NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2320-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASIR SALAAM, a/k/a NASIR JAMEEL SALAAM,
Defendant-Appellant. ____________________________
Submitted May 15, 2019 – Decided July 15, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0310.
Joseph E. Krakora, Public Defender, attorney for appellant (David Anthony Gies, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Nasir Salaam appeals from the October 16, 2017 order denying
his petition for post-conviction relief on the basis of ineffective assistance of
counsel after an evidentiary hearing, following our remand for that purpose. We
affirm.
This matter stems from a 2007 gas station robbery-homicide involving
three juveniles waived to adult court: defendant, Darrick Hudson and Basir
Biggins.1 Adult co-defendants Tyler Hart and Gina McCrosson were also
charged in various counts of the indictment in relation to driving the juveniles
to the gas station. When police first questioned defendant upon his arrest a day
after the murder, he denied his involvement in the incident. More than a month
later, his privately-retained counsel advised him to cooperate with the
prosecutor and provide an incriminating statement to police regarding his
involvement. In defendant's second statement, he told police that while he was
1 Defendant was charged with first-degree felony murder, N.J.S.A. 2C:11- 3(a)(3); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1; second- degree conspiracy to commit armed robbery of employees of the gas station, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of two .22 caliber revolvers for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of the two revolvers, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b); third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1); and third-degree conspiracy to distribute heroin, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5 (b)(3), and N.J.S.A. 2C:5-2. A-2320-17T3 2 asking the gas attendants for money at gun-point, his co-defendants entered the
mini-mart and fatally shot the victim.
Defendant proceeded to trial and the State introduced his second,
incriminating statement into evidence. The jury found defendant guilty of armed
robbery of the two attendants outside the mini-mart, aggravated assault of one
of the attendants who defendant admitted shooting, weapons offenses, hindering
apprehension, and conspiracy to distribute heroin. The jury was unable to reach
a unanimous verdict on the robbery and felony murder counts relating to the
deceased victim inside the mini-mart. The court declared a mistrial on those
remaining charges. Before proceeding to trial for a second time, defendant pled
guilty to felony murder and received a sentence of forty years in prison with a
thirty-year period of parole ineligibility on all convictions.
When defendant appealed the denial of his motion for post-conviction
relief (PCR), because defense counsel had "secured no plea agreement nor any
agreement not to use the statement against defendant," State v. Salaam, No. A-
3989-14 (App. Div. Jan. 31, 2017) (slip op. at 2), we reversed and remanded:
for a hearing to resolve conflicting testimony given by defense counsel, defendant, and defendant's mother regarding defense counsel's representations to defendant about a plea agreement or potential agreement prior to the statement. Regardless of the nature of defense counsel's advice, the court must also
A-2320-17T3 3 determine at the hearing whether counsel's production of his juvenile client to give a self-incriminating statement under these circumstances – after conferring only with a co-defendant's counsel and prior to the completion of discovery – was a fundamental deprivation of counsel pursuant to United States v. Cronic, 466 U.S. 648, 661 (1984).
[Ibid.]
After a full evidentiary hearing, the PCR court again denied the petition.
Defendant testified his counsel represented to him and his family that a plea
agreement had been secured prior to defendant giving his second statement, and
argued that advising defendant to provide an incriminating statement without a
secured plea deal constituted ineffective assistance of counsel. The PCR court
found defense counsel made no representation to defendant or his family that he
had secured a promise from the State before defendant provided his second
statement, and in light of the overwhelming evidence against him, it was not
constitutionally deficient trial strategy to cooperate with the prosecutor and
provide the second statement. The PCR court found defense counsel sought
information from a co-defendant's counsel, who was experienced with the local
prosecutor's office and thought defendant's cooperation would facilitate a plea
offer in the "high teens, low twenties." Unexpectedly, the Attorney General's
Office (AG) took over the prosecution. Defense counsel testified he had never
A-2320-17T3 4 before or after presented a client to the police to give a statement without a plea
offer in place.
Defendant raises the following issues on appeal:
POINT I: IN A CONSTITUTIONAL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, PREJUDICE IS PRESUMED WHERE AN ATTORNEY ADVISES AN ACCUSED TO CONFESS DURING THE EARLY STAGES OF A FELONY MURDER/ROBBERY INVESTIGATION BEFORE REVIEWING ALL DISCOVERY BASED ON THE REPRESENTATIONS WHICH THE ATTORNEY MISUNDERSTOOD AS TRUTHFUL OF A CO- DEFENDANT'S COUNSEL WITH WHOM HE HAD A PROFESSIONAL RELATIONSHIP
POINT II: A REASONABLE PROBABILITY EXISTS THAT THE JUVENILE DEFENDANT WAS PREJUDICED BY HIS TRIAL ATTORNEY'S DEFICIENT PERFORMANCE WHERE, AGREEING TO MAKE A SELF-INCRIMINATING STATEMENT TO THE PROSECUTOR, HE RELIED ON THE ATTORNEY'S ADVICE WHICH WAS BASED ON THE INACCURATE REPRESENTATIONS OF A CO- DEFENDANT'S COUNSEL.
POINT III: IN SUMMARY FASHION, DEFENDANT INCORPORATES THE REST OF HIS ARGUMENTS MADE TO THE PCR COURT.
Our prior decisions on direct appeal and the first PCR appeal set forth the
facts revealed at trial, which we need not repeat here. State v. Salaam, No. A-
2288-10 (App. Div. Aug. 2, 2013) (slip op. at 2-6); Salaam, No. A-3989-14 (slip
A-2320-17T3 5 op. at 3-7). When defendant was charged with felony murder, his retained
counsel "spoke to a co-defendant's attorney who suggested that the prosecutor
would not offer a plea agreement to any defendant who had not given a
statement." Salaam, No. A-2288-10 (slip op. at 5).
Defense counsel brought defendant to the Atlantic County Prosecutor's
Office (ACPO), where he waived his Miranda2 rights, and confessed to his
involvement in the incident, but denied shooting the deceased victim. After this
second statement, DNA results showed that the deceased victim's blood was on
defendant's shirt.
The AG took over the prosecution from the ACPO when one of co-
defendant's counsel became the Atlantic County Prosecutor. The AG offered
defendant thirty years in prison with thirty years of parole ineligibility in
exchange for a plea to felony murder, which defendant refused. The AG then
reduced the exposure to twenty-five years in prison in exchange for a guilty plea
to aggravated manslaughter. Defendant refused the more lenient offer.
Defendant requested that defense counsel move to suppress his second
statement, but counsel declined because it was "the only thing that [got
defendant] away from the felony murder." Defense counsel thought that because
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2320-17T3 6 defendant's second statement indicated the shooter had blood on his hand after
the robbery, it could explain why the DNA test later revealed the deceased
victim's blood on defendant's shirt.
Prior to the start of a second trial, defendant moved pro se to suppress his
statement and discharge counsel. The court conducted a testimonial hearing,
where defendant was represented by new counsel, after which it denied the
motion to suppress the second statement. Defendant then pled guilty, preserving
his right to appeal.
After our remand, the PCR testimonial hearing revealed the following
facts. When defendant retained trial defense counsel to represent him on felony
murder charges, counsel had been practicing law since 1993. Although his law
practice was in Philadelphia, he had experience handling criminal cases,
including at least three homicide trials, in Atlantic County. Counsel received
discovery from the State, including police reports stating co-defendants had
already identified defendant as one of the robbers armed with a gun. All other
co-defendants had already given statements to law enforcement. McCrosson,
Hart and Biggins gave statements implicating both Hudson and defendant.
Hudson said they had arrived at the gas station "with guns," Biggins went inside
the mini-mart and shot the victim, killing him, while defendant stayed outside
A-2320-17T3 7 of the mini-mart. Biggins said he was never at the gas station, defendant and
Hudson "came back to [his] house later and indicated that they had been
involved in a robbery," and defendant had a weapon. Hart and McCrosson said
they had "picked [the others] up and taken them to the gas station" but had "no
idea what happened at the station." Police also had statements from individuals
who heard defendant admit his involvement in the robbery. Police were in the
process of examining defendant's clothing for DNA.
Counsel reached out to Hudson's counsel, an experienced criminal defense
attorney who primarily handled cases in Atlantic County and was familiar with
how the ACPO operated. This co-defendant, who unlike defendant, had given
an initial incriminating statement, had also given a second statement to police
without an agreement from the State on the advice of his attorney. Both lawyers
believed their two clients' versions of events were consistent. Co-counsel said
someone in defendant's position who cooperated with the police may face a
prison sentence in the "high teens, low twenties." This estimate was based on
the assumption that the two juveniles were providing truthful information and
that defendant did not kill anyone.
According to a former Chief Assistant Prosecutor, who was a legal advisor
to the ACPO's Major Crimes Unit at the time, the ACPO's practice was to make
A-2320-17T3 8 no plea offers in the early stages of an investigation. If information was given,
the ACPO would first seek to verify truthfulness by corroboration with physical
evidence or witness statements. In her twenty-eight years of experience as a
prosecutor, "plenty" of experienced criminal defense attorneys brought their
clients in without plea offers in homicide cases "to give a statement believing
that it would help their client in the long run." If truthful information was
provided, the ACPO would make the defendant's early cooperation known to the
judge at sentencing, and often the judge imposed a more lenient sentence than
the maximum term offered by the ACPO.
Counsel met with defendant twice before the second statement. Counsel
was aware defendant was a juvenile with no criminal record. His strategy was
for defendant to give his version of the facts to police in the hopes of a favorable
plea deal. If that did not resolve the case, counsel strategized that the statement
would still be beneficial at trial because it would "get [defendant's] story . . . out
there" without leaving him open to being "tripped up" with cross-examination.
Counsel believed he could argue the victim's death was not "within the fair
contemplation" of defendant because he was outside when the victim was shot
in the mini-mart. Counsel discussed this strategy, as well as the evidence
A-2320-17T3 9 already obtained by police, with defendant. He stressed the importance of
defendant being truthful if he were to give a second statement.
The ACPO made no agreement before defendant gave his second
statement. Counsel indicated to defendant his belief that he could receive a
sentence in the nineteen to twenty year range for his truthful cooperation.
Counsel testified that he did not indicate to defendant or his family that his belief
was based on a discussion with a prosecutor. After counsel reviewed discovery
and plea possibilities with defendant, defendant agreed with counsel's strategy.
Defendant's impression was that counsel would be able to secure a deal
for a prison sentence of "no more than [twenty years], low teens," and that "t he
deal was firmed up" because counsel "wasn't using the words possibility
anymore." Similarly, his mother testified: "[Counsel] told him it was a plea
bargain, a plea on the table, and in order for him to get the plea, he had to give
a statement."
A family friend testified that during a meeting with counsel before
defendant's trial at which the friend, defendant's mother and defendant's father
were present: "one of the questions I had . . . was why did the attorney have him
go in and give an incriminating statement[,] and [counsel] said that there was a
A-2320-17T3 10 deal on the table." The State successfully objected to this testimony on hearsay
grounds.
The PCR remand court found that defense counsel did not tell defendant
that he would receive a specific plea offer in exchange for his second statement.
The court found counsel and the former Chief Assistant Prosecutor credible,
while he found defendant, defendant's mother, and the family friend not
credible. The court concluded defendant failed to show counsel was ineffective
under either the Strickland v. Washington, 466 U.S. 668, 687 (1984) or United
States v. Cronic, 466 U.S. 648, 658-59 (1984) standards:
The [c]ourt finds that [counsel] was faced with a young defendant who had no criminal history, yet was charged with felony murder. Even in the early stages the proofs against the [p]etitioner were overwhelming as the co- defendants had all incriminated the [p]etitioner as being a participant who had a gun. The prospect of DNA evidence was significant in the case. . . . [Counsel] reached out to co-counsel, found out that his client was already cooperating, and learned that the ACPO was interested in gathering more information about the shooting. Co-counsel . . . informed [counsel] that with cooperation he could negotiate a sentence of nineteen to twenty years.
This information taken, together with [counsel's] strategy to gain favor with the ACPO, led [counsel], an experienced criminal defense attorney, to make the strategic decision to have his client cooperate with law enforcement in efforts to have a favorable plea offer extended at a later date. [Counsel] did not promise the
A-2320-17T3 11 [p]etitioner a specific outcome for his cooperation or for providing a statement. This strategy, albeit one with a high risk/high reward potential, was not so likely to prejudice the accused that it is tantamount to a complete denial of counsel. . . .
[T]he [p]etitioner was not prejudiced by his statement. . . . Given the facts and strong evidence of the case, it would not have been sound trial strategy to argue that the [p]etitioner was not at the scene of the murder nor that he was uninvolved. The evidence of involvement in the robbery and gun possession was overwhelming. Moreover, [counsel's] strategy choices appeared to have some success for his client since the jury was unable to reach a verdict as to the felony murder charge.
"In reviewing a PCR court's factual findings based on live testimony, an
appellate court applies a deferential standard; it 'will uphold the PCR court's
findings that are supported by sufficient credible evidence in the record.'" State
v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518, 540
(2013)). A reviewing court will grant deference to the trial judge's firsthand
assessment of witness credibility. Ibid. However, a PCR court's interpretation
of the law is reviewed de novo. Ibid.
I.
Defendant argues this matter presents a case where prejudice should be
presumed under Cronic because defense counsel "relied on the representation of
a co-defendant's attorney to advise defendant to confess before discovery was
A-2320-17T3 12 complete and without having any discussions with the prosecutor about securing
some form of offer, a course he never before or has since recommended to a
client." Moreover, defendant argues there was a conflict of interest because
counsel's "prior professional relationship with [co-defendant]'s counsel
compromised his undivided loyalty to defendant," and the resulting prejudice
could have been avoided had counsel spoken to the prosecutor directly, citing
State v. Cottle, 194 N.J. 449, 452 (2008) (holding a conflict existed where both
the defendant and his defense counsel were under indictment in the same county
and finding a presumption of prejudice where defense counsel failed to disclose
the conflict).
Prejudice is presumed in limited circumstances. Cronic, 466 U.S. at 658-
59.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308[, 415] (1974), because the petitioner had been "denied the right of effective cross-examination" which "'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'"
A-2320-17T3 13 [Ibid.]
Moreover, if a defendant knowingly "agreed in advance with defense counsel's
trial strategy, then defense counsel's conduct was not plainly ineffective." State
v. Castagna, 187 N.J. 293, 316 (2006).
The presumption of prejudice is not appropriate here because counsel
advised defendant based on a strategy that, while risky, provided evidence
separating defendant from the murder, and was calculated to result in a more
favorable plea offer, which is not tantamount to "a complete denial of counsel."
Cronic, 466 U.S. at 659. The PCR court made credibility findings regarding
defense counsel's testimony, finding he advised defendant to give a second
statement as part of a strategy to gain favor with the ACPO and the sentencing
judge, and additionally found defendant agreed to the strategy. See Castagna,
187 N.J. at 316. No evidence of a conflict between defense counsel was
presented. Defense counsel's reaching out to co-counsel does not present a
conflict of interest; therefore the nondisclosure of that conversation does not
give rise to a presumption of prejudice. See, e.g., Cottle, 194 N.J. at 452.
Consistent with the PCR remand court's findings in its comprehensive
opinion, nothing suggests counsel's communication with co-defendant's counsel
compromised defendant's best interests.
A-2320-17T3 14 II.
Defendant argues that even if we find no presumption of prejudice,
counsel's conduct constitutes ineffective assistance of counsel under Strickland
and State v. Fritz, 105 N.J. 42, 52 (1987), because he "advised defendant to
confess without first securing some form of protection," and the "resulting
prejudice of the introduction of a confession at trial" was "the lynchpin of the
State's success in securing a conviction and later a guilty plea." Defendant
emphasizes counsel developed a strategy without "full knowledge of the facts"
because the DNA result was not yet known.
To establish ineffective assistance of counsel, a defendant must show (1)
counsel's performance was so deficient that he or she was "not functioning as
the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2)
prejudice to the defense. Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at
52. There is a "strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 689).
Regarding the first prong, the court must "fairly assess the reasonableness
of an attorney's performance by 'eliminat[ing] distorting effects of hindsight,
. . . reconstruct[ing] the circumstances of counsel's challenged conduct, and
A-2320-17T3 15 . . . evaluat[ing] the conduct from counsel's perspective at the ti me.'" State v.
Petrozelli, 351 N.J. Super. 14, 22 (2002) (alterations in original) (quoting
Strategic mistakes are generally 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." Castagna, 187 N.J. at 314-15 (alteration
in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). In Castagna,
our Supreme Court determined defense counsel's opening statement in which he
acknowledged his client's guilt of lesser-included offenses did not constitute
ineffective assistance of counsel. Id. at 316.
The PCR court found credible counsel's testimony that he did not
represent to defendant or his family that defendant would receive a specific plea
offer in exchange for a statement. Defendant's second statement not only
provided information to the State regarding a co-defendant's involvement in the
incident, but also mitigated defendant's own involvement in the actual killing.
Counsel's strategy to gain favor with the ACPO based on information gathered
from an attorney experienced with that office, in order to negotiate a favor able
plea deal, although risky, "falls within the wide range of reasonable professional
assistance." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 689).
A-2320-17T3 16 Regarding the second prong, a defendant has the burden to prove "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 694). In the context of guilty pleas, the second prong is
modified to require "a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial." Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
Defendant fails to prove that he was prejudiced by counsel's assistance
because defendant does not demonstrate a reasonable probability that, but for
counsel's advice, the result would have been different, nor does defendant offer
an alternative strategy counsel could have pursued that would have had a
reasonable probability of a more favorable outcome. Each co-defendant had
provided statements placing defendant at the scene with a gun. Defendant's
second statement allowed counsel to present a more favorable version of events
to the jury without subjecting defendant to cross-examination. If counsel had
not advised defendant to cooperate, the overwhelming evidence against
defendant might well have led the jury to believe defendant was more closely
connected to the murder than his second statement suggested. See Fritz, 105
N.J. at 52.
A-2320-17T3 17 The PCR remand court observed: "[Counsel's] strategy choices appeared
to have some success for his client since the jury was unable to reach a verdict
as to the felony murder charge." See Castagna, 187 N.J. at 316 (noting defense
counsel's high-risk strategy "[led] to a not guilty verdict of the most serious
offense"). Defendant fails to show "a reasonable probability" that but for
counsel's advice, defendant would not have pled guilty after the jury could not
reach a verdict on all charges. Defendant's second statement may well have
contributed to the jury's inability to convict defendant of felony murder .
III.
In his third point on appeal, defendant first argues the PCR court erred by
barring the friend's testimony that counsel said "there was a deal on the table."
Evidence determinations rest "in the sound discretion of the trial court." State
v. Willis, 225 N.J. 85, 96 (2016). "For a hearsay error to mandate reversal, '[t]he
possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable
doubt as to whether the error led the [factfinder] to a result it otherwise might
not have reached.'" State v. Hightower, 120 N.J. 378, 410 (1990) (alterations in
original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
Hearsay is "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
A-2320-17T3 18 matter asserted." N.J.R.E. 801(c). We do not view this testimony as hearsay,
as the issue was whether the lawyer said the ACPO had made a plea offer, and
not whether the State in fact made such an offer. The out of court statement was
thus not proffered for "the truth of the matter asserted."
Defendant's mother and defendant both testified that counsel had told
them a plea deal was on the table. The court did not find the testimony of
defendant or his mother credible. The court found the friend's testimony overall
"lacked credibility entirely." Thus, if his testimony concerning the attorney's
representation had been admitted, it would not have affected the outcome of the
hearing. The court found counsel's representation that he did not say he had
secured a plea deal credible, a credibility finding properly within the trial court's
discretion. The exclusion of the friend's testimony was harmless.
Second, defendant briefly states "the court-ordered consolidation of his
PCR evidentiary hearing with his co-defendant's was prejudicial." Defendant
did not raise this argument during the hearing, and does not provide argument
or supporting case law on appeal. The PCR court's decision for a joint hearing
was not improper. See State v. Weaver, 219 N.J. 131, 148 (2014) (holding that
a joint proceeding is preferable in the interest of judicial economy and accuracy
where two defendants are alleged to have participated in the same transaction ).
A-2320-17T3 19 Finally, defendant briefly states that he "continues to maintain that his
trial attorney was constitutionally ineffective" by not moving to suppress
defendant's second statement prior to trial. A suppression hearing was held after
the trial and before defendant pled guilty, after which the court found the second
statement admissible. Thus the failure to seek such a hearing before trial was of
no moment. See State v. Love, 233 N.J. Super. 38, 45 (App. Div. 1989) (finding
the first prong of Fritz was not met where it was "quite apparent . . . that a motion
made by defense counsel on the theory now advanced on appeal had no real
chance of success").
The State did not claim that defendant killed anyone during the robbery.
A State investigator from the ballistics unit testified as an expert at the felony
murder trial that the two guns recovered by police, which included the gun
defendant admitted using, did not match the bullets that struck the deceased
victim. Although defendant's ultimate sentence was considerably more severe
than that of his co-defendants, Salaam, No. A-3989-14, slip op. at 11, defendant
did not demonstrate that he received ineffective assistance of counsel.
Defendant's fellow juvenile co-defendant, Hudson, who did not proceed
to trial, received a lengthier sentence than the other co-defendants: a sentence
of twenty-five years in prison with eighty-five percent parole ineligibility.
A-2320-17T3 20 Defendant was the only individual who chose to go to trial, and he received a
sentence substantially longer than that of any of his co-defendants and
significantly more severe than the twenty-five years offered by the State prior
to trial. He is serving a sentence of forty years with thirty years of parole
ineligibility. We nevertheless affirm because this seeming sentencing inequity
is not attributable to ineffective assistance of counsel.
Affirmed.
A-2320-17T3 21