STATE OF NEW JERSEY VS. KENNETH BACON-VAUGHTERSÂ (09-07-1467, MONMOUTH COUNTY AND STATEWIDE)
A-1754-15T3
| N.J. Super. Ct. App. Div. | Sep 15, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1754-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH BACON-VAUGHTERS,
Defendant-Appellant.
________________________________
Submitted September 11, 2017 – Decided September 15, 2017
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
09-07-1467.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Kenneth Bacon-Vaughters appeals the trial court's
denial of his petition for post-conviction relief ("PCR"). We
affirm.
At a jury trial held over nine days in March 2011, defendant
was found guilty of felony murder, N.J.S.A. 2C:11-3(a)(3),
robbery, N.J.S.A. 2C:15-1, conspiracy to commit robbery, N.J.S.A.
2C:5-2 and 2C:15-1, and possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4. He was sentenced for those offenses
to a forty-year term of imprisonment, subject to a period of parole
ineligibility mandated under the No Early Release Act ("NERA"),
N.J.S.A. 2C:43-7.2.
On his prior unsuccessful direct appeal, defendant raised the
following issues:
POINT I
THE COURT'S REFUSAL TO CHARGE THE STATUTORY
AFFIRMATIVE DEFENSE TO FELONY MURDER DEPRIVED
THE DEFENDANT OF THE RIGHT TO PRESENT A
DEFENSE, DUE PROCESS AND A FAIR TRIAL.
POINT II
THE CHARGES AS A WHOLE WERE DEFECTIVE BECAUSE
THE COURT FAILED TO INSTRUCT THE JURY ON THE
ELEMENTS OF CRIMINAL ATTEMPT IN A FACT PATTERN
WHERE THE SUBSTANTIVE OFFENSE WAS NEVER
COMPLETED (Not raised below).
POINT III
THE DEFENDANT'S MARCH 12 STATEMENT SHOULD HAVE
BEEN SUPPRESSED BECAUSE DETECTIVES CONTINUED
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TO QUESTION THE DEFENDANT AFTER HE REQUESTED
AN ATTORNEY.
POINT IV
THE COURT ERRED IN ADMITTING THE VICTIM'S
STATEMENT, "KENNY MIKE SHOT ME," BECAUSE IT
WAS UNTRUE AND UNDULY PREJUDICIAL. FURTHER,
THE INSTRUCTION LIMITING ITS USE FAILED TO
NEUTRALIZE THE PREJUDICE.
A. THE COURT ERRED IN ADMITTING THE
STATEMENT BECAUSE ITS PROBATIVE VALUE WAS
OUTWEIGHED BY ITS PREJUDICE.
B. THE LIMITING INSTRUCTION WAS
MISLEADING AND FAILED TO NEUTRALIZE THE
PREJUDICE.
POINT V
THE DEFENDANT'S SENTENCE OF 40 YEARS, WITH AN
85% PAROLE BAR, WAS MANIFESTLY EXCESSIVE.
PRO SE POINT I
THE LOWER COURT ERRED WHEN IT DID NOT ADDRESS
APPELLANT'S CLAIMS OF THE FAILURE OF THE
POLICE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT
TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL
OF COUNSEL AND SEPARATELY, INEFFECTIVE
ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF
THE FIFTH, AND SIXTH, AMENDMENTS OF THE UNITED
STATES CONSTITUTION.
We found these contentions to lack merit and affirmed
defendant's convictions and sentence. State v. Bacon-Vaughters,
No. A-583-11 (App. Div. Feb. 25, 2013). The Supreme Court denied
defendant's petition for certification. 216 N.J. 5 (2013).
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In his ensuing PCR petition, defendant alleged that his trial
counsel was ineffective in several respects, thereby depriving him
of his constitutional rights. Defendant further asserted that a
"pattern of cumulative error" at trial deprived him of his right
to a fair trial.
Judge John R. Tassini, who did not preside over defendant's
jury trial, heard oral argument on the PCR application on August
25, 2015 without conducting an evidentiary hearing.
Judge Tassini denied defendant's petition. In his detailed
written statement of reasons accompanying his order, Judge Tassini
concluded that defendant has not presented a prima facie case of
ineffective assistance of counsel. He therefore found that no
evidentiary hearing was necessary.
More specifically, Judge Tassini ruled that defendant's trial
counsel during the pretrial Miranda1 suppression hearing did not
fail to adequately investigate or probe into defendant's statement
to the police. The judge found that, in fact, trial counsel had
"vigorously cross examined" witnesses at the hearing, and had
called appropriate witnesses on defendant's behalf. Despite
defendant's contrary assertions, Judge Tassini concluded there was
1
Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966).
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no evidence that his trial counsel had lied to him about his co-
defendants' cooperation with the State.
Additionally, Judge Tassini found that defendant had not made
a prima facie showing that his trial counsel had pressured him to
not testify on his own behalf. The judge noted in this regard
that the trial court had engaged in "extensive colloquy" with
defendant about his decision not to testify, and that there were
apparent tactical reasons for counsel to keep defendant off the
witness stand.
Lastly, Judge Tassini found that defendant's remaining
arguments complaining of procedural and evidentiary errors were
barred under Rule 3:22-4, because those issues could have been
raised on direct appeal.
On his present appeal, defendant raises the following issues
for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
OF TRIAL COUNSEL'S CONDUCT WHICH PRESSURED THE
DEFENDANT INTO NOT TESTIFYING ON HIS OWN
BEHALF AT TRIAL.
POINT II
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THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
OF COUNSEL'S ASSURANCE HE WOULD BE ENTITLED
TO A REVERSAL ON APPEAL IN THE EVENT HE WAS
CONVICTED AT TRIAL BASED UPON THE RULING MADE
IN CONJUNCTION WITH THE MIRANDA HEARING, AS A
RESULT OF WHICH HE DID NOT CONSIDER ANY PLEA
RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL,
SUBSEQUENTLY RECEIVING A SENTENCE
SIGNIFICANTLY GREATER THAN THAT EMBODIED IN
THE PROPOSED PLEA OFFER.
Defendant also raises the following arguments in a pro se
supplemental brief, which are partly duplicative of those in his
present counsel's brief:
SUPPLEMENTAL POINT I
TRIAL JUDGE ABUSED HIS DISCRETION BY FAILING
TO CHARGE THE AFFIRMATIVE DEFENSE TO FELONY
MURDER [UNDER N.J.S.A. 2C:11-3(a)(3)] SUA
SPONTE.
SUPPLEMENTAL POINT II
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
CALL DETECTIVE NELSON TO THE STAND AT THE
MIRANDA HEARING.
Having considered these points in light of the record and the
applicable law, we affirm the denial of the PCR petition,
substantially for the sound reasons set forth in Judge Tassini's
lengthy written decision. We add only a few amplifying comments.
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The PCR court here applied correct principles of law in
evaluating defendant's claims of ineffective assistance of
counsel. Those principles instruct that to establish a deprivation
of the right to counsel, a convicted defendant must satisfy the
two-part test enunciated in Strickland v. Washington, 466 U.S.
668, 687,104 S. Ct. 2052
, 2064,80 L. Ed. 2d 674
, 693 (1984) by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense.Id. at 687
,104 S. Ct. at 2064
,80 L. Ed. 2d at 693
; see also State v. Fritz,105 N.J. 42
, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a
strong presumption that a defendant's trial counsel "rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, supra,
466 U.S. at 690,104 S. Ct. at 2066
,80 L. Ed. 2d at 695
. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz,supra,
105 N.J. at 42, 54
(1987) (quoting State v. Williams,39 N.J. 471
, 489 (1963), cert. denied,374 U.S. 855
,83 S. Ct. 1924
,10 L. Ed. 2d 1075
(1963), overruled on other grounds by, State v. Czachor,82 N.J. 392
(1980)). The PCR court reasonably concluded that
defendant failed to establish these elements here. Moreover,
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defendant failed to present a viable prima facie case of
ineffectiveness that would warrant an evidentiary hearing. State
v. Preciose, 129 N.J. 451, 462-63 (1992).
We specifically concur with the PCR court's rejection of
defendant's claim that his trial attorney was ineffective because
she supposedly "demanded" that he waive his right to testify. We
do so for several reasons. First, the allegation is set forth as
a "bald assertion" within an unsigned certification, contrary to
the verified or sworn form of statement that is required by Rule
3:22-8 and Rule 3:22-10(c). See also State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied,162 N.J. 199
(1999).
Second, the allegation does not overcome the lengthy colloquy on
the record conducted by the trial judge, at which defendant's
right to testify was extensively discussed. Third, trial counsel
had a reasonable tactical basis to advise defendant not to take
the witness stand. Doing so would have opened the door to the
State using defendant's pretrial factual proffer against him,
thereby undermining the defense trial theory that his inculpatory
statements to the police were unreliable.
We also uphold Judge Tassini's rejection of defendant's claim
that he would have pled guilty if his trial attorney had not been
ineffective in her advice to pursue the Miranda issue. Defendant
has not set forth with particularity how he was misled, what his
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trial attorney said, and when the State's alleged twenty-year plea
offer was communicated. It is also sheer speculation, in
retrospect, to presume that defendant would have accepted a twenty-
year plea offer if the State denied him an opportunity to enter
into a conditional guilty plea.
We likewise find no merit in defendant's other contentions,
including those in his supplemental pro se brief, raising issues
that either were already decided on direct appeal or could have
been. See R. 3:22-4 and R. 3:22-5. See also R. 2:11-3(e)(1)(E).
Affirmed.
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