SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 15, 2005 -- Decided July 19, 2005
SKILLMAN, P. J.A.D., (temporarily assigned), writing for a majority of the Court.
This is an appeal from the denial of a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel in the defense of a criminal prosecution for a sale of cocaine.
A jury found Michael Arthur guilty of various offenses involving cocaine, among them
the distribution of cocaine within 500 feet of a public park and possession
of cocaine within 500 feet of a public park with the intent to
distribute. The trial court sentenced Arthur to concurrent fifteen-year terms of imprisonment, with
five years of parole ineligibility. The Appellate Division affirmed the conviction and sentence.
This Court denied Arthur’s petition for certification.
Arthur filed a petition for post-conviction relief based on the alleged ineffective assistance
provided by his trial counsel, which was supported by affidavits of a Robert
Jackson and three other potential witnesses whom counsel did not call at Arthur’s
trial. Judge Barisonek, who also was the trial judge, conducted a two-day evidentiary
hearing in which Jackson, Arthur, Arthur’s brother, Arthur’s fiancée Crystal Ross and defense
counsel all testified.
At the hearing on Arthur’s petition for post-conviction relief, Robert Jackson testified that
Arthur brought him to the courthouse on the first day of the trial
and that he told Arthur’s lawyer that he was the one who sold
drugs to a woman named Crittenden. According to Jackson, he also told an
investigator from the prosecutor’s office that he was the one who sold drugs
to Crittenden. On cross-examination, Jackson was confronted by the investigator’s notes, signed by
Jackson, which did not include any statement that Jackson had sold drugs to
Crittenden. Jackson also testified that on the second day of trial, defense counsel
pulled him into the staircase and told him to take off, and that
he then left the courthouse. Arthur’s brother also testified that defense counsel came
outside to the hall next to the courtroom in a rush and told
him to get Jackson out of here.
Defense counsel gave the following account of his interview of Jackson. Originally, Jackson
looked like an excellent witness because he was able to give the defense
what it needed to establish that he was the seller. However, he changed
his story. When he learned that he was going to be a suspect,
he said he wasn’t the seller but that he was there and knew
that Michael Arthur didn’t sell. Defense counsel further explained that he didn’t know
what Jackson was going to say and that was something he didn’t want
to risk. Defense counsel testified that he was pleased with Crittenden’s testimony and
thought they were going to get a not guilty verdict based on her
testimony. In addition, he testified that Crittenden told him that Arthur had been
selling drugs that day, but Jackson was the one who make the sale
to her. On cross-examination, defense counsel indicated that he suggested Jackson leave the
courthouse during the trial because he was concerned Jackson would be arrested and
not because he had made a strategic decision not to call Jackson as
a defense witness and wanted to prevent the State from calling him as
a rebuttal witness. Defense counsel also testified that he made a tactical decision
not to call Arthur’s brother as a trial witness and that he was
unable to call Arthur’s two other proposed witnesses, Crystal Ross and Danielle Tomlison,
because Arthur did not bring them to the courthouse. Judge Barisonek denied the
petition. The Appellate Division affirmed the denial.
This Court granted Arthur’s petition for certification, limited to the issue of whether
he received ineffective assistance of trial counsel.
HELD: Defense counsel’s representation of his client fell within the wide range of
reasonable professional assistance to which an accused is entitled and the accused received
a fair trial; the denial of the petition for post-conviction relief is sustained.
To be entitled to a new trial based on ineffective assistance of counsel,
a defendant must make a two-part showing. First, the defendant must show that
counsel’s performance was deficient. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial. In determining whether defense counsel’s
alleged deficient performance prejudiced the defense, it is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of
the proceedings. Defendant bears the burden of showing that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. (pp. 10-12)
Judged by these standards, there is no basis for concluding that defense counsel
provided Arthur ineffective assistance in failing to call Jackson as a defense witness.
Initially, we reject Arthur’s contention that counsel failed to make a strategic decision
not to call Jackson. Judge Barisonek concluded that defense counsel’s testimony that he
did not tell Jackson to leave the courthouse was incredible and found that
counsel told Jackson to leave and get out of here because he was
going to hurt Robin Crittenden’s testimony. An appellate court must accept a trial
court’s factual finding if it is supported by sufficient credible evidence in the
record. Judge Barisonek’s finding is supported not only by the testimony of Arthur’s
brother and Jackson, but also the inherent improbability that an experienced criminal defense
attorney such as defense counsel would think his duty of loyalty to his
client was outweighed by an obligation to warn a potential defense witness that
he could be arrested. Judge Barisonek also correctly concluded that Arthur failed to
overcome the presumption that defense counsel’s strategic decision not to call Jackson as
a defense witness might be considered sound trial strategy. There was a reasonable
basis for defense counsel’s strategic decision not to call Jackson as a defense
witness because his testimony was more likely to harm than to help Arthur’s
case. This perception of the probable impact of Jackson’s testimony on the trial
was obviously shared by the prosecutor, who made her own strategic decision to
call Jackson as a rebuttal witness and strenuously urged the trial court to
delay the trial to afford her the opportunity to locate him. There also
is no basis for concluding that this strategic decision was affected by defense
counsel’s failure to conduct additional pretrial investigation. (pp. 12-18)
We reject Arthur’s argument that defense counsel’s representation was deficient in failing to
call Arthur’s brother to testify that Arthur did not sell the drugs to
Crittenden and that Jackson said he was the one who sold the drugs.
Defense counsel testified that he decided, with Arthur’s concurrence, not to call Arthur’s
brother because he believe Crittenden had been an effective witness and that Arthur’s
brother would not be a credible witness. Defense counsel also stated that he
considered calling Arthur’s brother to testify that Jackson had initially admitted selling drugs
to Crittenden but ultimately decided not to call him for that purpose. Such
testimony would have posed obvious strategic risks to the defense. (pp. 18-19)
Arthur also argues that defense counsel was ineffective in failing to visit the
area where he was alleged to have sold drugs to Crittenden, failing to
interview potential defense witnesses before trial and failing to call any defense witnesses
in addition to Crittenden at trial. There is no basis for concluding that
there is a reasonable probability the result of the trial would have been
different if defense counsel’s pretrial preparation had included a visit. In the absence
of evidence that defense counsel’s failure to interview Jackson and Arthur’s brother before
trial affected those decisions, there is no basis for concluding that this failure
constituted ineffective assistance. It is reasonable to infer that defense counsel made a
strategic decision not to call Crystal Ross as a witness. In view of
Ross’s close personal relationship to Arthur and the risk that her version of
the drug sale would conflict with Crittenden’s, there is no basis for concluding
that this decision was objectively unreasonable or that there is a likelihood Ross’s
testimony would have changed the outcome of the trial. Tomlinson was not produced
as a witness at the hearing on the petition for post-conviction relief. Consequently,
there is no evidence that she was even available to testify at the
time of Arthur’s trial and thus no foundation for concluding that the failure
to call her constituted ineffective assistance of counsel. (pp. 20-23)
In addition to the ineffective assistance of counsel claims asserted by Arthur, the
dissent contends that defense counsel was ineffective in other ways, none of which
were raised by Arthur in his petition for post-conviction relief, his arguments at
the hearing on the petition or his appellate brief. An appellate court ordinarily
will not consider issues that were not presented to the trial court and
an appellate court should be even more hesitant to raise an issue sua
sponte that the parties have not had an opportunity to address. (pp. 23-24)
We consider it necessary to comment upon the dissent’s assertion that it is
highly unusual that three individuals would be willing to come forward and offer
testimony not only exonerating a defendant, but also implicating another person in the
neighborhood and still more unusual that the person implicated would actually admit his
guilt to clear a wrongfully charged defendant. What may appear highly unusual to
appellate judges may not be so unusual in the culture of street-level drug
dealers. (pp. 25-26)
The complete trial transcript shows that defense counsel made an objectively reasonable decision
regarding his overall strategy in defending the charges against Arthur by relying primarily
upon Crittenden’s identification of Jackson as the actual seller and that he conducted
this defense in a reasonably effective manner. Defense counsel’s effort to create reasonable
doubt concerning Crawford’s identification of Arthur as the person who sold drugs to
Crittenden through Crittenden’s testimony that Jackson was the actual seller would have been
seriously undermined if Jackson had taken the stand and denied he was the
seller. Defense counsel made a reasonable strategic decision to avoid this risk by
not calling Jackson. (pp. 27-32)
This opinion should not be read to condone a defense attorney’s failure to
interview prospective defense witnesses until the day of trial. But even though defense
counsel’s pretrial preparation fell short of the professional standards to which the Public
Defender should require adherence, the purpose of the constitutional guarantees of effective assistance
of counsel is not to improve the quality of legal representation. The purpose
is simply to ensure that criminal defendants receive a fair trial. Our review
of the trial record shows that defense counsel made an objectively reasonable decision
not to call Jackson as a defense witness based on his assessment of
the effectiveness of Crittenden’s trial testimony and his justifiable concern that Jackson could
undermine Crittenden’s testimony by denying he was the one who sold her drugs.
We are satisfied that defense counsel’s representation of Arthur fell within the wide
range of reasonable professional assistance to which an accused is entitled and that
Arthur received a fair trial. (pp. 32-34)
The judgment of the Appellate Division is AFFIRMED .
JUSTICE ALBIN filing a separate, DISSENTING opinion, in which JUSTICES ZAZZALI and WALLACE
join, is of the view that counsel’s defaults amounted to errors so serious
that he was not functioning as counsel guaranteed by the Sixth Amendment and
that there is a reasonable probability that the outcome of Arthur’s trial would
have been different had his counsel engaged in reasonable preparation.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and RIVERA-SOTO join in JUDGE SKILLMAN’S opinion.
JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICES ZAZZALI and WALLACE
join. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
71 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL ARTHUR,
Defendant-Appellant.
Argued March 15, 2005 – Decided July 19, 2005
On certification to the Superior Court, Appellate Division.
Roger L. Camacho, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars,
Public Defender, attorney).
Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow,
Union County Prosecutor, attorney; Steven J. Kaflowitz, Assistant Prosecutor, on the letter in
lieu of brief).
JUDGE SKILLMAN (temporarily assigned) delivered the opinion of the Court.
This is an appeal from the denial of a petition for post-conviction relief
based on the alleged ineffective assistance of trial counsel in the defense of
a prosecution for a sale of drugs. Defendant's primary claim is that his
counsel was ineffective in failing to call as a defense witness Robert Jackson,
who initially told defense counsel that he was the one who sold the
drugs but then retracted this admission when informed he could be subject to
prosecution. We conclude that defense counsel's decision not to call Jackson was a
reasonable strategic decision because the buyer of the drugs, Robin Crittenden, testified that
Jackson was the one who sold her the drugs and defense counsel could
reasonably have believed Jackson would harm the defense case by denying Crittenden's allegation
that he was the seller. We also reject defendant's arguments that trial counsel
provided ineffective assistance by failing to visit the scene of the drug transaction
or to interview potential defense witnesses before trial and by failing to call
other witnesses who could have testified defendant did not sell drugs to Crittenden.
A jury found defendant guilty of distribution of cocaine, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); distribution of cocaine within 500 feet of a public park, in violation of N.J.S.A. 2C:35-7.1; possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and possession of cocaine within 500 feet of a public park with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The trial court granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed concurrent fifteen-year terms of imprisonment, with five years of parole ineligibility, for distribution of cocaine within 500 feet of a public park and possession of cocaine within 500 feet of a public park with the intent to distribute. The Appellate Division affirmed defendant's conviction and sentence in an unreported opinion, State v. Arthur, No. A-1892-00T4 (App. Div. Apr. 23, 2002), and this Court denied his petition for certification, 174 N.J. 545 (2002).
Defendant filed a petition for post-conviction relief based on the alleged ineffective assistance provided by his trial counsel, which was supported by affidavits of Jackson and three other potential witnesses whom counsel did not call at defendant's trial. Judge Barisonek, who also was the trial judge, conducted a two-day evidentiary hearing in which Jackson, defendant, defendant's brother James Arthur, defendant's fiancée Crystal Ross and defense counsel all testified. Based on the evidence presented at that hearing and the trial record, Judge Barisonek concluded that defendant had failed to prove his ineffective assistance claim and denied the petition.
The Appellate Division affirmed in an unreported opinion, which concluded that defense counsel had not provided ineffective assistance by failing to call Jackson as a defense witness and also rejected defendant's other arguments. This Court granted defendant's petition for certification limited to the issue of whether he received ineffective assistance of trial counsel. 182 N.J. 628 (2004). See footnote 1
Defendant's convictions were based primarily on the testimony of Andre Crawford, a detective in the Narcotics Bureau of the Plainfield Police Department. While Crawford was conducting an undercover narcotics surveillance from an undisclosed location in the late afternoon on June 23, 1998, he observed defendant place some items behind bushes located at 969 West 3rd Street in Plainfield. Defendant then got into a car that left the area for a brief period. When he returned, defendant went to the bushes, bent down to check the items he had placed there, and walked back to the street. Shortly thereafter, defendant was approached by a woman named Robin Crittenden. After defendant and Crittenden spoke briefly, defendant went to the bushes, retrieved an item, and walked back to Crittenden, who handed him money in exchange for the item. Crawford testified that he had an unobstructed view of the apparent drug transaction from a distance of less than thirty feet and that he knew defendant before observing him on this occasion.
Crawford radioed the officers in his back-up unit to come to the area. The officers arrived within a short time and immediately detained defendant and Crittenden. Because there were other people in the area, the officers brought them onto the porch of 969 West 3rd Street. Crawford confirmed by radio from his surveillance location that they were the two persons he had observed engage in an apparent drug transaction.
Crittenden said to one of the officers: "I don't have anything. What's going on here." She then dropped a vial from her hand, which was subsequently determined to contain cocaine. At this point, the officers placed defendant and Crittenden under arrest.
Crawford directed one of the officers to the bushes where he had observed defendant retrieve the item that he handed to Crittenden. The officer found a brown bag at that location, which contained a Kentucky Fried Chicken box with forty-five vials of what was subsequently determined to be cocaine. A subsequent examination of the evidence disclosed that the vial dropped by Crittenden had the same kind of white cover as forty-three of the forty-five vials found behind the bushes.
Crittenden testified on defendant's behalf that the person who sold her cocaine was not defendant but instead Robert Jackson, who resided at 969 West 3rd Street. Crittenden testified that she told Crawford and the other police officers that Jackson, not defendant, sold her the drugs but "they didn't want to hear it" and kept insisting defendant was the seller. Crittenden testified that even though she eventually named defendant as the seller when she pled guilty to charges based on her role in the transaction, she did so only because the prosecutor required her to identify defendant to get the benefit of her plea bargain.
On cross-examination, Crittenden was confronted with the parts of the plea transcript in which she identified defendant as the seller. She also acknowledged that she had three prior criminal convictions.
On redirect, defense counsel brought out that when her guilty plea was being taken, she initially identified Jackson, not defendant, as the seller. However, the judge indicated he would not accept the plea and declared a recess. According to Crittenden, she identified defendant as the seller at this point because she was scared that she would lose the benefit of her plea bargain.
After Crittenden completed her testimony, the prosecutor stated that she wanted to call Jackson as a rebuttal witness but that, after speaking with defense counsel, Jackson had "left the building" and was "nowhere to be found." The prosecutor asked the trial court to delay the trial to afford her an opportunity to locate Jackson, but the court denied the application.
At the hearing on defendant's petition for post-conviction relief, Jackson testified that defendant brought him to the courthouse on the first day of the trial and that he told defendant's trial counsel that he, not defendant, was the one who sold drugs to Crittenden. Jackson was then interviewed by an investigator from the prosecutor's office. According to Jackson, he also told this investigator that he was the one who sold drugs to Crittenden. However, on cross-examination, Jackson was confronted by the investigator's notes, signed by Jackson, which did not include any statement that Jackson had sold drugs to Crittenden. Jackson also testified that on the second day of trial defense counsel "pulled me into the staircase and told me to take off, leave," and that he then left the courthouse.
Defendant's brother, James Arthur, also testified regarding defense counsel's request to Jackson to leave the courthouse:
[Defense counsel] came outside [to the hall next to the courtroom] like in like a rush, like something had happened and told me to get him out of here, speaking of Robert Jackson, disappear. So I said I wanted to know why but I was more like thinking, well, if the lawyer said get him out of here, I think I better get him out of here. I'll find out later. I spoke to Mr. Jackson later on that day and he had told Mr. Jackson to disappear, get out of here . . . .
Defense counsel gave the following account of his interview of Jackson and assessment of Jackson's value as a defense witness:
Originally he looked like an excellent witness because he was able to give the defense what we needed essentially to establish that he was the seller. In fact I gave a proffer to the prosecutor. I even wrote it down because the prosecutor wanted to know what the proffer was. There was nothing in discovery to indicate that Robert Jackson was going to be the seller. When I interviewed him, he indicated that he was and I wrote that proffer for the prosecutor.
However, he changed his story. When he learned that he was going to
be a suspect in this, he said, oh, no, no, I wasn't the
seller. I was there. I know that Michael Arthur didn't sell and it
was at that point that he was interviewed by the Prosecutor's Office and
my understanding of what he told them, although I never saw the notes
that you just discussed, was that he basically told them that he didn't
indicate he was the seller.
Defense counsel further explained: "I didn't know what [Jackson] was going to say
and that was something I didn't want to risk."
Defense counsel also testified that he was "pleased" with Crittenden's testimony and "thought
we were going to get a not guilty based on her testimony." In
addition, he testified that Crittenden told him that defendant had been selling drugs
that day, but Jackson was the one who made the sale to her.
Defense counsel gave the following account of Jackson's departure from the courthouse:
I went out in the hallway and out of fairness to Mr. Jackson
I said you are going to be arrested. Are you going to adhere
to what you told me before that you were the seller? Otherwise, you
better take off because you are about to be arrested but it's your
call. I can't tell you what to do and at that point he
literally got out in the nick of time because the entire building was
scoured and the doors were shut downstairs and they didn't find him.
On cross-examination, defense counsel indicated that he suggested Jackson leave the courthouse because
he was concerned Jackson would be arrested rather than because he made a
strategic decision not to call Jackson as a defense witness and wanted to
prevent the State from calling him as a rebuttal witness:
I wanted to be fair to him. I felt like he was going
to stick his neck out for [defendant]. I wanted to make sure he
knew what he was getting into.
Defense counsel also testified that he made a tactical decision, in which defendant
concurred, not to call his brother, James Arthur, as a witness and that
he was unable to call defendant's two other proposed witnesses, Crystal Ross and
Danielle Tomlinson, because defendant did not bring them to the courthouse.
Judge Barisonek delivered a comprehensive oral opinion denying defendant's petition. The judge found
defense counsel's testimony that he did not tell Jackson to leave the courthouse
but instead told him to decide for himself whether to stay to be
incredible:
I don't believe [defense counsel], in terms of his testimony, and I don't
like to say this about a lawyer, but I have to be up
front. That he never told him to leave, there is absolutely no doubt
in my mind that he told this guy to leave and get out
of here because he was going to hurt Robin Crittenden's testimony.
In making this credibility finding, Judge Barisonek relied partly on James Arthur's testimony
that defense counsel told him to get Jackson out of the courthouse and
partly on defense counsel's own testimony that he made a strategic decision after
Crittenden testified to rely solely on her testimony in defending the case. Judge
Barisonek also found that defendant concurred with defense counsel's decision not to call
Jackson as a defense witness.
Claims of ineffective assistance of counsel are generally governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by this Court in interpreting the New Jersey Constitution. See State v. Allah, 170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987). To be entitled to a new trial based on ineffective assistance of counsel, a defendant must make a two-part showing:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed.
2d at 693).]
In determining whether defense counsel's representation was deficient, "'[j]udicial scrutiny . . .
must be highly deferential,' and must avoid viewing the performance under the 'distorting
effects of hindsight.'" State v. Norman,
151 N.J. 5, 37 (1997) (quoting Strickland,
supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694). Because of the inherent difficulties in evaluating a defense counsel's
tactical decisions from his or her perspective during trial, "a court must indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466
U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95
(quoting Michel v. Louisiana,
350 U.S. 91, 101,
76 S. Ct. 158, 164,
100 L. Ed. 83, 93 (1955)).
In determining whether defense counsel's alleged deficient performance prejudiced the defense, "[i]t is
not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceedings." Id. at 693, 104 S. Ct.
at 2067, 80 L. Ed.
2d at 697. Rather, defendant bears the burden
of showing that "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed.
2d at 698; see also
State v. Harris,
181 N.J. 391, 432 (2004).
Judged by these standards, there is no basis for concluding that defense counsel provided defendant ineffective assistance in failing to call Jackson as a defense witness. Initially, we reject defendant's contention that counsel failed to make a strategic decision not to call Jackson but instead allowed Jackson to make up his own mind whether to stay in the courthouse. There was sharply conflicting testimony concerning the circumstances of Jackson's departure from the courthouse. Although defense counsel testified that he "didn't know what [Jackson] was going to say and that was something [he] didn't want to risk[,]" he also testified that he did not direct Jackson to leave the courthouse but instead, "out of fairness to Mr. Jackson," told him that he was "going to be arrested" and let Jackson "make the call" whether to stay. However, Jackson testified that defense counsel "told me to take off, leave," and James Arthur testified that defense counsel "told me to get him [Jackson] out of here." Judge Barisonek concluded that defense counsel's testimony that he did not tell Jackson to leave the courthouse was incredible and found that "[counsel] told [Jackson] to leave and get out of here because he was going to hurt Robin Crittenden's testimony." An appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). Judge Barisonek's finding is supported not only by Jackson's and James Arthur's testimony but also the inherent improbability that an experienced criminal defense attorney such as defense counsel would think his duty of loyalty to his client was outweighed by an obligation to warn a potential defense witness that he could be arrested. See American Bar Association, Standards for Criminal Justice Prosecution Function and Defense Function, Standard 4-4.3 (3d ed. 1993), which indicates that if a potential defense witness gives a statement that could incriminate the witness, "[i]t is not necessary for defense counsel . . . to caution the witness concerning possible self-incrimination" because defense counsel has a duty of paramount loyalty to his or her client.
Judge Barisonek also correctly concluded that defendant failed to "overcome the presumption that, under the circumstances," defense counsel's strategic decision not to call Jackson as a defense witness "'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.2d 674-75 (quoting Michel, supra, 350 U.S. at 101, 76 S. Ct. at 164, 100 L. Ed. at 9). Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. See Roberto Aron & Jonathan L. Rosner, How to Prepare Witnesses for Trial §§ 2.02-.14 (2d ed. 1998). Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697, and a court's review of such a decision should be "highly deferential," id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
When defense counsel made the decision not to call Jackson, Crittenden already had testified for the defense that she told the police at the time of her arrest that Jackson, not Arthur, was the person who sold her drugs and that she again said Jackson was the seller at the time of her guilty plea, only identifying defendant as the seller after the trial judge stated he would reject her plea agreement if she persisted in her claim that Jackson was the true seller. Defense counsel, who had the opportunity to hear Crittenden testify, stated that he was "pleased" with her testimony and thought that defendant was likely to be acquitted based on that testimony.
When defense counsel first interviewed him, Jackson indicated he would corroborate Crittenden's identification of him as the seller, and defense counsel informed the prosecutor that Jackson would so testify. However, Jackson then retracted this admission and told defense counsel he was not the seller: "[H]e changed his story. When he learned that he was going to be a suspect in this, he said, oh, no, no, I wasn't the seller. I was there. I know that Michael Arthur didn't sell and it was at that point that he was interviewed by the Prosecutor's Office . . . ." Defense counsel's testimony that Jackson retracted his admission that he was the seller is supported by the prosecutor's representations in requesting an adjournment of the trial to afford her an opportunity to locate Jackson:
It wasn't until Counsel gave his witness list indicating that Robert Jackson initially would be the one who came in and said he was the one who sold the drugs to Miss Crittenden, and that he would be produced along with the other three witnesses for the State to talk to, then the next day when Mr. Jackson comes, Counsel says, "Oh, no, no, no, the proffer was not he was the one selling the drugs he was just there and she was coming to visit him," or something to that effect.
Thus, when defense counsel made the decision not to call Jackson as a defense witness, it was reasonable for him to assume that Jackson would testify, consistent with his second statement to defense counsel, that he did not sell drugs to Crittenden, thus directly contradicting Crittenden's trial testimony. See footnote 2
Under these circumstances, there was a reasonable basis for defense counsel's strategic decision not to call Jackson as a defense witness because his testimony was more likely to harm than to help defendant's case. This perception of the probable impact of Jackson's testimony on the trial was obviously shared by the prosecutor, who made her own strategic decision to call Jackson as a rebuttal witness and strenuously urged the trial court to delay the trial to afford her the opportunity to locate him.
We reject defendant's argument that defense counsel's decision not to call Jackson as a defense witness is not entitled to the "extreme deference" ordinarily extended to strategic decisions of counsel, Fritz, supra, 105 N.J. at 52, because defense counsel failed to interview Jackson or conduct other investigation before trial. The record of the hearing on the petition for post-conviction relief indicates that defense counsel's decision not to call Jackson as a defense witness was based on his interviews of Jackson, his understanding of what Jackson told the prosecutor's investigator, and his assessment of the effectiveness of Crittenden's testimony. There is no basis for concluding that this strategic decision was affected by defense counsel's failure to conduct additional pretrial investigation. Therefore, his decision not to call Jackson is entitled to the same deference as any other strategic decision by defense counsel. See Fritz, supra, 105 N.J. at 61 ("[T]he obstacles facing defendant's attorney in terms of inability to prepare are insufficient to warrant a presumption of prejudice and to excuse the need for an inquiry into the actual conduct of the trial."); see also State v. Chew, 179 N.J. 186, 211 (2004); State v. Bey, 161 N.J. 233, 255-56 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed.2d 964 (2000); State v. Savage, 120 N.J. 594, 616-17 (1990).
We also reject defendant's argument that defense counsel's representation was deficient in failing to call defendant's brother James Arthur to testify that defendant did not sell the drugs to Crittenden and that Jackson said he was the one who sold the drugs. Defense counsel testified that he decided, with defendant's concurrence, not to call Arthur because he believed Crittenden had been an effective witness and that Arthur would not be a credible witness:
I was pleasantly surprised with [Crittenden's] testimony. I felt very confident after she testified. I talked it over with [defendant] and he agreed let's just take our chances with her testimony and the reason why I didn't call James Arthur was because, of course, the traditional problems that you have with bias. You have a brother. I didn't find him particularly credible when I interviewed him. I found him to be a bit -- I wouldn't say that he was uncooperative. He was certainly there but he wasn't very forthcoming with information. He wasn't very specific with information. He would have I surmised testified that [defendant] was not the seller but in light of Miss Crittenden who was objective, unbiased, had no axe to grind, I felt comfortable and confident with Miss Crittenden but I didn't make the final call, he [defendant] did.
Defense counsel also stated that he considered calling Arthur to testify that Jackson had initially admitted selling drugs to Crittenden but ultimately decided not to call Arthur for that purpose. Defense counsel was not asked why he made this decision. However, such testimony would have posed obvious strategic risks to the defense. Arthur's testimony that he had heard Jackson admit he sold the drugs to Crittenden would have been admissible as a declaration against penal interest, see N.J.R.E. 803(c)(25), but this evidence could have aided the defense only if the jury found Arthur to be a credible witness, and defense counsel had concluded that Arthur did not seem credible. Moreover, if Arthur had testified that Jackson said he was the one who sold the drugs to Crittenden, Judge Barisonek may have reconsidered his decision to deny the State's request for a delay in the trial to locate Jackson and produce him as a rebuttal witness. And if Jackson could not be located, the admission of Arthur's testimony that Jackson had admitted selling drugs to Crittenden would have permitted the State to present the prosecutor's investigator to testify as a rebuttal witness that when she interviewed Jackson, he had not claimed that he sold the drugs to Crittenden. See N.J.R.E. 806; Norman, supra, 151 N.J. at 33. Therefore, defense counsel could reasonably have concluded that the jury would be likely to discredit Arthur's testimony that Jackson had admitted selling drugs to Crittenden and instead credit testimony by the prosecutor's investigator that Jackson had not made such an admission.
Defendant also argues that defense counsel was ineffective in failing to visit the area where he was alleged to have sold drugs to Crittenden, failing to interview potential defense witnesses before trial and failing to call any defense witnesses in addition to Crittenden at trial. These arguments require only brief discussion.
Defense counsel testified that because the defense rested on Crittenden's testimony that Jackson, not defendant, was the seller and Jackson's possible corroborative testimony, he "felt pretty comfortable" in preparing the case without visiting the location of the drug transaction. Defendant does not suggest how the cross-examination of Crawford or any other part of the defense case could have been more effective if defense counsel had visited that location. Consequently, there is no basis for concluding that "there is 'a reasonable probability . . . the result of the [trial] would have been different,'" if defense counsel's pretrial preparation had included such a visit. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defense counsel interviewed two of defendant's proposed witnesses, Jackson and James Arthur, during trial and made strategic decisions based on those interviews and the course of trial proceedings not to call them as defense witnesses. In the absence of evidence that defense counsel's failure to interview Jackson and Arthur before trial affected those decisions, there is no basis for concluding that this failure constituted ineffective assistance. We also are satisfied for the reasons previously discussed that defense counsel's strategic decisions not to call Jackson or Arthur did not constitute ineffective assistance.
The other two names on defendant's witness list were his fiancée Crystal Ross and Danielle Tomlinson. Although defense counsel did not interview them before trial, defendant told him Ross and Tomlinson would testify that they were present at the time of his arrest and that he was not selling drugs. Defendant also told defense counsel that "he had control over [these] witnesses" and would secure their presence at trial. However, defendant brought only Jackson and Arthur to the trial, and when the prosecutor inquired about interviewing Ross and Tomlinson, defense counsel informed her and Judge Barisonek in defendant's presence: "I couldn't get them here." Although defendant testified at the hearing on the petition for post-conviction relief, he did not indicate why he failed to produce Ross and Tomlinson as defense witnesses, as he had told defense counsel he would do. Ross stated in her affidavit submitted in support of defendant's petition that "[defendant] told me that his lawyer said I wasn't needed[,]" and testified at the hearing on the petition that defense counsel told her after trial that she would not have been a credible witness because she was defendant's girlfriend. Therefore, it is reasonable to infer that defense counsel made a strategic decision not to call Ross as a witness. Moreover, in view of Ross's close personal relationship to defendant and the risk that her version of the drug sale would conflict with Crittenden's, there is no basis for concluding that this decision was objectively unreasonable or that there is a likelihood Ross's testimony would have changed the outcome of the trial.
Tomlinson was not produced as a witness at the hearing on the petition for post-conviction relief. Consequently, there is no evidence that she was even available to testify at the time of defendant's trial and thus no foundation for concluding that the failure to call her constituted ineffective assistance of counsel. See Commonwealth v. Santiago, 855 A.2d 682, 699 (Pa. 2004) (holding that to establish ineffective assistance based on failure to call witness, defendant must show the witness was available at time of trial); Valdes-Fuerte v. State, 892 S.W.2d 103, 110 (Tex. Ct. App. 1994) (same).
In addition to the ineffective assistance of counsel claims asserted by defendant, the dissent contends that defense counsel was ineffective in failing to obtain a signed written confession from Jackson, infra at ___ (slip op. at 20-21), failing to have an impartial third party present at the interview of Jackson who could have testified about Jackson's original statement exculpating defendant, infra at ___ (slip op. at 21), and failing, in the absence of such a third party witness, to disqualify himself as defendant's counsel and testify himself about Jackson's original statement, infra at ___ (slip op. at 22-23). None of these claims were raised by defendant in his petition for post-conviction relief, his arguments at the hearing on the petition or his appellate brief.
An appellate court ordinarily will not consider issues that were not presented to the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and an appellate court should be even more hesitant to raise an issue sua sponte that the parties have not had an opportunity to address, see Robbiani v. Burke, 77 N.J. 383, 395 (1978). If defendant's petition had asserted that defense counsel provided ineffective assistance in failing to obtain a written confession from Jackson and failing either to have a third party witness present at his interview of Jackson or to disqualify himself and testify about Jackson's original statement, the prosecutor undoubtedly would have asked defense counsel additional questions relevant to those claims. Therefore, it is appropriate to confine appellate review of the denial of defendant's petition to the ineffective assistance claims asserted by defendant.
In any event, the dissent's assumption that Jackson would have been willing to provide defense counsel with a written confession or to repeat his statement that he sold the drugs to Crittenden in front of an impartial third party is speculative. Jackson's statement to defense counsel that he was the one who sold the drugs to Crittenden was made solely in the presence of defendant's brother, who could have exerted coercive pressure upon Jackson to make this assertion. The fact that Jackson retracted this assertion when he spoke to defense counsel the following day indicates that he was a skittish potential witness who may have been reluctant to reduce his inculpatory statement to writing or to repeat it in front of anyone other than defendant's brother. Furthermore, even if defense counsel had succeeded in obtaining a written confession or oral inculpatory statement in front of an impartial third party, the State could have impeached this admission by introduction of evidence that Jackson retracted the admission when defense counsel interviewed him the second time and that Jackson did not claim to have sold drugs to Crittenden when he was interviewed by the prosecutor's investigator. There also is a substantial likelihood that if defendant had presented such evidence, Judge Barisonek would have granted the prosecutor's application for a delay in the trial to afford her an opportunity to produce Jackson as a rebuttal witness. Therefore, even assuming defense counsel had been able to obtain a written or oral confession from Jackson, we are unable to conclude that there is a "reasonable probability" the outcome of defendant's trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We also consider it necessary to comment upon the dissent's assertion that "it is highly unusual that three individuals would be willing to come forward and offer testimony not only exonerating a defendant, but also implicating another person in the neighborhood [and] still more unusual that the person implicated would actually admit his guilt to clear a wrongfully charged defendant." Infra at ___ (slip op. at 26). Since one of the three individuals referred to by the dissent was the defendant's brother and another his fiancée, we perceive nothing unusual in their effort to relieve defendant of responsibility for the crime by testifying that it was committed by another person. Defendant was unable to produce the third individual, Danielle Tomlinson, as a witness either at trial or at the hearing on the petition. Consequently, the record does not show that she was actually available to testify on defendant's behalf. Moreover, because Tomlinson never testified, the record does not indicate the nature of her relationship with defendant or any of the other persons interested in securing his acquittal. The record also does not indicate the precise nature of Jackson's relationship with defendant. However, defense counsel testified at the hearing on the petition that Crittenden told him that defendant and Jackson were both engaged in drug-dealing in the area of 969 West 3rd Street on the day of the drug sale to her. If defendant and Jackson were affiliated in this enterprise or defendant and his brother intimidated Jackson, it does not seem implausible that Jackson might take responsibility for defendant's sale of drugs to Crittenden, or as defendant explained to defense counsel, "take the weight for being the seller," particularly if Jackson's sentencing exposure was substantially less than defendant's. What may appear highly unusual to appellate judges may not be so unusual in the culture of street-level drug dealers.
A review of the complete trial transcript shows that defense counsel made an objectively reasonable decision regarding his overall strategy in defending the charges against defendant by relying primarily upon Crittenden's identification of Jackson as the actual seller and that he conducted this defense in a reasonably effective manner. Defense counsel told the jury in his opening that they were going to hear two completely disparate versions of the alleged drug sale to Crittenden, one by the State in the form of police officers' testimony and the other by one or two defense witnesses. Defense counsel told the jury that the State's case rested primarily on Detective Crawford's credibility and that it should not assign "undue consideration" to police officers' testimony because, if it did, "the scales of justice would shift . . . improvidently in their favor." He therefore urged the jury to employ a "zero credibility test," under which any defense witness's testimony is given the same consideration as a police officer's testimony.
In his cross-examination of Detective Crawford, defense counsel brought out that Jackson resided at the 969 West 3rd Street address where Crawford allegedly observed defendant sell drugs and that Crawford had not made any effort to find out who lived there before trial. He also brought out that the police had not fingerprinted the KFC box or brown bag in which defendant's alleged stash of drugs was hidden or the vials containing the drugs. In addition, defense counsel suggested that Crawford had an ulterior motive to identify defendant as the seller, asking him, "Did you ever say to my client, 'I told you I would get you'?" to which Crawford responded, "no."
In his cross-examination of Detective Jeffrey Carrier, the officer in the back-up unit who recovered the drugs behind the bushes, defense counsel asked whether Crittenden told him defendant was not the one who sold her drugs, and suggested that Carrier had no interest in hearing evidence that someone other than defendant was the seller:
Q. Do you recall, also, that Miss Crittenden advised you at the time that she was being arrested by yourself and your partner that the guy that actually sold the drugs wasn't Mr. Arthur?
A. No sir.
. . . .
Q. Is it possible that she told your partner that and you weren't at
the location when she said that?
A. It's possible.
. . . .
Q. And if she had told you that, of course, the seller wasn't Mr.
Arthur you would have been interested to hear that. Right?
A. Not really.
Q. I thought so.
In cross-examining Carrier, defense counsel also brought out that the police had not
retained either the KFC box or brown bag in which the drugs were
located.
In his summation, defense counsel reminded the jury that the State's case essentially
turned on Detective Crawford's credibility and that Crawford's testimony should not be accepted
simply because he is a police officer:
[W]e don't put the police officer on a pedestal, we put him at
ground zero and either the barometer goes up or down based on your
determination of his credibility. And based on this particular case I'm asking you,
as I've asked you at the beginning of the case, to assume that
all witnesses are equal, okay, and judge them according to what the testimony
reflects . . . .
Defense counsel then argued that the jury should find Crittenden credible because she
had no motive to lie about Jackson's identity as the seller, and she
repeatedly told the police from the time of her arrest that Jackson, not
defendant, was the seller:
You have to analyze her motives and one of the bases to assess
whether she is credible and Detective Crawford lied to you is whether or
not she tried to announce that truth before. Did she ever do it
before. We know she did. She did it at the scene and I
think one of the officers indicated she was trying to say something, she
was doing a lot of talking and no doubt she indicated that Mr.
Arthur was not the
person who sold her drugs, no doubt about
it . . . . Plainfield police don't want to hear this. They
have their own agenda. It's not for me to say why a particular
police officer has an agenda or an axe to grind over a particular
suspect and why he would pin a rap on someone rather than the
person who actually did it. I don't know, but I do know that
Miss Crittenden made it clear over, and over again that, "You have the
wrong guy."
Defense counsel also pointed out that Crittenden initially indicated Jackson was the seller
when she pled guilty to purchasing the drugs and that she identified defendant
as the seller only after the prosecutor and trial judge told her she
had to name him to get the benefit of her plea bargain:
She indicated, "It's Robert Jackson," at the beginning. Whoops? "What do you mean
those aren't the rules? I can't say the truth"? No.
The Court takes a break, comes back, she confers with her attorney and
the Prosecutor says, "Well, let's try this again, Miss Crittenden. Remember the deal
here? Okay"? And suddenly she has a recollection that it's Michael Arthur who
now is the seller. It's a game, that is all it is, it's
not a very good game, it's not something which I would ascribe much
integrity to because I'm not sure it has much to do with the
truth. She was trying to say, "I got the wrong guy, but if
you need me to say Arthur is the guy to get the deal
I'll say it," but isn't this ridiculous, it's literally out of the mouths
of babes in a way. Here is this innocent person to the system,
okay, she has prior convictions and she's been through the system to some
degree, but she does not –- she is not a lawyer, she is
not a Judge, she is someone of limited education and she is telling
everyone, "There is something not cool here. You know, this is the guy
who did it," but you know he didn’t do this. "Can't I just
admit my guilt? Isn't that good enough for the State"? But it's not.
Why did they take a break? They took a break to get the
story straight so she could do the dance, and she does the dance.
It's all this case is about and you will have to make the
call.
In addition, defense counsel argued that if the jury had any doubt about
defendant's guilt based on Crittenden's testimony, they should acquit him because the State
had the burden of proving his guilt beyond a reasonable doubt:
[Y]ou have a reasonable certainty that you are comfortable and confident that this
man was the person that sold the drugs. You have to feel that,
you have to believe that, otherwise if you don't have it you cannot
convict him . . . . Based upon what Miss Crittenden said, who
is what I would submit is a whistle blower, that is what she
is, she is basically unleashing the truth about a dirty system, she is
telling you that and you have an obligation in this case only, I'm
not talking about the large picture of what happens in society, I'm talking
about how it affects this man's life to acquit him based upon her
testimony, which is the truth.
Thus, defense counsel provided defendant with an aggressive and reasonably competent defense of
the charges against him. His effort to create reasonable doubt concerning Crawford's identification
of defendant as the person who sold drugs to Crittenden through Crittenden's testimony
that Jackson was the actual seller would have been seriously undermined if Jackson
had taken the stand and denied he was the seller. Consequently, defense counsel
made a reasonable strategic decision to avoid this risk by not calling Jackson.
This opinion should not be read to condone a defense attorney's failure to interview prospective defense witnesses until the day of trial. An attorney assigned the solemn responsibility of representing a person charged with a serious crime has a professional obligation to interview prospective witnesses and conduct other appropriate pretrial investigation a sufficient time before trial to formulate a defense strategy that affords the accused the best possible opportunity to secure an acquittal. Although the record does not indicate whether defense counsel bears sole responsibility for his failure to interview Jackson or other potential defense witnesses before trial or whether that failure reflects systemic problems within the Public Defender's office, the Public Defender has ultimate responsibility for assuring that criminal defendants are provided adequate representation.
But even though defense counsel's pretrial preparation fell short of the professional standards to which the Public Defender should require adherence, the purpose of the constitutional guarantees of effective assistance of counsel "is not to improve the quality of legal representation." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "The purpose is simply to ensure that criminal defendants receive a fair trial." Ibid.; see also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) ("The test [of ineffective assistance] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.") (quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992), cert. denied, 514 U.S. 1131, 115 S. Ct. 2008, 131 L. Ed.2d 1008 (1995)), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed.2d 103 (1995). Our review of the trial record shows that defense counsel made an objectively reasonable decision not to call Jackson as a defense witness based on his assessment of the effectiveness of Crittenden's trial testimony and his justifiable concern that Jackson could undermine Crittenden's testimony by denying he was the one who sold her drugs. Therefore, we are satisfied that defense counsel's representation of defendant fell "within the wide range of reasonable professional assistance" to which an accused is entitled and that defendant received a "fair trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. This is all we need to decide to sustain the denial of defendant's petition.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, and RIVERA-SOTO join in JUDGE SKILLMAN’s opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICES ZAZZALI and WALLACE join. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A- 71 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL ARTHUR,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
The most seasoned trial attorney cannot do justice to his client’s cause if
he does not prepare for trial. If he fails to conduct an investigation,
or interview and take statements from critic