STATE OF NEW JERSEY VS. STAN BRAXTON (01-07-0505, CUMBERLAND COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 16, 2017
• Docket: A-4183-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4183-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STAN BRAXTON,

Defendant-Appellant. ___________________________

Submitted October 24, 2017 - Decided November 16, 2017

Before Judges Hoffman and Mayer.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-07-0505.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a January 12, 2016 order denying his

petition for post-conviction relief (PCR) after evidentiary hearings. On appeal, defendant maintains he received ineffective

assistance from trial counsel that deprived him of his

constitutional right to a fair trial. We disagree and affirm.

Defendant was convicted of one count of second-degree

aggravated assault, N.J.S.A. 2C:12-1b(1), and four counts of

third-degree aggravated assault, N.J.S.A. 2C:12-1b(5), resulting

from an altercation with several corrections officers while

defendant was incarcerated at South Woods State Prison. Defendant

was sentenced to a total of nine years on the charges.

At trial, defendant alleged he did not assault a corrections

officer. Rather, defendant testified that he was attacked without

cause by several corrections officers in retaliation for

defendant's filing of a harassment complaint against an officer.

According to defendant, while he was showering, officers threw his

clothes into the shower and attacked him.

The trial testimony on behalf of the prosecution offered a

different version of the events. According to prosecution

witnesses, while showering, defendant exposed himself to a female

corrections officer. Defendant also made a lewd remark directed

at the female officer via the prison's intercom system. The

prosecution claimed that the officers called to the shower area

asked defendant to exit the shower and get dressed. The

prosecution maintained that defendant refused to comply and lunged

2 A-4183-15T3 at one of the officers. Corrections Officer Stewart Richardson

attempted to intervene and was assaulted by defendant. Richardson

sustained an orbital fracture and deviated septum requiring

surgery.

Defendant's convictions and sentences were affirmed on direct

appeal. State v. Braxton, No. A-4024-04 (App. Div. May 31, 2006).

The Supreme Court denied defendant's petition for certification.

State v. Braxton, 188 N.J. 355 (2006).

Defendant filed his initial PCR petition on October 31, 2006.

On October 9, 2009, the PCR judge denied defendant’s petition

without an evidentiary hearing. Defendant appealed the denial of

his initial PCR petition. On November 2, 2011, we reversed and

remanded the matter to the PCR judge to appoint new counsel and

conduct a hearing. Following our remand, the PCR judge held

evidentiary hearings on three different dates. The PCR judge

denied defendant’s petition in a written opinion dated January 12,

2016.

The PCR judge heard testimony from Dr. Rodolfo Diaz, the

doctor who performed surgery to repair Richardson's nasal injury.

Dr. Diaz was examined as to the initial radiological report finding

no facial fractures and his own medical report finding facial

3 A-4183-15T3 fractures.1 Dr. Diaz explained the inconsistencies between the

two reports. Dr. Diaz acknowledged that the initial CAT scan

reported no fractures, but noted that a subsequent addendum by the

radiologist, viewing a different angle of the scan, confirmed the

same injuries identified in Diaz's report.

Defendant's trial counsel, Demetrius Parrish, also testified

during the evidentiary hearings. Parrish had limited recall

regarding the trial proceedings and his trial strategy. The PCR

judge concluded from Parrish's testimony that the defense trial

strategy was self-preservation, with defendant claiming he was

shielding himself against attacks by the corrections officers and

that Richardson's injury was the result of Richardson's contact

with other officers. PCR counsel asked Parrish why he did not

cross-examine Dr. Diaz about an alleged pre-existing condition

suffered by Richardson. Parrish recalled that he elected to cross-

examine Richardson on the matter rather than Dr. Diaz.

Richardson also testified during the evidentiary hearings.

He was unable to recall specific details about the incident leading

to his injury. Richardson remembered that he was injured and had

surgery to repair his nose. He also testified that the handwriting

on the first incident report form was not his, but he acknowledged

1 The radiologist prepared an addendum to his initial report which confirmed the presence of facial fractures.

4 A-4183-15T3 he signed and dated the form. The first incident report confirmed

Richardson was "struck in the eye/cheek area" but did not mention

difficulty breathing. Richardson also reviewed a second incident

report and acknowledged that the second form did not indicate he

was having difficulty breathing.

The PCR judge also heard from defendant. Defendant testified

that he was harassed by several corrections officers and introduced

into evidence his handwritten grievance regarding his harassment

complaint filed prior to the shower incident. Defendant also

introduced disciplinary complaints filed against him by different

corrections officers, including Richardson, relating to the shower

incident. According to defendant, his trial counsel failed to

cross-examine the corrections officers at trial about those

complaints and reports. Defendant also testified that he never

discussed self-defense with his trial counsel and counsel's

inclusion of such a defense during voir dire was "unethical."

Defendant further claimed that trial counsel failed to cross-

examine Dr. Diaz about Richardson's radiological scan indicating

no fractures, and failed to point out a "falsified" section of the

radiologist's addendum report because it was in a different font

type.

The PCR judge allowed defendant to submit twenty-six

additional documents into evidence in support of his PCR petition.

5 A-4183-15T3 The PCR judge also allowed defendant to reopen his direct testimony

to raise two additional issues: conspiracy between defense counsel

and the prosecutor to assert a false defense, and the withholding

of exonerating evidence by counsel. However, defendant failed to

present any evidence in support of these claims. The PCR judge

rejected defendant's unsubstantiated and convoluted theories in

support of his additional claims.

The PCR judge considered written summations from counsel and

defendant. Defendant's summation attached additional documents

not introduced during the evidentiary hearings. The PCR judge

considered defendant's additional documents despite defendant's

failure to introduce the documents into evidence during the

hearings.

In his written findings of fact and conclusions of law, the

PCR judge rejected defendant's allegation that Dr. Diaz fabricated

Richardson's facial fractures and conspired with the State to

bolster the case against defendant. The PCR judge accepted the

testimony of Dr. Diaz as credible as to differences between his

own medical report and the radiologist's reports.

On the failure to examine whether Richardson had a pre-

existing condition, the PCR judge found that was a trial strategy

decision. It was undisputed that Richardson had a deviated septum,

and trial counsel decided against examining Dr. Diaz on the issue.

6 A-4183-15T3 Instead, trial counsel elected to cross-examine Richardson on

whether he came into contact with any other corrections officers

during the shower altercation.

Similarly, the PCR judge rejected defendant's contention that

the corrections officers' reports should have been used to impeach

their trial testimony. The PCR judge found the purported

inconsistencies between the information in the officers' written

reports and their trial testimony were insignificant and that the

jury had ample opportunity to assess the credibility of the

witnesses.

Lastly, the PCR judge rejected defendant's claim that certain

evidence should have been proffered to support the theory that his

conviction was the result of a conspiracy among the corrections

officers, the surgeon who treated Richardson, the radiologist who

reviewed Richardson's radiological scan, the prosecutor, defense

counsel and the trial judge, because defendant failed to offer

evidence in support of his conspiracy theory.

On appeal, defendant contends that he was denied effective

assistance of trial counsel based upon: (1) counsel’s failure to

challenge the testimony of both Dr. Diaz and Richardson, which was

used to establish the elements of aggravated assault; (2) counsel’s

failure to object to certain hearsay testimony offered by

Richardson; and (3) counsel’s failure to request an adverse

7 A-4183-15T3 inference charge based upon the State’s loss of exculpatory

evidence.

Defendant raises the following points on appeal:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

A. COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE MEDICAL TESTIMONY PRESENTED BY OFFICER RICHARDSON [sic] WHICH WAS USED TO ESTABLISH THE ELEMENTS OF AGGRAVATED ASSAULT FOR WHICH DEFENDANT WAS CONVICTED.

B. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE HEARSAY TESTIMONY OF OFFICER RICHARDSON’S CHARACTERIZATION OF A MEDICAL OPINION REGARDING INJURIES HE CLAIMED TO HAVE SUSTAINED DURING A CONFRONTATION WITH DEFENDANT.

C. COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR AN ADVERSE INFERENCE CHARGE WITH REGARD TO THE VASELINE JAR BECAUSE IT FORECLOSED A LIKELY SUCCESSFUL DEFENSE OF RETALIATION AGAINST DEFENDANT FOR REPORTING OFFICER RICHARDSON TO HIS SUPERIORS FOR ABUSE OF AUTHORITY.

In reviewing factual findings based upon witness testimony

at a PCR evidentiary hearing, we apply a deferential standard.

State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold the

PCR court's findings that are supported by sufficient credible

evidence in the record." Ibid.

8 A-4183-15T3 To prevail on a claim of ineffective assistance of counsel,

defendant must satisfy the two-pronged Strickland test as adopted

by New Jersey in State v. Fritz, 105 N.J. 42 (1987). First, a

defendant must demonstrate that "counsel's performance 'fell below

an objective standard of reasonableness,' such that [counsel] 'was

not functioning as the "counsel" guaranteed . . . by the Sixth

Amendment.'" State v. Hess, 207 N.J. 123, 146 (2011) (quoting

Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 693 (1984)). However, a reviewing court

should not assess counsel's performance with the benefit of

hindsight. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at

2065-66, 80 L. Ed. 2d at 694-95. Second, a defendant must

demonstrate that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Hess, supra, 207 N.J. at 146 (quoting

Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068,

80 L. Ed. 2d at 698). "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v.

Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S.

at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied,

522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Defendant argues that trial counsel's examination of Dr. Diaz

was ineffective for several reasons, including trial counsel's

9 A-4183-15T3 failure to cross-examine Dr. Diaz as to his finding of facial

fractures when the radiologist found no such fractures, as well

as his failure to address the font type differences between the

radiologist's original and addendum reports. Additionally,

defendant argues that trial counsel's failure to cross-examine Dr.

Diaz on the absence of any mention of nasal injury in Richardson's

incident reports is further evidence of his counsel's

ineffectiveness. Defendant also contends that his trial counsel

was ineffective for failing to cross-examine Dr. Diaz about

Richardson's possible pre-existing nasal conditions.

We reject defendant's arguments on these grounds. The PCR

judge noted that the strategy advanced by defendant's trial counsel

was to offer evidence establishing Richardson's injuries were

caused by contact with a fellow corrections officer and not

defendant. Therefore, cross-examining Dr. Diaz on any of the

suggested issues would not have advanced the defense theory. We

concur with the PCR judge that the decision not to cross-examine

Dr. Diaz was an exercise of sound trial strategy. See State v.

Arthur, 184 N.J. 307, 332-33 (2005). The mere fact that a trial

strategy failed does not establish a constitutional claim of

inadequacy. Fritz, supra, 105 N.J. at 54.

Defendant next argues that his trial counsel's failure to

object to Richardson's hearsay testimony offering medical opinions

10 A-4183-15T3 constituted ineffective assistance of counsel. We reject this

argument as well. The trial judge sustained defense counsel's

hearsay objections to Richardson's testimony about the doctor's

diagnosis as to his medical condition. Because there was

corroborating expert medical testimony from Dr. Diaz explaining

Richardson's injuries, any hearsay that might have been heard by

the jury was harmless. See R. 2:10-2; see also State v. Macon,

57 N.J. 325, 336 (1971) (noting that an error must be capable of

producing an unjust result "sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise

might not have reached").

Defendant further argues that his trial counsel was

ineffective because he failed to request an adverse inference with

regard to a missing Vaseline jar that defendant claims was

exculpatory.2 Defendant contends the missing Vaseline jar

substantiated his claim that the corrections officers plotted

against him by claiming he used Vaseline to plan an attack, when

defendant asserts the container was actually a soap dish.

2 The original indictment relied on a Vaseline jar to support the prosecution's claim that defendant preplanned the attack on the corrections officers and used Vaseline on his body to make it difficult for the officers to restrain him. However, the prosecution subsequently lost the Vaseline jar prior to trial. Defense counsel then successfully moved to dismiss the original indictment and to suppress any mention of a Vaseline jar during the trial.

11 A-4183-15T3 According to defendant, the suppression of this evidence limited

his retaliation theory. No adverse inference charge was warranted

as all testimony with respect to Vaseline was suppressed by the

trial judge.

As for defendant's claim that his trial counsel was

ineffective in pursuing a self-defense strategy rather than a

retaliation defense, there is no support in the record for his

claim. There was only one mention of self-defense at trial in a

single voir dire question during jury selection. The record

reflects that trial counsel pursued a retaliation defense on

defendant's behalf.

Based upon the sufficient, credible evidence in the record,

defendant failed to demonstrate that his trial counsel's

performance was deficient or prejudicial.

Affirmed.

12 A-4183-15T3