SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5188-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RUEL G. ELLIS,
Defendant-Appellant.
_________________________________________________________________
Submitted: February 19, 1997 - Decided: April 10, 1997
Before Judges Michels, Kleiner and Coburn.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Susan L. Reisner, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, of counsel and on the brief).
Charles R. Buckley, Deputy Attorney
General - In Charge, Acting Bergen County
Prosecutor, attorney for respondent (Annmarie
Cozzi, Special Deputy Attorney General, Acting
Assistant Bergen County Prosecutor, of counsel
and on the letter brief).
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Tried to a jury in absentia, defendant Ruel Ellis was found guilty of (1) attempted murder in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (First Count); (2) three counts of aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (Second, Fifth, and Eighth Counts); (3) three counts of aggravated assault
in violation of N.J.S.A. 2C:12-1b(2) (Third, Sixth, and Ninth
Counts); (4) three counts of aggravated assault in violation of
N.J.S.A. 2C:12-1b(4) (Fourth, Seventh, and Tenth Counts); and (5)
possession of a handgun with the purpose to use it unlawfully
against the person of another in violation of N.J.S.A. 2C:39-4a
(Eleventh Count).
Defendant's motion for a new trial on the ground that his
constitutional rights were violated by virtue of his absence from
the trial was denied by the trial court. The trial court then
merged defendant's convictions for aggravated assault under the
Second, Third, and Fourth Counts and his conviction for
possession of a weapon with the purpose to use it unlawfully
against the person of another under the Eleventh Count into his
conviction for attempted murder under the First Count. The trial
court also merged defendant's convictions for aggravated assault
under the Sixth and Seventh Counts into his conviction for
aggravated assault under the Fifth Count and merged defendant's
convictions for aggravated assault under the Ninth and Tenth
Counts into his conviction for aggravated assault under the
Eighth Count. For defendant's attempted murder conviction under
the First Count, the trial court committed defendant to the
custody of the Commissioner of the Department of Corrections
(Commissioner) for twenty years with a ten-year period of parole
ineligibility and imposed a $30 Violent Crimes Compensation Board
(VCCB) penalty on defendant. In addition, for defendant's
aggravated assault convictions under the Fifth and Eighth Counts,
the trial court committed defendant to the custody of the
Commissioner for concurrent terms of ten years and assessed
defendant with VCCB penalties totaling $60. Defendant appealed.
Defendant seeks a reversal of his convictions or,
alternatively, a modification of his sentences on the following
grounds:
POINT I: THE TRIAL COURT ERRED BY RULING
THAT THE TRIAL SHOULD COMMENCE AND
PROCEED TO ITS CONCLUSION IN THE
DEFENDANT'S ABSENCE.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT
TO THE EFFECTIVE ASSISTANCE OF
COUNSEL.
POINT III: THE JURY'S VERDICTS WITH RESPECT TO
COUNTS I THROUGH XI WERE
INCONSISTENT, ILLOGICAL AND THE
RESULT OF COMPROMISE AS A RESULT OF
ITS NOT GUILTY VERDICT WITH RESPECT
TO COUNT XII.
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.
In a pro se supplemental brief, defendant raises the
following additional issue:
THE TRIAL JUDGE ABUSED ITS
DISCRETION BY FAILING TO QUESTION
THE JURY AS TO WHETHER OR NOT THEY
HAD THE OPPORTUNITY TO REVIEW ANY
OF THE MATERIALS PLACED ON THE
EVIDENCE TABLE.
We have carefully considered these contentions and all
arguments advanced in support thereof by defendant through
counsel and in his pro se supplemental brief and find that they
are without merit and warrant only the following discussion in a
written opinion. R. 2:11-3(e)(2).
Defendant contends that the trial court erred in permitting the trial to proceed in his absence since his absence was not knowing, voluntary, and unjustified. Defendant also claims that, for the same reason, the trial court erred in denying his motion for a new trial. Defendant argues that he was never expressly informed on the day of trial that if he was not present, the trial would proceed in his absence. In addition, defendant asserts that, during the motion for a new trial, the prosecutors's statement that Judge DiGisi warned defendant what could occur if he did not appear and the trial court's recollection that such warnings were standard for Judge DiGisi, were not definitive proof that he (defendant) was so warned because both the prosecutor and the trial court could have erred. Finally, defendant claims that he did not deliberately absent himself from the trial because he would not have wasted his time preparing the case for trial with his attorney and he would never have appeared in court on September 30, 1991, if it had been his intention to absent himself from the trial.
The record shows that at defendant's arraignment on June 7, 1991, the following exchange took place between Judge DiGisi and defendant:
The Court: I further advise you that you have an absolute right to be present at every stage of the proceeding.
If you do not appear at any subsequently established trial date, your case can proceed without you being present or may proceed without you being present. A warrant will be issued for your arrest and your bail will be
canceled and forfeited. Do you understand
that?
The defendant: Yes, sir.
[Emphases added.]
At the calendar call of defendant's case on the morning of
September 30, 1991, the following exchange took place among Judge
DiGisi, defendant, and the prosecutor:
The clerk: Ruel Ellis
The defendant: Here
The Court: Is your lawyer here, Mr.
Ellis?
The defendant: No, I don't see him.
[The prosecutor]: Judge, he
called. . . . and told me he would be here at
around ten o'clock. He told me he called
your chambers.
The Court: That's right.
[The prosecutor]: I am ready judge.
The Court: Good. I'm ready for you
too. We'll get you out right away at ten
o'clock. . . .
. . . .
(Recess.)
The Court: Ruel Ellis
[The Prosecutor]: Tony Fusco is
defense.
The Court: Are you ready, gentlemen?
[The prosecutor]: Yes, Judge.
The Court: Go right up to Judge
Kuechenmeister he's ready to start your
trial. Judge Kuechenmeister please.
[Emphases added.]
In the early afternoon of the same day, September 30, 1991,
after Judge DiGisi had assigned defendant's case to Judge
Kuechenmeister for trial, the following exchange took place among
Judge Kuechenmeister, the prosecutor, and defendant's attorney:
[Defense counsel]: Your Honor, it is
about five after two, at least on my watch.
This is the matter of State -vs- Ruel Ellis,
indictment S-600-89. My client appeared
before Judge Digisi this morning promptly at
9:00. Although I did not appear there until,
I'd say ten after ten, we went through a
calendar call and Judge DiGisi -- we were
sent up to you approximately, I would say,
11:00, in that range, 11:15, and I say
approximately. My client came up to the
courtroom, and in fact was in the courtroom
at one point in time and was outside. . . .
He was seated on the bench for [a w]hile,
went down had a cup of coffee with me and his
friend, then went on his way, I assume, back
up to your court room. I came back up here
and we had a pretrial conference in your
chambers. When we came out here he was
nowhere to be found. I believe this was a
quarter to 12, ten to 12 when you told us to
come back at 1:30.
Well, it's now, as I indicated, five
after two. He is gone. He's just nowhere
that I can find him. I've no reason to
understand why to account for his absence,
none whatsoever.
I must state that as an officer of the
court I can state he was in my office on
Saturday and we prepared the case. He gave
me some witnesses that he wished to have
called and I provided them to the prosecutor.
I ha[d] no reason to anticipate he would not
show up for trial.
He did, I have to say Judge, asked -- I
would have to state that he knew this as a
trial date, that's all I have to say.
The Court: Prosecutor?
[The prosecutor]: . . . .
I agree with what [defense counsel] has
stated. The defendant, Ruel Ellis, was in
Judge DiGisi's court 9:00 when I arrived
there this morning. We were sent up
approximately 10:30 or 11:00, somewhere in
that area. Judge DiGisi on the record at
this point stated that the case was going up
to your Honor for trial. . . . [W]hen we
went to begin . . . this morning,
approximately a quarter to 12, the defendant
was nowhere to be found. . . . It is now a
quarter after two, the defendant is nowhere
to be found to my knowledge in the
courthouse.
. . . .
In addition, State -vs- Hudson, the
State would ask to proceed with trial. State
-vs- Hudson, 119, 165, I believe is directly
on point and permits the Court to allow the
State to proceed to trial.
We have been prejudiced by the
defendant's absence up until this point, and
to delay it any further at his control would
be further prejudicial to the State.
[Defense counsel]: Again, I take no
position with regard to that. . . .
. . . .
The Court: [The trial is] going to
proceed. . . . It's going to start.
[Emphases added.]
On October 1, 1991, before the State called its first
witness, the following colloquy took place among Judge
Kuechenmeister, the prosecutor, and defendant's attorney:
[Defense counsel]: Your Honor, I'd like
to have [the defendant's attorney who was
present yesterday,] Mr. Fusco's motion -
that the matter be adjourned to enable us to
locate [defendant].
The Court: Counsel, [defendant] was here yesterday and it was sent out for trial
and he voluntarily absented himself. . . .
The process has started.
[Defense counsel]: I believe, though in
accordance with State -vs- Hudson, there has
to be some showing that Mr. Ellis understood
that it would commence.
The Court: It was Judge DiGisi who sent
it out for trial, and [defendant] accompanied
Mr. Fusco here. He started in on the motions
and [defendant] disappeared, so I was
convinced [defendant] was aware of it.
[The prosecutor]: Judge, also for the
record, I was in Judge DiGisi's court, he
called the case for trial, and [defendant]
came up to counsel table with Mr. Fusco, and
Judge DiGisi said words to the effect, please
go up to Judge Kuechenmeister's for trial.
[Emphases added.]
We are convinced from our study of the record that there was
sufficient credible evidence to support the trial court's
determination that defendant voluntarily and knowingly waived his
right to be present during trial and that his absence was
inexcusable. The trial court, therefore, properly proceeded with
the trial and properly denied defendant's motion for a new trial
on the ground that he was improperly tried in absentia.
Both the United States and New Jersey Constitutions provide
that an accused will have the right to be confronted with
witnesses against him/her. U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 10. Included within this right is an accused's right
to be present in court at every stage of his/her trial. See
Illinois v. Allen,
397 U.S. 337, 338,
90 S. Ct. 1057, 1058,
25 L.
Ed.2d 353, 356 (1970); State v. Hudson,
119 N.J. 165, 171
(1990). A defendant's presence at his/her own trial is also
important for Fourteenth Amendment due process purposes because
the right "is a condition of due process to the extent that a
fair and just hearing would be thwarted by [the defendant's]
absence[.]" Snyder v. Massachusetts,
291 U.S. 97, 107-08,
54 S.
Ct. 330, 333,
78 L. Ed. 674, 679 (1934), overruled on other
grounds, Duncan v. Louisiana,
391 U.S. 145,
88 S. Ct. 1444,
20 L.
Ed.2d 491 (1968).
At the time of defendant's trial, R. 3:16 provided in
pertinent part that
[t]he defendant shall be present at every
stage of the trial including the impaneling
of the jury and the return of the verdict,
and at the imposition of sentence, unless
otherwise provided by rule, but the
defendant's voluntary absence after trial has
commenced in his presence shall not prevent
its continuing to and including the return of
the verdict. . . .
In State v. Hudson, supra, 119 N.J. at 167, 181 (1990), our
Supreme Court announced that it could not distinguish between a
defendant who leaves the court shortly after trial begins and one
who leaves after being informed that trial is about to begin
because both cases "indicate[] a defiance of the judicial system
and can lead to a severe disruption of the criminal calendar."
(Citation omitted.) Thus, the Hudson Court held that "a
defendant's knowing, voluntary, and unjustified absence before or
after trial has commenced does not prevent trial from proceeding
in absentia." Id. at 182.
Nevertheless, the Court cautioned that "[a]dequate notice to
the defendant is an essential element of a knowing waiver of the
right to attend trial." Ibid. The Hudson Court continued: "The
best opportunity to provide such notice is at the arraignment,
where a defendant is informed of other significant protections,
such as the right to counsel." Ibid. The Court in Hudson then
fashioned the following rule regarding a trial in absentia:
We hold that a defendant's inexcusable
absence from trial, under circumstances
demonstrating knowledge of the time and place
of trial, the right to be present, and that
the trial may proceed if defendant is absent,
constitutes a sufficient basis for a trial
court's decision to proceed.
[Id. at 183.]
The Hudson Court concluded that there was ample evidence in
the record to support the trial court's finding that the
defendants in the matter before it waived their right to be
present at trial. Ibid. Although the defendants had not been
warned at their arraignment of their right to be present at
trial, the Court in Hudson found that the defendants had such
knowledge because they appeared in court on the day their case
was scheduled for trial. Id. at 182-83. In addition, the Hudson
Court noted that neither defendant claimed that he was uninformed
about the day or time his trial would start. Id. at 183.
Following the Court's decision in State v. Hudson, supra, R.
3:16 was amended in 1992, see Pressler, Current N.J. Court Rules,
comment on R. 3:16 (1997), and now reads in part:
The defendant shall be present at every stage
of the trial, including the impaneling of the
jury and the return of the verdict, and at
the imposition of sentence, unless otherwise
provided by Rule. Nothing in this Rule,
however, shall prevent a defendant from
waiving the right to be present at trial. A
waiver may be found either from (a) the
defendant's express written or oral waiver
placed on the record, or (b) the defendant's
conduct evidencing a knowing, voluntary, and
unjustified absence after (1) the defendant
has received actual notice in court of the
trial date, or (2) trial has commenced in
defendant's presence. . . .
We recently reiterated that a defendant had to receive
actual notice of his/her trial date in order to waive his/her
right to appear at trial, stating:
While an attorney undoubtedly has the duty to
inform his client of all scheduled
proceedings, our rules and earlier decisions
require that defendant actually be notified
of the trial date.
We hold that in order to sustain a
waiver of the right to be present, it must be
shown the trial date was actually
communicated to the defendant and the accused
unjustifiably failed to appear.
[State v. Davis,
281 N.J. Super. 410, 415-16
(App. Div. 1995) (citation omitted), certif.
denied,
145 N.J. 376 (1996).]
See also State v. Finklea,
147 N.J. 211, 213 (1996) ("We hold
that once a defendant has been given actual notice of a scheduled
trial date, nonappearance on the scheduled or adjourned trial
date is deemed a waiver of the right to be present during the
trial absent a showing of justification by the defendant."
(emphasis added)). Nevertheless, we also recently held that in
addition to actual notice, a defendant can agree to receive
notice of an as-yet undetermined trial date from his/her attorney
if he/she agrees, on the record, to receive such notice. State
v. Mahone,
297 N.J. Super. 524, 528 (App. Div. 1997).
Here, defendant knowingly, voluntarily, and inexcusably
absented himself from trial. Defendant had been advised by Judge
DiGisi that he had the right to be present at all proceedings and
also had been informed that all proceedings could continue
without him if he refused to appear. When Judge DiGisi asked him
if he understood this right and potential waiver, defendant
replied unequivocally, "Yes, sir." In addition, defendant was
notified of this information at his arraignment, the proceeding
at which the Hudson Court suggested such notice be given. More
importantly, defendant had actual knowledge of his trial date.
During defendant's calendar call on September 30, 1991, Judge
DiGisi said, in defendant's presence, "I'm ready for you too.
We'll get you out right away at ten o'clock." Judge DiGisi then
instructed, "Go right up to Judge Kuechenmeister, he's ready to
start you trial." Clearly, the trial court actually communicated
to defendant that his trial was about to begin.
Under the circumstances, defendant waived his right to be
present during the trial, and, therefore, the trial court
properly proceeded with the trial in his absence and properly
denied his motion for a new trial on the ground that the trial
court erred in trying him in absentia.
We are also satisfied that defendant was not denied effective assistance of counsel because Anthony Fusco, Esq., whom
defendant had retained, had his associate, Clare Pessolano, Esq.,
represent defendant at trial.
Both the federal and state constitutions grant a criminal
defendant the right to assistance of counsel. U.S. Const. amend.
VI; N.J. Const. art. I, ¶ 10. The United States Supreme Court
has recognized that the right to counsel encompasses the right to
effective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 686,
104 S. Ct. 2052, 2063,
80 L. Ed.2d 674, 692
(1984). In Strickland v. Washington, supra, the United States
Supreme Court set forth a two prong test to determine whether
"counsel's assistance was so defective as to require reversal of
a [defendant's] conviction":
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. . . .
[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d
at 693.]
As to the first prong, an attorney's deficient performance, the Strickland Court announced that an attorney's performance is judged by a standard of "reasonably effective assistance." Ibid. While noting that a court must consider all circumstances in determining the reasonableness of an attorney's performance, the Supreme Court cautioned that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of
the variety of circumstances faced by defense counsel or the
range of legitimate decisions regarding how best to represent a
criminal defendant." Id. at 688-89, 104 S. Ct. at 2065, 80 L.
Ed.
2d at 694. The Court in Strickland then stated that there is
a "strong presumption" that a counsel's performance falls within
the broad range of reasonable professional assistance. Id. at
689, 104 S. Ct. at 2065, 80 L. Ed.
2d at 694. Accordingly, to
fulfill the first prong of an ineffective assistance claim, the
Supreme Court announced that
[a] convicted defendant making a claim of
ineffective assistance must identify the acts
or omissions of counsel that are alleged not
to have been the result of reasonable
professional judgment. The court must then
determine whether, in light of all the
circumstances, the identified acts or
omissions were outside the wide range of
professionally competent assistance. In
making that determination, the court should
keep in mind that counsel's function, as
elaborated in prevailing professional norms,
is to make the adversarial testing process
work in the particular case. At the same
time, the court should recognize that counsel
is strongly presumed to have rendered
adequate assistance and made all significant
decisions in the exercise of reasonable
professional judgment.
[Id. at 690, 140 S. Ct. at 2066, 80 L. Ed.
2d
at 695.]
The Strickland Court then announced that even if a defendant overcomes the first prong, he/she must still meet the second element because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 140 S. Ct. at 2066, 80 L. Ed. 2d at 696. Therefore,
unless prejudice was presumed, the Supreme Court ruled that a
defendant must prove prejudice. Id. at 692-93, 140 S. Ct. at
2067, 80 L. Ed.
2d at 696-97. The Supreme Court in Strickland
then determined that to establish such prejudice, a defendant
"must show 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, 140 S. Ct. at 2068, 80 L. Ed.
2d at 698.
In United States v. Cronic,
466 U.S. 648, 658-62,
104 S. Ct. 2039, 2046-48,
80 L. Ed. 657, 667-70 (1984), decided the same day
as Strickland v. Washington, supra, the Supreme Court of the
Unites States addressed the second prong of the Strickland
test....showing counsel's performance prejudiced defendant....and
held that in certain circumstances prejudice would be presumed
and a finding of ineffective assistance of counsel would be
entered as a matter of law. The Cronic Court gave three examples
of such presumed prejudice: (1) when a defendant is completely
denied counsel; (2) when a defendant's counsel completely fails
to subject the prosecutions's case to "meaningful adversarial
testing"; and (3) when, under the surrounding circumstances, the
designation of counsel is so close to trial as to amount to a
denial of effective and significant aid. Id. at 659-61, 104 S.
Ct. at 2047-48, 80 L. Ed.
2d at 668-69. In the last situation,
however, the Cronic Court warned that not every case in which a
court refuses to postpone a trial would give rise to such a
presumption. Id. at 661, 104 S. Ct. at 2048, 80 L. Ed.
2d at
669.
In State v. Fritz,
105 N.J. 42, 58 (1987), our Supreme Court
adopted the Strickland and Cronic tests for ineffective
assistance of counsel. In Fritz, over two years after he had
been indicted, the defendant met with his attorney, who was
assigned by the public defender's office, in December of 1982
about a possible plea bargain. Id. at 47. The attorney then
received a trial notice on April 28, 1983 setting Monday, May
9th, as the trial date. Ibid. The attorney, however, did not
learn until the Friday preceding the Monday date that the trial
was actually going forward. Id. at 48. On the morning of trial,
the attorney requested a continuance stating that he had only had
his first serious discussion with his client that morning, had
not ordered a copy of the probable cause transcript, and had not
contacted witnesses. Ibid. The trial court denied his motion,
noting that the first day was only for jury selection so the
attorney had from that evening until the following morning to
prepare for trial. Ibid. The defendant was convicted and
appealed arguing that he was denied effective assistance of
counsel. Id. at 48-49.
In addressing whether it would apply the Strickland and
Cronic tests, the Court in Fritz announced:
Even if we are not constitutionally
compelled to adopt the Strickland-Cronic
test, the development of the law in this area
impels us to conclude that we should
recognize the soundness and efficacy of both
the substance and formulation of this federal
Constitutional standard in defining our own
State Constitutional guarantee of effective
assistance of counsel. We therefore hold
that under Article I, paragraph 10 of the
State Constitution a criminal defendant is
entitled to the assistance of reasonably
competent counsel, and that if counsel's
performance has been so deficient as to
create a reasonable probability that these
deficiencies materially contributed to
defendant' conviction, the constitutional
right will have been violated.
[Id. at 58.]
The Fritz Court then noted, in discussing Cronic's
presumptive prejudice standard, that "no federal court has
reversed a criminal conviction, pursuant to Cronic, based solely
on the ground of inadequate attorney preparation, whether
attributable to the trial court's refusal of a continuance or
not." Id. at 61-62. See also id. at 61 n.3 ("The vast majority
of [S]ixth [A]mendment claims based upon inadequate preparation
continue to be rejected regardless of whether the inadequate
preparation is traceable to the haste of the trial court or the
incompetence of the trial attorney.") Based on this judicial
experience, the Fritz Court concluded that no Cronic situation of
presumed prejudice had occurred in the case before it because the
attorney spoke to the defendant about the proffered plea bargain,
the attorney had at least one full day to prepare for trial, and
the case did not present overly complicated or difficult issues
for an experienced criminal defense attorney. Id. at 63.
In addition to the constitutional right to assistance of
counsel requiring that the assistance be effective, the right
generally permits a defendant to secure counsel of his/her own
choice. See Crooker v. California,
357 U.S. 433, 439,
78 S. Ct. 1287, 1291,
2 L. Ed.2d 1448, 1454 (1958), overruled on other
grounds, Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602, 16 L.
Ed.2d 694 (1966); State v. Furguson,
198 N.J. Super. 395, 401
(App. Div.), certif. denied,
101 N.J. 266 (1985). Nevertheless,
an accused does not have an absolute right to the counsel of
his/her own choice. See Wheat v. United States,
486 U.S. 153,
159,
108 S. Ct. 1692, 1697,
100 L. Ed.2d 140, 148 (1988); United
States ex rel. Carey v. Rundle,
409 F.2d 1210, 1215 (3d Cir.
1969), cert. denied,
397 U.S. 946,
90 S. Ct. 964,
25 L. Ed.2d 127 (1970); State v. Crisafi,
128 N.J. 499, 517 (1992).
Contrary to defendant's claim, Ms. Pessolano was involved
with his case before trial and obviously was familiar with
defendant's case. Moreover, Ms. Pessolano appeared at
defendant's arraignment, attended the pretrial conference, and
submitted motion papers to suppress evidence. While Ms.
Pessolano may not have had defendant to confer with during the
trial, that was defendant's doing. Furthermore, this case, like
the case in State v. Fritz, supra, was not a difficult or
extraordinarily complex case factually or legally.
In addition, defendant has failed to point to any one aspect
of this case showing that Ms. Pessolano's performance was
deficient or not reasonably effective, the first element of the
two-pronged Strickland analysis. See Strickland v. Washington,
supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.
2d at 695
("[A] convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment.") Defendant simply has not met his burden
under Strickland v. Washington, supra.
In any event, we are satisfied that Ms. Pessolano gave
defendant reasonable professional assistance at trial and that
she adequately defended defendant's rights at trial. She cross-examined every prosecution witness with the exception of one
victim's treating physician. In so doing, she attacked the
witnesses' credibility by inquiring into whether their
perceptions were affected, questioning the accuracy of their
memories, determining if their identifications were flawed, and
using prior inconsistent statements to impeach. She also
presented two witnesses on behalf of defendant in an attempt to
show that the police mishandled evidence and did not follow other
potential leads, and to demonstrate that the prosecution's main
identification witness was not credible. In addition, Ms.
Pessolano raised appropriate objections, sought a mistrial on the
grounds that the jury was exposed to prejudicial material, and
presented requested jury charges to the court. Finally, Ms.
Pessolano presented a summation in which she argued, in an
attempt to create reasonable doubt, that there were several major
deficiencies in the State's case. In sum, Ms. Pessolano's
performance reflected, at the very least, reasonably competent
assistance of counsel.
Further, defendant contends that the jury's verdict finding him guilty of attempted murder, the aggravated assaults and possession of a handgun with the purpose to use it unlawfully against another under the First through Eleventh Counts was illogical and inconsistent in view of the fact that the jury found him not guilty of possession of a handgun without a permit under the Twelfth Count. In his brief, defendant argues that "since the jury could not possibly have determined that the State had failed to prove the absence of a permit for a firearm on [his] behalf, its acquittal necessarily meant that the jury had concluded that [he] had not possessed the firearm." Defendant, therefore, argues that to the extent that the jury found that he did not have the firearm, it could not convict him of the First through Tenth Counts which were based on his use of a firearm or the Eleventh Count which was based on his possession of a firearm without a permit. We disagree.
Inconsistent verdicts are permitted as long as there is sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt on the charges on which the defendant was convicted. This proposition was first enunciated by the United States Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), overruled on other grounds, Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1948), and was reaffirmed by the Court in United States v. Powell, 469 U.S. 57, 105 S. Ct.
471,
83 L. Ed.2d 461 (1984). In United States v. Powell, the
defendant was acquitted of conspiracy to possess cocaine with
intent to distribute and possession of cocaine with intent to
distribute but found guilty of using the telephone to facilitate
those crimes. Id. at 59-60; 105 S. Ct. at 474, 83 L. Ed.
2d at
465. She appealed, claiming that the verdicts were inconsistent
since the crimes of which she was acquitted were necessary to
prove the crime of which she was convicted. Id. at 60, 105 S.
Ct. at 474, 83 L. Ed.
2d at 465. In affirming defendant's
conviction, the Powell Court stated that inconsistent verdicts
would be upheld as long as a reviewing court is satisfied that
based on the evidence "the jury could rationally have reached a
verdict of guilt beyond a reasonable doubt." Id. at 67, 105 S.
Ct. at 478, 83 L. Ed.
2d at 470.
The Supreme Court noted that inconsistent verdicts should
not be considered a windfall for the prosecution, because "[i]t
is equally possible that the jury, convinced of guilt, properly
reached its conclusion on the [offense,] and then through
mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the lesser offense." Id. at 65, 105 S. Ct. at 476,
83 L. Ed.
2d at 468. The Supreme Court continued:
Inconsistent verdicts therefore present
a situation where "error," in the sense that
the jury has not followed the court's
instructions, most certainly has occurred,
but it is unclear whose ox has been gored.
Given this uncertainty, and the fact that the
Government is precluded [under the Double
Jeopardy Clause] from challenging the
acquittal, it is hardly satisfactory to allow
the defendant to receive a new trial on the
conviction as a matter of course.
[Id. at 65, 105 S. Ct. at 477, 83 L. Ed.
2d
at 468-69.]
The Powell Court then explained that it would not review
inconsistent verdicts on a theory of jury error because such
review would be based on mere speculation "or would require
inquiries into the jury's deliberations that courts generally
will not undertake." Id. at 66, 105 S. Ct. at 477, 83 L. Ed.
2d
at 469.
Recently, in State v. Grey,
147 N.J. 4, 11 (1996), our
Supreme Court adopted the Dunn/Powell rule in cases in which the
reason for the inconsistent verdict cannot be determined. In
Grey, the defendant was convicted of conspiracy to commit
aggravated arson. Id. at 8. He was also found guilty of felony
murder, despite having been acquitted of the predicate felony of
aggravated arson. Ibid. Because he was not convicted of the
predicate felony, the defendant argued that his conviction should
be set aside since the verdicts were inconsistent. Ibid.
In adopting the Dunn/Powell rule in cases in which the
reason for the inconsistency is not clear, the Grey Court
reflected that
[t]he Dunn and Powell decisions are not
binding on us but we agree with their
logic. . . . So long as the evidence is
sufficient to support a conviction on the
substantive offense beyond a reasonable
doubt, such verdicts are normally
permitted. . . .
. . . .
The Dunn/Powell rule [permitting
inconsistent verdicts] should apply when the
reason for the inconsistent verdicts cannot
be determined. In such cases, we should not
speculate as to whether the verdicts resulted
from jury lenity, compromise, or mistake not
adversely affecting the defendant. . . .
[Id. at 10-11 (citation omitted).]
However, the Grey Court did not apply the rationale of
Dunn/Powell in the matter before it because it concluded that the
reason for the jury's inconsistent verdicts was apparent in that
the trial court's confusing instructions led the jury to believe
that the defendant could be convicted of felony murder if found
guilty of conspiracy to commit aggravated arson, rather than the
actual predicate crime of aggravated arson. Id. at 14-15. The
Court in Grey, thus, reversed the defendant's felony murder
conviction. Id. at 17.
In the past, our courts have ruled that an exception to the
inconsistent verdict rule exists where an acquittal on one count
necessarily precludes the finding of an element of another
offense of which a defendant is convicted; our courts have
determined that such inconsistencies are fatal to the
convictions. See State v. Mangrella,
214 N.J. Super. 437, 441
(App. Div. 1986), certif. denied,
107 N.J. 127 (1987); State v.
Peterson,
181 N.J. Super. 261, 267 (App. Div. 1981), certif.
denied,
89 N.J. 413 (1982). The validity of this exception,
however, is not clear.
First, in State v. Burnett,
245 N.J. Super. 99, 112 (App.
Div. 1990), we expressly rejected the exception as stated in
State v. Mangrella, supra, and State v. Peterson, supra:
To the extent that either Peterson or
Mangrella can be read to hold, as the
defendant here contends, that an acquittal on
one count of an indictment precludes the
finding beyond a reasonable doubt of a common
element of the offense charged in another
count of the same indictment and requires an
acquittal on the latter count, we disagree.
Instead we adhere to the principles announced
in Dunn and Powell which we are satisfied
have been endorsed by our Supreme Court in
Ingenito, Crisantos, and Ragland.
Moreover, in State v. Ortiz,
253 N.J. Super. 239, 246 (App.
Div.), certif. denied,
130 N.J. 6 (1992), we noted that even if
the defendant were acquitted of certain charges having an element
necessary to the charges for which he was convicted, there was
still sufficient evidence to support the convictions, and, thus,
the convictions must stand. Consequently, in Ortiz, we
implicitly indicated that the exception to the inconsistent
verdict rule was not valid.
More importantly, this exception does not make sense,
because if acquittals and convictions did not share common
elements, or if one was not a predicate for the other, then they
would not be truly inconsistent. As such, the exception
enunciated in State v. Peterson, supra, and State v. Mangrella,
supra, would swallow the inconsistent verdict rule as enunciated
in United States v. Powell, supra, and State v. Grey, supra. The
United State Supreme Court came to the same conclusion in United
States v. Powell, supra, and used the earlier Dunn v. United
States, supra, to demonstrate its point. See United States v.
Powell, supra, 469 U.S. at 67-68, 105 S. Ct. at 478,
83 L. Ed 2d
at 470. Similarly our Supreme Court in State v. Grey, supra,
intimated that the exception was invalid:
Defendant relies on State v. Peterson,
181 N.J. super. 261 (App. Div. 1981), certif.
denied,
89 N.J. 413 (1982), which qualified
the general rule of acceptance of
inconsistent verdicts by stating that unless
inconsistent verdicts preclude the
establishment of an element of an offense, an
acquittal does not affect the validity of a
conviction supported by sufficient evidence.
However, Peterson relied in part on the
reasoning of United States v. Hannah,
584 F.2d 27 (3d Cir. 1978), which was later
disapproved in Powell. In State v. Burnett,
245 N.J. Super. 99 (App. Div. 1990), the
court rejected the Peterson rule that an
acquittal on one offense that precludes the
finding of one or more elements of a second
offense invalidates a conviction on the
second offense because it believed that this
Court would apply the doctrine of
unreviewability even in such circumstances.
[State v. Grey, supra, 147 N.J. at 11.]
Even if the exception were valid, here the acquittal of defendant by the jury on the charge of possession of a handgun without a permit under the Twelfth Count did not necessarily vitiate an element of the charges in the other eleven counts. Despite defendant's contention that the jury could not have possibly determined that the prosecution failed to prove the absence of permit for the firearm, the jury could rationally have made such determination. As the trial court made clear in its jury instructions, the jury did not have to accept the statutory presumption in favor of the State that defendant did not have such a permit. Indeed, in light of the trial court's instruction that the State had to prove each element beyond a reasonable
doubt and the State's failure to present any evidence showing
that defendant did not have a permit, the jury could have
rejected the presumption and concluded that the State failed to
prove that element beyond a reasonable doubt, thus resulting in
defendant's acquittal on the Twelfth Count. If that were the
jury's finding, then the exception would not apply because
failure to have a permit was not an element of the other eleven
charges. In other words, if the jury did find that the State
failed to prove that defendant did not have a permit, then the
verdicts plainly were not inconsistent because of the permit
requirement in the Twelfth Count did not exist in the other
eleven charges. Cf. State v. Ortiz, supra, 253 N.J. Super. at
245-46 (finding that the jury could have determined that an
element in the crimes for which the defendant was acquitted, and
which was not an element in the crimes for which defendant was
convicted, had not been proven beyond a reasonable doubt).
Moreover, even if the verdicts are inconsistent, the reason
for their inconsistency is not clear. For instance, defendant
could have been acquitted of the charge in the Twelfth Count
because the jury determined that State did not prove that he did
not have a permit beyond a reasonable doubt (in which case the
verdicts were not inconsistent) or it could have found that
defendant did not knowingly possess a firearm. Yet, under State
v. Grey, supra, 147 N.J. at 10-12, when the reason for
inconsistent verdicts is not clear from the record, such verdicts
must be upheld if there is sufficient evidence to sustain a
conviction beyond a reasonable doubt on the offenses for which a
defendant was actually convicted. Here, there was sufficient
evidence presented in the State's case, particularly through the
eyewitness testimony of two of defendant's victims, to find
defendant guilty beyond a reasonable doubt of attempted murder,
the aggravated assaults, and possession of a weapon for an
unlawful purpose.
Consequently, we find that defendant's convictions on the
First through Eleventh Counts do not warrant reversal due to
defendant's acquittal on the Twelfth Count.
Accordingly, the judgment of conviction and order for commitment under review are affirmed.