). Defendant was charged alone with fourth-degree
tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count
seven).
Defendant and Turner were tried to a jury in March 2006,
but a mistrial was declared before the jury deliberated.
Defendant's case was severed from Turner's and she was retried.
2 A-3386-14T2
We repeat relevant facts from our 2010 opinion affirming her
conviction:
This matter stems from an incident that
occurred in the early morning hours of May 24,
2003 that resulted in the death of William
Goldware. . . .
At 2:44 a.m., the Trenton Police
Department received a 911 call for which
police responded to defendant's home address.
. . . Inside the house, the officers observed
a flipped-over barstool and a blood stain on
the wall. On the second floor, they found
defendant sitting on a bed in the bedroom.
The bedroom showed obvious signs of struggle,
as there was an overturned ironing board and
blood on the walls and dresser. Defendant was
crying and talking on the phone. She was
wearing a blood-stained nightgown, and one of
the fingernails on her left hand was missing.
The fingernail was found in another bedroom.
Goldware was found lying in a puddle of
blood on the bathroom floor. He was wearing
boxer shorts, and he had twenty-four stab
wounds, two of which were later described as
fatal. . . .
. . . .
At headquarters, defendant executed a
waiver of her Miranda[1] rights, and then
described the evening's events . . . . She
stated that while at Black Jack's, she saw
Warren "Cisco" Littlejohn, whom she
recognized. Cisco told her Goldware was
interested in her, and she and Goldware
exchanged phone numbers. Goldware later called
her and asked if he could come over to her
house. She said yes, and the two exchanged
1
Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966).
3 A-3386-14T2
several additional phone calls before Goldware
arrived. While upstairs with Goldware,
defendant heard a "screech," and an intruder
began beating both her and Goldware. The
intruder made demands for property, saying
"[w]here the fuck it at?". When defendant
responded with confusion, the intruder said
"shut the fuck up, bitch." Defendant and
Goldware then went into the bathroom, but they
could not escape because of the bars on the
window. Defendant told [Detective] Thomas that
the intruder was 6'1", slim, twenty-nine years
old, and that he "sounded like a black male."
Defendant also stated that she believed the
intruder had hit her and Goldware with the
ironing board and stool.
Defendant reported that after the attack,
she first called her grandmother because "when
you're in trouble, you think about talking to
your mom." Thomas asked why she felt she was
in trouble if she did nothing wrong; defendant
responded "I feel like I did something wrong."
Before her grandmother answered the phone,
defendant hung up and called 911. After
relating this story, defendant asked Thomas
if he thought she had committed the crime. He
stated, "I think you did it or someone who you
know did it," at which point defendant started
"crying hysterically."
Defendant then told Thomas she killed
Goldware and she agreed to give a formal
statement to that effect. Defendant stated
that Littlejohn facilitated a sex-for-money
arrangement between defendant and Goldware,
and Goldware came to defendant's house. A
fight ensued when Goldware demanded sex and
refused to pay for it. Defendant stated that
during the fight, she grabbed a knife from her
kitchen and when Goldware started to choke
her, she used the knife to stab him.
Later, however, while Thomas was
compiling defendant's statement defendant
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presented a different version of the evening's
events. She said "Detective, that's not what
happened. Me and Maurice set him up to rob
him, and Maurice stabbed him." When Thomas
asked if she was sure, she replied "No, no,
that's not what happened. . . . I killed him."
Detective Edgar Rios next interviewed
defendant in order to clarify her answers.
Defendant stated that Goldware called her and
asked her how much it would cost to have sex;
she informed him it would be $250. Goldware
propositioned defendant which defendant told
Rios, made her feel "sleazy" because she felt
that Goldware thought he could have sex with
her for free. Defendant admitted that she
would not have had sex with Goldware for free
but that she would have done it for $250; she
needed money to pay her bills. Defendant
further stated that after she had stabbed
Goldware, she called her cousin's boyfriend,
co-defendant Maurice Turner. When Turner
arrived, she gave him the knife, told him she
stabbed someone, and then directed him to
leave. When asked why she called Turner,
defendant stated, "[b]ecause I know he has a
car. And I needed someone to get rid of the
knife so I could tell you the story about
someone breaking in and beating us up."
Upon meeting with Thomas again, defendant
told him her sister told her she better tell
Thomas the truth about what happened.
Defendant executed another Miranda waiver
form, and again related to Thomas that
Littlejohn arranged a meeting between her and
Goldware. When Goldware called her later that
evening, she informed him that she was going
home and that she would call him when she got
there. After defendant left Black Jack's, she
asked Turner for a ride home. She declined
Turner's offer to go to an after-hours bar,
stating that she "got some money coming to my
house." After hearing this, Turner told
5 A-3386-14T2
defendant to leave her door open so that he
could enter and rob Goldware. . . .
. . . .
Defendant then told Thomas that after
Goldware arrived, she left the door open so
that Turner could enter. Defendant heard
Turner as he entered the house and climbed the
stairs, so she distracted Goldware by kissing
him. When Turner arrived in the bedroom, he
pushed defendant and Goldware to the floor and
began asking "where it's at?". Turner then
stabbed Goldware "three or four times."
Defendant and Goldware escaped to the
bathroom, but Turner followed them. When
Turner finally fled the scene, defendant first
dialed her grandmother's telephone number
before calling 911.
[State v. Freeman, No. A-1369-07 (App. Div.
Sept. 10, 2010) (slip op. at 3-9) certif.
denied, 205 N.J. 100 (2011).]
The jury found defendant not guilty of first-degree robbery
and purposeful or knowing murder, but guilty of felony murder
and second-degree robbery as a lesser-included offense of the
first-degree charge. Counts three, five, six, and seven were
dismissed.
The sentencing judge merged the robbery count into the
felony murder count and sentenced defendant to a term of thirty
years subject to a parole disqualifier for the full term.
Defendant appealed, arguing that her conviction should be
reversed because the trial judge's jury charge "failed to
instruct the jury on 'divergent factual versions' of causation
6 A-3386-14T2
for felony murder." Id. at 18. We rejected defendant's claim that her conviction on the felony murder charge was precluded by her acquittal of purposeful or knowing murder or first-degree robbery because the felony murder statute "includes both first- degree and second-degree robbery, as a predicate offense for a conviction of felony murder."Id. at 31.
The Supreme Court denied defendant's petition for certification.205 N.J. 100
(2011).
Defendant filed a pro se PCR petition alleging ineffective
assistance of trial counsel for failing to advise defendant to
accept the State's pre-trial plea offer of fifteen years, and
failure to locate, interview, and call a witness at trial who
could have testified that defendant "consumed numerous alcoholic
drinks" on the day of the murder and was intoxicated.
After PCR counsel was appointed, a brief containing
additional claims was submitted including allegations that trial
counsel was ineffective for failing to argue for dismissal of
the indictment on double jeopardy grounds after the mistrial and
for failing to discuss defendant's right to testify with her.
Defendant also claimed appellate counsel failed to argue that
the trial judge committed reversible error by denying trial
counsel's request for a jury charge on conspiracy.
7 A-3386-14T2
After hearing oral argument, the PCR judge ordered an
evidentiary hearing. On July 25, 2014, the judge heard the
testimony of defendant's trial counsel, Robin Lord, and
defendant. On January 5, 2015, the PCR judge entered an order
accompanied by an eleven-page written decision denying
defendant's petition.
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL IN VIOLATION OF THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS AND THE
LOWER COURT ERRED IN CONCLUDING OTHERWISE.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR
NOT ARGUING FOR DISMISSAL OF THE
INDICTMENT BASED ON DOUBLE JEOPARDY
GROUNDS AFTER THE FIRST TRIAL ENDED
IN A MISTRIAL.
B. TRIAL COUNSEL WAS INEFFECTIVE
DURING THE PLEA NEGOTIATIONS BY
FAILING TO FULLY AND PROPERLY CONVEY
THE PLEA OFFER TO THE DEFENDANT SO
THAT DEFENDANT COULD MAKE A KNOWING
AND INFORMED DECISION.
C. TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO FULLY INVESTIGATE THE
DEFENDANT'S CASE, AND THEREAFTER,
PROFFER WITNESSES ON HER BEHALF.
D. THE DEFENDANT WAS DEPRIVED OF HER
RIGHT TO TESTIFY AT TRIAL ON HER OWN
BEHALF BY VIRTUE OF TRIAL COUNSEL'S
INEFFECTIVE PRESENTATION.
8 A-3386-14T2
POINT II
THE PROSECUTOR'S REFUSAL TO OFFER A PLEA
BARGAIN TO THE DEFENDANT PRIOR TO THE FIRST
TRIAL WAS RETALIATORY, PUNITIVE AND DEPRIVED
DEFENDANT OF EQUAL PROTECTION UNDER THE LAW.
POINT III
THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT
TO A FAIR TRIAL BY IMPARTIAL JURY AND HIS DUE
PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF
IMPROPER CHARGES TO THE JURY.
POINT IV
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED
OF RENDERED THE TRIAL UNFAIR.
POINT V
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF APPELLATE COUNSEL ON DIRECT APPEAL.
II.
To prove a claim for ineffective assistance, a defendant
must show that counsel's performance was deficient, and that the
deficiency caused him or her prejudice. State v. Goodwin, 173
N.J. 583, 596 (2002) (quoting Strickland v. Washington,466 U.S. 668
, 687,104 S. Ct. 2052
, 2064,80 L. Ed. 2d 674
, 693 (1984)). Counsel's performance qualifies as deficient only if it falls outside "the wide range of reasonable professional assistance."Strickland, supra
, 466 U.S. at689, 104 S. Ct. at 2065
, 80 L.
Ed. 2d at 694. Any such deficiency is prejudicial, moreover,
only if there is a reasonable probability that "but for
9 A-3386-14T2
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694, 104 S. Ct. at2068, 80 L. Ed. 2d at 698
. Generally, a trial counsel's strategic choices are entitled to a considerable presumption of competence, so long as they are made after an appropriate investigation of relevant law and fact. State v. Harris,181 N.J. 391
, 488 (2004) (quotingStrickland, supra
, 466 U.S. at690-91, 104 S. Ct. at 2066
, 80 L. Ed. 2d at 695), cert. denied,545 U.S. 1145
,125 S. Ct. 2973
,162 L. Ed. 2d 898
(2005).
A PCR petitioner bears the burden of establishing his or
her right to relief pursuant to that standard by the
preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). A judge's findings in that regard after an evidentiary hearing must be afforded deference on review so long as they are supported by sufficient credible evidence in the record.Harris, supra
, 181 N.J. at 415. That is particularly so to the extent those findings are colored by the court's credibility evaluations made after an opportunity to observe live testimony first-hand, State v. Nash,212 N.J. 518
, 540 (2013), and by its feel of the case, State v. Taccetta,200 N.J. 183
, 194 (2009). Its legal conclusions, however, are subject to de novo review on appeal.Nash, supra
, 212 N.J. at 540-41.
10 A-3386-14T2
A.
Defendant first claims that her trial counsel was
ineffective for failing to move for a dismissal of her
indictment after the mistrial. She argues the State caused the
mistrial and should therefore have been barred from prosecuting
her a second time for the same offenses.
"It is basic that a defendant is entitled to have a trial
proceed to its normal conclusion. Subsumed in this
constitutional protection is the policy to be protected from the
harassment of successive prosecutions, . . . and to receive only
one punishment for an offense." State v. Rechtschaffer, 70 N.J.
395, 404 (1976) (citing Downum v. United States,372 U.S. 734
, 736,83 S. Ct. 1033
, 1034,10 L. Ed. 2d 100
, 102-03 (1963)). Although jeopardy attaches once the "jury is impaneled and sworn," State v. Farmer,48 N.J. 145
, 169 (1966), cert. denied,386 U.S. 991
,87 S. Ct. 1305
,18 L. Ed. 2d 335
(1967), termination of a trial thereafter, but before conclusion with a final verdict, does not invariably preclude subsequent prosecution of a defendant for the same charges. State v. Loyal,164 N.J. 418
, 435 (2000). Unless termination was improper, "the
defendant's right to have his initial trial completed is
subordinated to the public's interest in fair trials and
11 A-3386-14T2
reliable judgments." Ibid. (citing Wade v. Hunter,336 U.S. 684
, 689,69 S. Ct. 834
, 837,93 L. Ed. 974
, 978 (1949)).
Whether a mistrial bars re-prosecution depends on the
circumstances of each case. Illinois v. Somerville, 410 U.S.
458, 464,93 S. Ct. 1066
, 1070,35 L. Ed. 2d 425
, 431 (1973). Generally, subsequent retrial is constitutionally permissible so long as there was "sufficient legal reason and manifest necessity to terminate [the] trial,"Loyal, supra
, 164 N.J. at 435, or the defendant consents to the termination, United States v. Dinitz,424 U.S. 600
, 607, 611,96 S. Ct. 1075
, 1079-81,47 L. Ed. 2d 267
, 274, 276 (1976), and provided, in either case, that the mistrial was not brought about by "bad faith, inexcusable neglect or inadvertence[,] or oppressive conduct on the part of the State."Farmer, supra
, 48 N.J. at 174.
Statutory protection against double jeopardy echoes the
constitutional standard in relevant respect. See N.J.S.A. 2C:1-
9(d) (delineating proper circumstances for termination,
including where made with defendant's consent or "required by a
sufficient legal reason and a manifest or absolute or overriding
necessity").
Here, the mistrial was ordered after a detective, called by
the State, testified on cross-examination that defendant had
provided investigators with certain incriminating evidence
12 A-3386-14T2
against Turner. After confirming that investigators obtained a
warrant for phone records for the phones of three individuals,
the detective not only identified defendant as the source of the
information, but volunteered that one of the phone numbers she
provided belonged to Turner:
Q Who gave you these phone numbers to
put in your affidavit to get the warrant?
A We initially got those phone numbers
from Karla Freeman at the police station.
Q At the police department?
A Yes.
Q Karla Freeman gave all three phone
numbers?
A Yes. She obtained those -- she knew
her cell phone number, she gave us her cell
phone number. Then she retrieved the two
numbers from her cell phone belonging to
Maurice Turner and also the victim.
. . . .
She stated she had Maurice Turner's cell
phone number, but she did not know it by heart.
It was in her cell phone.
After hearing these responses, Turner's counsel moved for a
mistrial pursuant to United States v. Bruton, 391 U.S. 123, 126,88 S. Ct. 1620
, 1622,20 L. Ed. 2d 476
, 479 (1968), on the
ground that there was no way for him to cross-examine defendant,
the source of the information incriminating his client. The
13 A-3386-14T2
detective was then questioned out of the jury's presence and
acknowledged he had never interviewed defendant himself and had
no personal knowledge of the incriminating statement.
Defendant's counsel joined in the motion, and the trial judge
granted a mistrial the following day although defendant fails to
provide any record of that decision in her appellate appendix.
The PCR judge concluded that defendant's counsel was not
ineffective for failing to request a dismissal after the
mistrial, because termination was justified by manifest
necessity, and defendant did not object to the mistrial.
Defendant does not dispute that the mistrial here was
legally justified, the testimony which led to the mistrial was
elicited during cross-examination, the mistrial motion was
initially made by Turner's counsel, and that defendant's counsel
joined in the motion. She asserts that the State should be held
accountable for the mistake made by its own witness,
particularly in light of the extensive attention given in
pretrial practice to the exclusion of inculpatory statements
like the one that triggered the mistrial, and the State's
insistence on conducting a joint trial in spite of the potential
pitfalls. Defendant does not allege bad faith or oppressive
conduct, but argues that the State's "inexcusable neglect"
should have barred her retrial.
14 A-3386-14T2
We are satisfied that there was no inexcusable neglect, as
the detective unexpectedly provided inadmissible testimony in
response to a question from defendant's counsel. Dismissal of
the indictment on double jeopardy grounds was not required and
defendant's counsel cannot be deemed ineffective for failing to
make a meritless motion. State v. Worlock, 117 N.J. 596, 625
(1990).
B.
Defendant next argues that her trial counsel was
ineffective for failure to adequately explain to her a favorable
plea offer, asserting that, had she properly understood its
terms, she would have accepted it.
The constitutional right of a criminal defendant to
effective assistance of counsel extends to the plea bargaining
stage. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied,174 N.J. 544
(2002). A counsel's "gross misadvice of sentencing exposure that prevents [a] defendant from making a fair evaluation of a plea offer and induces him [or her] to reject a plea agreement he [or she] otherwise would likely have accepted constitutes remediable ineffective assistance."Ibid. (citations omitted). Defendant
testified at the hearing that the State made no
plea offer prior to the first trial, but offered a
15 A-3386-14T2
recommendation of a fifteen-year term in return for her plea to
manslaughter and robbery. Defendant testified that she objected
to pleading guilty to manslaughter, as she felt she did not
"assist" Turner in killing Goldware. Defendant claimed that
Lord did not explain to her that her willing participation in
the robbery was legally sufficient to establish felony murder.
Defendant now claims that she would have accepted the plea offer
had she known that. The plea agreement also required defendant
to testify against Turner. Defendant admitted that she was
reluctant to testify against Turner because he was a gang
member, but explained she would have done it because of her son.
Lord testified that she had sought a deal for a fifteen-
year sentence, but could not recall whether the State made such
an offer and could not find a written record of a plea offer in
her files. Lord explained that it was her practice to advise
her client as to any plea offer.
The judge noted that defendant had expressed reluctance to
testify against Turner, and was confident she would not be held
responsible for Goldware's murder. The judge concluded that
defendant willingly rejected the plea offer; failed to
demonstrate that Lord's advice was deficient; and defendant's
claim that she did not understand the charges was insufficient
to meet the standard for establishing an ineffective assistance
16 A-3386-14T2
claim. We find no reason to disturb the findings of the PCR
judge and find no evidence that defendant's counsel failed to
adequately convey the plea offer to defendant.
C.
Defendant next claims that her trial counsel was
ineffective for failing to interview two witnesses that she
suggested and to advise her of the opportunity to call character
witnesses so that she could have suggested others who might
testify on her behalf.
At the hearing, defendant testified that Lord conveyed a
plea offer from the State after the first trial ended in a
mistrial: In return for a guilty plea to manslaughter and
robbery, she was offered a fifteen-year sentence.
Defendant testified that she asked Lord to interview Robin
Bromley and Rotina Priester. Defendant suggested Priester could
have served as a character witness to counter what she perceived
as her portrayal at trial as a "monster" and a "horrible
person." In her affidavit, defendant claimed Bromley could have
testified that she and defendant had been drinking that day and
perhaps supported a defense of voluntary intoxication. On
cross-examination, the State confronted defendant with Bromley's
statement to police that defendant had told Bromley not to
return to her house the night of the murder. Lord had no
17 A-3386-14T2
specific recollection of defendant recommending that she
interview these two potential witnesses.
The PCR judge concluded that defendant had failed to
establish any prejudice from trial counsel's failure to
investigate or call either witness. The judge noted that
counsel's general disinclination to call such witnesses was a
reasonable strategic choice entitled to some deference, and
doubted, in any event, that Bromley's testimony would have been
helpful in light of her statement to the police, or that any
favorable testimony from character witnesses would have
influenced the outcome of defendant's case.
"[W]hen a petitioner claims [her] trial attorney
inadequately investigated [her] case, [she] must assert the
facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge
of the affiant or the person making the certification." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing R. 1:6- 6), certif. denied,162 N.J. 199
(1999).
We are satisfied that defendant failed to provide any
support for her claim of ineffective assistance here and we will
not second-guess her counsel's strategic decision not to call a
witnesses who could have provided damaging testimony at trial.
18 A-3386-14T2
D.
Defendant next claims that she was deprived of her right to
testify at trial as her trial counsel failed to adequately
advise her of that right.
At the evidentiary hearing, defendant could not recall
counsel ever having discussed with her the option of testifying
at trial. When asked whether she wanted to testify, she
initially replied in the affirmative, but quickly clarified, "I
did but I didn't." She continued:
the only reason why I didn't is because the
things that's going on right now out there
with those streets, about snitching and
telling. But I also was under -- I thought
that the evidence spoke for itself. I really
didn't feel that I was going to get convicted
of felony murder. I really didn't feel that
I was.
Defendant acknowledged that she never told counsel she
wanted to testify, and that counsel never advised her against
testifying.
Lord testified that she had no specific recollection of
what advice she provided to defendant, but her practice was to
explain "the pros and cons" of testifying at trial to her
clients. When shown a portion of the trial transcript
indicating she told the trial judge that she had spoken with
defendant about her right to testify, Lord's recollection was
19 A-3386-14T2
refreshed that she had done so and conveyed to the trial judge
"it remains [defendant's] position she will not testify."
A criminal defendant possesses a fundamental right to
testify on his or her own behalf at trial, a right which may be
waived "only by [the defendant's own] 'intentional
relinquishment or abandonment.'" State v. Savage, 120 N.J. 594, 628 (1990) (quoting Johnson v. Zerbst,304 U.S. 458
, 464, 58 S. Ct. 1019, 1023,82 L. Ed. 1461
, 1466 (1938)). To inform the defendant's decision whether to testify, counsel has a duty to "advis[e him or her] of the benefits inherent in exercising that right and the consequences inherent in waiving it."Id. at 631.
A failure in that regard may give rise to a claim for ineffective assistance.Ibid. The trial record
demonstrates that defendant was apprised
by the trial judge of her right to testify, stated that she had
no questions about it, and was permitted fifteen minutes to
discuss the matter with counsel prior to making a decision. At
the conclusion of that discussion, counsel informed the court,
and defendant confirmed, that she wished to remain silent.
Defendant's claims that she wanted to testify but declined
because she was uninformed find no support in the record. Nor
did defendant's testimony at the hearing, where she was, at
best, ambivalent about her desire to testify, buttress her
20 A-3386-14T2
claim. The PCR judge's conclusion that counsel was not
ineffective for failure to advise defendant of her right to
testify finds ample support in the record.
E.
Defendant next contends that appellate counsel's failure to
raise the prosecutor's refusal to offer a plea bargain prior to
the first trial, and to challenge the jury charge on accomplice
liability on direct appeal deprived her of effective assistance
of counsel.
The constitutional guarantee of effective assistance of
counsel extends to a defendant's representation on a first
appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836,83 L. Ed. 2d 821
, 830 (1985). Claims for ineffective assistance of appellate counsel are evaluated according to the same standard as those regarding trial counsel. State v. Gaither,396 N.J. Super. 508
, 513-14 (App. Div. 2007), certif. denied,194 N.J. 444
(2008).
"The decision whether to offer a plea bargain is a matter
of prosecutorial authority and discretion." State v. Gruber, 362
N.J. Super. 519, 537 (App. Div.), certif. denied,178 N.J. 251
(2003). "[A] defendant has no legal entitlement to compel a
plea offer or a plea bargain; the decision whether to engage in
such bargaining rests with the prosecutor." State v. Williams,
21 A-3386-14T2
277 N.J. Super. 40, 46 (1994).
Defendant relied on a statement made by the prosecutor to a
detective at a pretrial hearing and overheard by defendant.
After defendant's counsel had demanded outstanding discovery,
the prosecutor told the detective, "if [defendant's counsel] was
going to make it hard on [the prosecutor], then [the prosecutor
was] going to make it hard on [defendant]."
The prosecutor did not deny making the statement but
explained:
Judge, I believe it was said with respect to
[counsel], but it's -- the notion is that
[counsel] has approached us for consideration
on behalf of her client. And I just talked
to the detective, and I said, if it's going
to be hard for us, we're not going to have any
consideration for her.
Personally, Judge, I was talking to the
lead detective, and I didn't know we were
going to be subject to eavesdropping. If I
caused [counsel] some concern, I'm sorry.
Defendant's counsel then moved to have the prosecutor
removed from the case, arguing it was unacceptable for the
prosecutor to penalize defendant for requesting discovery that
should already have been provided. Counsel surmised that the
prosecutor would also "penalize" defendant by not offering her
"a lenient plea bargain." The prosecutor responded that he "had
conversations with the family of the victim" and was "not
22 A-3386-14T2
inclined to give [defendant] a plea bargain." The judge denied
defendant's motion and the matter was not raised on direct
appeal.
At the PCR hearing, Lord recalled what she perceived as the
prosecutor's unreasonable refusal to make a plea offer and, with
reference to the incident at the pretrial hearing, her belief
that he was simply being "vindictive" because of her discovery
request. Appellate counsel did not testify.
The judge concluded that defendant had not demonstrated any
deficiency in appellate counsel's performance in not raising the
issue. The judge doubted counsel would have been successful if
the issue has been raised, particularly given the State's plea
offer prior to the second trial, which cut defendant's exposure
"in half." The judge found that defendant had not demonstrated
prejudice, and had not shown that further litigation of the
prosecutorial misconduct claim would have changed the outcome of
her case.
While we do not condone the prosecutor's comment, we agree
with the PCR judge that defendant failed to demonstrate
prejudice and was ultimately offered a favorable plea agreement
which she rejected. The judge appropriately concluded that
appellate counsel was not ineffective for failing to raise this
claim of prosecutorial misconduct on appeal.
23 A-3386-14T2
Similarly, we find no merit to defendant's claim that
appellate counsel was ineffective for failing to challenge the
jury instructions as to accomplice liability on appeal.
Even though defendant was never charged with conspiracy,
defense counsel requested that the trial judge instruct the jury
that defendant could not be convicted of felony murder if the
jury found she was an accomplice to the robbery predicated on
conspiracy alone. The judge declined to give the requested
charge, but agreed to give an instruction based on the model
charge for accomplice liability without reference to the word
"conspiracy."
During closing arguments, the prosecutor remarked:
[Turner] said after he got the money, it would
be half and half. He was going to take the
money, he was going to share in the proceeds.
That is a conspiracy; she is an accomplice.
They're going to share in the loot they were
going to get from William Goldware.
As a result of this comment, defendant's counsel renewed her
request, but the court again denied the motion and gave the
following instruction based on the model charge:
A person is legally accountable for the
conduct of another person, when she is an
accomplice of such person in the commission
of an offense.
Thus, a person is an accomplice of
another person in the commission of an
offense, if[,] with the purpose of promoting
24 A-3386-14T2
or facilitating the commission of the offense,
she aids, or agrees, or attempts to aid such
person, such other person in planning or
committing the crime.
Defendant argued that this charge was misleading in light
of the prosecutor's mention of "conspiracy," and could have
influenced the jury to convict defendant of felony murder based
on that inappropriate predicate offense.
The PCR judge disagreed, noting that defendant was never
charged with conspiracy, and concluded that appellate counsel
could not have been ineffective for failing to argue that the
trial judge should have issued instructions as to an uncharged
offense. We agree.
Defendant has not shown a likelihood that the jury was so
confused that it convicted defendant of felony murder based on a
predicate offense with which she was never charged due
exclusively to a fleeting mention of conspiracy by the
prosecutor. As defendant's challenge to the jury instruction
lacked merit, it follows that appellate counsel could not have
been ineffective for failing to raise it. See Worlock, supra,
117 N.J. at 625 ("The failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of
counsel.").
25 A-3386-14T2
Defendant's remaining arguments lack sufficient merit to
warrant any further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. We remand for the limited purpose of correcting
the judgment of conviction to reflect a final charge of second-
degree robbery rather than first-degree robbery.
26 A-3386-14T2