STATE OF NEW JERSEY VS. MALIK R. SMITH (03-04-0824, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 16, 2017
• Docket: A-5001-14T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5001-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK R. SMITH,

Defendant-Appellant. __________________________

Submitted October 11, 2017 – Decided November 16, 2017

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-04-0824.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a May 21, 2015 order of the court

denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons

set forth by Judge Mark H. Sandson in his detailed written opinion.

A jury convicted defendant of a 2003 double-murder that

occurred when defendant was in the process of committing an armed

robbery in a bar. He shot and killed the bartender, who in turn

shot and killed another robber. The murder weapon was found

disassembled in defendant's girlfriend's residence. The

girlfriend testified against defendant as part of her plea

agreement. Defendant was sentenced to sixty-six and one-half

years in prison, fifty-one of the years to be served without

parole. We affirmed. State v. Smith, No. A-1539-06, (App. Div.

Jan. 9, 2009). Our Supreme Court denied defendant's petition for

certification, 205 N.J. 520 (2011). We granted the appeal of his

timely PCR application because "his PCR counsel ignored

defendant's arguments contained in his pro se PCR brief" and did

not provide the PCR judge with the complete trial transcript.

State v. Smith, No. A-4371-11 (App. Div. June 19, 2014). We

remanded to the trial court, which denied relief after oral

argument.

Defendant now appeals, raising the following issues:

POINT I: THE PCR COURT ERRED WHERE IT FOUND THE DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO THE FAILURE OF TWO JURORS TO DISCLOSE DURING VOIR DIRE THEIR PRE-TRIAL KNOWLEDGE OF THE

2 A-5001-14T4 DEFENDANT AND THE CRIME, THEREBY REQUIRING AN EVIDENTIARY HEARING.

POINT II: THE PCR COURT ERRED WHERE, WHEN DECIDING THAT THE TRIAL COURT'S EX PARTE POST- CONVICTION COMMUNICATION WITH THE JURY WAS PROCEDURALLY BARRED, IT DID NOT CONSIDER WHETHER A FUNDAMENTAL INJUSTICE RESULTED FROM THE FAILURE OF THE TWO JURORS TO DISCLOSE DURING VOIR DIRE THEIR PRETRIAL KNOWLEDGE OF THE DEFENDANT AND THE CRIME.

POINT III: THE DEFENDANT INCORPORATES HEREIN ALL OF HIS REMAINING ARGUMENTS FOR POST- CONVICTION RELIEF.

New Jersey courts follow the rule formulated by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To

show ineffective assistance a defendant must identify acts or

omissions showing unreasonable professional judgment, and then

must show that these errors had a prejudicial effect on the

conviction. State v. Fritz, 105 N.J. 42, 58 (1987). The same

standards are applied to ineffective assistance of appellate

counsel claims. State v. Harris, 181 N.J. 391, 518 (2004).

In reviewing claims of ineffective assistance of counsel,

courts apply a strong presumption that defense 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

3 A-5001-14T4 to ground a constitutional claim of inadequacy . . . ." Fritz,

supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471,

489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075

(1963), overruled in part on other grounds by, State v. Czachor,

82 N.J. 392, 402 (1980)). "The quality of counsel's performance

cannot be fairly assessed by focusing on a handful of issues while

ignoring the totality of counsel's performance in the context of

the State's evidence of defendant's guilt." State v. Castagna,

187 N.J. 293, 314 (2006). "As a general rule, strategic

miscalculations or trial mistakes are insufficient to warrant

reversal 'except in those rare instances where they are of such

magnitude as to thwart the fundamental guarantee of [a] fair

trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22,

42 (1991)). "[A]n otherwise valid conviction will not be

overturned merely because the defendant is dissatisfied with his

or her counsel's exercise of judgment during the trial." State

v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187

N.J. at 314).

Both PCR counsel, who submitted a brief, and defendant, via

a pro se brief and an undated letter to the PCR court, set forth

a wide variety of claims of ineffective assistance of trial and

appellate counsel, as well as various alleged errors committed by

the trial court. Defendant claimed he was given constitutionally

4 A-5001-14T4 ineffective assistance of trial counsel because his lawyer failed

to: 1) communicate the State's plea offer; 2) present key witnesses

on behalf of defendant or adequately cross-examine the State's

witnesses; 3) object to the absence of a Bible when the witnesses

testified; and 4) request a mistrial after the first day of

deliberations when the jury advised that it was "deadlocked."

Defendant claimed his appellate attorney was ineffective by

failing to raise the following appellate issues: 1) the trial

court allowed the State, over objection, to mischaracterize the

evidence and introduce personal expression or beliefs; 2) the

trial court should have charged the jury on the lesser included

offense of attempted robbery; 3) the trial court should have

permitted into evidence the entire transcript of the 911 call; 4)

the trial court should have dismissed the indictment because it

was based on perjured testimony; and 5) the trial court should

have dismissed the conspiracy count because the State did not

present evidence of an overt act.

Defendant repeated his claims of trial error in his undated

letter to the PCR court. PCR counsel argued to the PCR court that

the trial judge erred in: 1) having improper ex parte contact with

the jury post-verdict; 2) denying defendant a fair trial based on

two jurors failing to disclose their pre-trial knowledge of

defendant and details of the case; 3) providing erroneous jury

5 A-5001-14T4 instructions, and 4) failing to provide proper curative

instructions.

Defendant argues before us on appeal that he was entitled to

an evidentiary hearing regarding these same issues. Judge Sandson

reviewed the issues raised in detail and discussed why no issue

raised a prima facie showing meriting an evidentiary hearing. "If

the court perceives that holding an evidentiary hearing will not

aid the court's analysis of whether the defendant is entitled to

post-conviction relief . . . or that the defendant's allegations

are too vague, conclusory, or speculative to warrant an evidentiary

hearing . . . then an evidentiary hearing need not be granted."

State v. Marshall, 148 N.J. 89, 158 (1997).

The PCR judge, who was furnished with the entire trial

transcript, reviewed in detail the most significant issues raised

and we affirm on the basis of his thorough decision. With regard

to the issues raised by defendant not addressed with specificity

by the PCR judge, none had sufficient merit to require discussion

in a written opinion. R. 2:11-3(e)(2).

Affirmed.

6 A-5001-14T4