NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4591-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYDEN R. WILLIAMS, a/k/a LANCE RIDDICK,
Defendant-Appellant. ___________________________
Submitted April 27, 2020 – Decided July 20, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-02-0150.
Joseph E. Krakora, Public Defender, attorney for appellant (Howard Woodley Bailey, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton Samuel Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A jury convicted defendant Bryden Robert Williams of murder and related
weapons offenses, and the judge sentenced him to a fifty-year term of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We
affirmed defendant's conviction and sentence on direct appeal. State v.
Williams, No. A-3619-09 (App. Div. March 9, 2012). The Court granted
certification and affirmed. State v. Williams, 219 N.J. 89, 102 (2014).
Defendant filed a pro se petition for post-conviction relief (PCR) that
alleged trial and appellate counsel provided ineffective assistance (IAC). PCR
counsel was assigned, and defendant subsequently filed a certification adding
that trial counsel provided ineffective assistance because he "was unable to stay
awake[.]" Defendant gave some specific examples and further asserted that
during trial he told one of the Sheriff's Officers in the courtroom about the issue.
Defendant also furnished a certification from his mother, Renee Hart, who
said she observed trial counsel "fall asleep on at least three occasions . . . on
three separate days[.]" She also saw defendant "nudge [counsel] in an attempt
to wake him up." Additionally, defendant filed a report from an investigator
who interviewed trial counsel about the allegation that he fell asleep during the
proceedings.
A-4591-17T1 2 PCR counsel filed a second brief supporting the petition. He asserted that
trial counsel was ineffective because he did not ask the judge to voir dire the
jurors about whether they noticed him sleeping during trial. Defendant now
included a certification from trial counsel, who stated that during defendant's
trial, he felt "lethargic" because of a "blood sugar issue." However, while he
possibly closed his eyes "briefly once or twice[,]" counsel did not believe he
"fell asleep or missed anything." Although changes in his diet and the loss of
weight relieved him of this lethargy, counsel described a "similar issue" in
another trial approximately one year after defendant's trial. In that criminal case,
the defendant alleged counsel had fallen asleep. The judge in that case, after
noticing that counsel had his eyes closed during the prosecutor's two-hour
summation, "allowed [counsel] to listen to the taped summation to ensure . . .
[he] didn't miss anything."
The PCR judge, Robert A. Kirsch, who was not the trial judge, heard oral
argument and ordered an evidentiary hearing "on the issue of whether
[defendant] was denied the effective assistance of counsel because of trial
counsel's purported sleeping at trial[.]" Judge Kirsch denied the petition as to
all other claims, including that counsel provided ineffective assistance by failing
to ask for a voir dire of the jurors regarding his purported sleeping during trial.
A-4591-17T1 3 The judge explained his reasons in a comprehensive, thirty-one-page written
opinion that accompanied his June 30, 2017 order (the June order).
The evidentiary hearing took place over several days, after which Judge
Kirsch detailed his factual findings and legal conclusions in another written
opinion. Defendant's sister, brother, and "longtime girlfriend" testified
regarding their observations of defense counsel's conduct and demeanor during
trial. Judge Kirsch found their testimony "seemingly earnest," although it "did
not provide sufficient evidence that counsel was inattentive at trial through
sleeping or otherwise, or was inattentive in what can be characterized as
anything beyond momentary or fleeting[.]"
Defendant testified about instances during trial where counsel fell asleep
or took "incoherent notes." According to defendant, counsel fell asleep several
times during trial. Defendant recalled one instance where counsel's phone
vibrated and, when counsel checked the notification, defendant saw a text
message from counsel's girlfriend telling him to "[w]ake up." Judge Kirsch
concluded that defendant "was uncertain of how many times he observed
counsel nodding off, and [defendant's] testimony was at times inconsistent,
confusing[,] and difficult to follow." The judge determined the allegations
"were vague and lacked specificity[,]" and, although the judge did not find
A-4591-17T1 4 defendant's testimony "intentionally deceitful, . . . his overall credibility and
accuracy [were] suspect, imprecise, and unreliable."
Trial counsel's wife, who was his girlfriend at the time of trial, testified
and acknowledged being a spectator at defendant's trial. However, she denied
ever sending her future husband a text message, as defendant claimed. Judge
Kirsch found her to be a credible witness.
Trial counsel, an experienced attorney whose practice at the time of
defendant's trial was exclusively criminal defense work, did not believe he fell
asleep during the trial or received any text message from his future wife, nor did
counsel recall being nudged by defendant to wake up. Judge Kirsch found
counsel was a "highly credible witness[,]" who "acknowledged that he might
have closed his eyes for a moment or two during the trial[,]" but had "no animus
. . . toward [defendant] and . . . was devoted to his client and sought to represent
him effectively."
Judge Kirsch discussed the two-prong test applicable to IAC claims
formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The judge also
considered those infrequent circumstances where prejudice is presumed, see,
e.g., United States v. Cronic, 466 U.S. 648, 658–59 (1984), and, in particular,
A-4591-17T1 5 the "limited circumstances[ in which] prejudice can . . . be presumed when a
defendant's attorney falls asleep during trial[,]" see, e.g., United States v. Ragin,
820 F.3d 609, 612 (4th Cir. 2016) (holding that "a defendant is deprived of his
Sixth Amendment right to counsel when counsel sleeps during a substantial
portion of the defendant's trial").
Judge Kirsch concluded that the evidence adduced at the hearing "at
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4591-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYDEN R. WILLIAMS, a/k/a LANCE RIDDICK,
Defendant-Appellant. ___________________________
Submitted April 27, 2020 – Decided July 20, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-02-0150.
Joseph E. Krakora, Public Defender, attorney for appellant (Howard Woodley Bailey, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton Samuel Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A jury convicted defendant Bryden Robert Williams of murder and related
weapons offenses, and the judge sentenced him to a fifty-year term of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We
affirmed defendant's conviction and sentence on direct appeal. State v.
Williams, No. A-3619-09 (App. Div. March 9, 2012). The Court granted
certification and affirmed. State v. Williams, 219 N.J. 89, 102 (2014).
Defendant filed a pro se petition for post-conviction relief (PCR) that
alleged trial and appellate counsel provided ineffective assistance (IAC). PCR
counsel was assigned, and defendant subsequently filed a certification adding
that trial counsel provided ineffective assistance because he "was unable to stay
awake[.]" Defendant gave some specific examples and further asserted that
during trial he told one of the Sheriff's Officers in the courtroom about the issue.
Defendant also furnished a certification from his mother, Renee Hart, who
said she observed trial counsel "fall asleep on at least three occasions . . . on
three separate days[.]" She also saw defendant "nudge [counsel] in an attempt
to wake him up." Additionally, defendant filed a report from an investigator
who interviewed trial counsel about the allegation that he fell asleep during the
proceedings.
A-4591-17T1 2 PCR counsel filed a second brief supporting the petition. He asserted that
trial counsel was ineffective because he did not ask the judge to voir dire the
jurors about whether they noticed him sleeping during trial. Defendant now
included a certification from trial counsel, who stated that during defendant's
trial, he felt "lethargic" because of a "blood sugar issue." However, while he
possibly closed his eyes "briefly once or twice[,]" counsel did not believe he
"fell asleep or missed anything." Although changes in his diet and the loss of
weight relieved him of this lethargy, counsel described a "similar issue" in
another trial approximately one year after defendant's trial. In that criminal case,
the defendant alleged counsel had fallen asleep. The judge in that case, after
noticing that counsel had his eyes closed during the prosecutor's two-hour
summation, "allowed [counsel] to listen to the taped summation to ensure . . .
[he] didn't miss anything."
The PCR judge, Robert A. Kirsch, who was not the trial judge, heard oral
argument and ordered an evidentiary hearing "on the issue of whether
[defendant] was denied the effective assistance of counsel because of trial
counsel's purported sleeping at trial[.]" Judge Kirsch denied the petition as to
all other claims, including that counsel provided ineffective assistance by failing
to ask for a voir dire of the jurors regarding his purported sleeping during trial.
A-4591-17T1 3 The judge explained his reasons in a comprehensive, thirty-one-page written
opinion that accompanied his June 30, 2017 order (the June order).
The evidentiary hearing took place over several days, after which Judge
Kirsch detailed his factual findings and legal conclusions in another written
opinion. Defendant's sister, brother, and "longtime girlfriend" testified
regarding their observations of defense counsel's conduct and demeanor during
trial. Judge Kirsch found their testimony "seemingly earnest," although it "did
not provide sufficient evidence that counsel was inattentive at trial through
sleeping or otherwise, or was inattentive in what can be characterized as
anything beyond momentary or fleeting[.]"
Defendant testified about instances during trial where counsel fell asleep
or took "incoherent notes." According to defendant, counsel fell asleep several
times during trial. Defendant recalled one instance where counsel's phone
vibrated and, when counsel checked the notification, defendant saw a text
message from counsel's girlfriend telling him to "[w]ake up." Judge Kirsch
concluded that defendant "was uncertain of how many times he observed
counsel nodding off, and [defendant's] testimony was at times inconsistent,
confusing[,] and difficult to follow." The judge determined the allegations
"were vague and lacked specificity[,]" and, although the judge did not find
A-4591-17T1 4 defendant's testimony "intentionally deceitful, . . . his overall credibility and
accuracy [were] suspect, imprecise, and unreliable."
Trial counsel's wife, who was his girlfriend at the time of trial, testified
and acknowledged being a spectator at defendant's trial. However, she denied
ever sending her future husband a text message, as defendant claimed. Judge
Kirsch found her to be a credible witness.
Trial counsel, an experienced attorney whose practice at the time of
defendant's trial was exclusively criminal defense work, did not believe he fell
asleep during the trial or received any text message from his future wife, nor did
counsel recall being nudged by defendant to wake up. Judge Kirsch found
counsel was a "highly credible witness[,]" who "acknowledged that he might
have closed his eyes for a moment or two during the trial[,]" but had "no animus
. . . toward [defendant] and . . . was devoted to his client and sought to represent
him effectively."
Judge Kirsch discussed the two-prong test applicable to IAC claims
formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The judge also
considered those infrequent circumstances where prejudice is presumed, see,
e.g., United States v. Cronic, 466 U.S. 648, 658–59 (1984), and, in particular,
A-4591-17T1 5 the "limited circumstances[ in which] prejudice can . . . be presumed when a
defendant's attorney falls asleep during trial[,]" see, e.g., United States v. Ragin,
820 F.3d 609, 612 (4th Cir. 2016) (holding that "a defendant is deprived of his
Sixth Amendment right to counsel when counsel sleeps during a substantial
portion of the defendant's trial").
Judge Kirsch concluded that the evidence adduced at the hearing "at
most[] established that counsel may have fleetingly dozed off a handful of times
during the [seven]-day trial during non-critical portions of the trial." Judge
Kirsch extensively reviewed the trial transcripts, cited specific examples of
counsel's performance during trial and concluded that defendant failed to
demonstrate any actual prejudice occasioned by any temporary inattentiveness
by counsel. As the judge said, "A review of the trial transcript, corroborated by
[defendant's] own witnesses at the . . . hearing confirm[s] that counsel was active
and engaged at trial[,] advocating on behalf of and strategizing with
[defendant]." Judge Kirsch determined that defendant had "not established by a
preponderance of the credible evidence that counsel was ineffective pursuant to
either Cronic . . . or Strickland[.]" He entered the September 11, 2017 order (the
September order) denying defendant's PCR petition, and this appeal followed.
A-4591-17T1 6 Before us, defendant raises two points. First, he contends Judge Kirsch
erred in evaluating the evidence at the hearing and should have concluded that
trial counsel rendered ineffective assistance. The argument overlooks our
deferential standard of review in these circumstances. See, e.g., State v. Nash,
212 N.J. 518, 540 (2013) ("Our standard of review is necessarily deferential to
a PCR court's factual findings based on its review of live witness testimony. In
such circumstances[,] we will uphold the PCR court's findings that are supported
by sufficient credible evidence in the record." (citing State v. Harris, 181 N.J.
391, 415 (2004))). Judge Kirsch's factual findings are amply supported by the
record, his legal conclusions were correct, and we affirm for the reasons he
expressed in his written opinion.
Defendant's second argument is that the judge erred by denying
defendant's IAC claim that counsel rendered deficient performance by not
asking the trial judge to voir dire jurors "about [counsel's] sleeping during the
trial" without an evidentiary hearing. The argument merits limited discussion.
R. 2:11-3(e)(2).
In his written opinion supporting the June 2017 order, Judge Kirsch noted
"the absence of any case law finding trial counsel ineffective for failing to
investigate his own ineffectiveness immediately at the conclusion of trial." He
A-4591-17T1 7 concluded that any failure to voir dire the jurors "about whether they notice d
[counsel] sleeping did not constitute ineffective assistance of counsel."
We affirm now for slightly different reasons. See State v. Scott, 229 N.J.
469, 479 (2017) ("It is a long-standing principle underlying appellate review
that 'appeals are taken from orders and judgments and not from opinions . . . or
reasons given for the ultimate conclusion.'" (quoting Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001))). In light of Judge Kirsch's findings after
the hearing, it logically follows that counsel, who denied ever falling asleep and
who the judge concluded was, at most, fleetingly inattentive, did not render
deficient, prejudicial assistance by failing to ask the judge to voir dire jurors
about what they may have witnessed.
Affirmed.
A-4591-17T1 8