STATE OF NEW JERSEY VS. MALIK R. SMITH (03-04-0824, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5001-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK R. SMITH,
Defendant-Appellant.
__________________________
Submitted October 11, 2017 – Decided November 16, 2017
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
03-04-0824.
Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Santoliquido,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant appeals from a May 21, 2015 order of the court
denying his application for post-conviction relief (PCR) without
an evidentiary hearing. We affirm substantially for the reasons
set forth by Judge Mark H. Sandson in his detailed written opinion.
A jury convicted defendant of a 2003 double-murder that
occurred when defendant was in the process of committing an armed
robbery in a bar. He shot and killed the bartender, who in turn
shot and killed another robber. The murder weapon was found
disassembled in defendant's girlfriend's residence. The
girlfriend testified against defendant as part of her plea
agreement. Defendant was sentenced to sixty-six and one-half
years in prison, fifty-one of the years to be served without
parole. We affirmed. State v. Smith, No. A-1539-06, (App. Div.
Jan. 9, 2009). Our Supreme Court denied defendant's petition for
certification, 205 N.J. 520 (2011). We granted the appeal of his
timely PCR application because "his PCR counsel ignored
defendant's arguments contained in his pro se PCR brief" and did
not provide the PCR judge with the complete trial transcript.
State v. Smith, No. A-4371-11 (App. Div. June 19, 2014). We
remanded to the trial court, which denied relief after oral
argument.
Defendant now appeals, raising the following issues:
POINT I: THE PCR COURT ERRED WHERE IT FOUND
THE DEFENDANT DID NOT ESTABLISH A PRIMA FACIE
CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO
THE FAILURE OF TWO JURORS TO DISCLOSE DURING
VOIR DIRE THEIR PRE-TRIAL KNOWLEDGE OF THE
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DEFENDANT AND THE CRIME, THEREBY REQUIRING AN
EVIDENTIARY HEARING.
POINT II: THE PCR COURT ERRED WHERE, WHEN
DECIDING THAT THE TRIAL COURT'S EX PARTE POST-
CONVICTION COMMUNICATION WITH THE JURY WAS
PROCEDURALLY BARRED, IT DID NOT CONSIDER
WHETHER A FUNDAMENTAL INJUSTICE RESULTED FROM
THE FAILURE OF THE TWO JURORS TO DISCLOSE
DURING VOIR DIRE THEIR PRETRIAL KNOWLEDGE OF
THE DEFENDANT AND THE CRIME.
POINT III: THE DEFENDANT INCORPORATES HEREIN
ALL OF HIS REMAINING ARGUMENTS FOR POST-
CONVICTION RELIEF.
New Jersey courts follow the rule formulated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
show ineffective assistance a defendant must identify acts or
omissions showing unreasonable professional judgment, and then
must show that these errors had a prejudicial effect on the
conviction. State v. Fritz, 105 N.J. 42, 58 (1987). The same
standards are applied to ineffective assistance of appellate
counsel claims. State v. Harris, 181 N.J. 391, 518 (2004).
In reviewing claims of ineffective assistance of counsel,
courts apply a strong presumption that defense counsel "rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, supra,
466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"[C]omplaints 'merely of matters of trial strategy' will not serve
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to ground a constitutional claim of inadequacy . . . ." Fritz,
supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471,
489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075
(1963), overruled in part on other grounds by, State v. Czachor,
82 N.J. 392, 402 (1980)). "The quality of counsel's performance
cannot be fairly assessed by focusing on a handful of issues while
ignoring the totality of counsel's performance in the context of
the State's evidence of defendant's guilt." State v. Castagna,
187 N.J. 293, 314 (2006). "As a general rule, strategic
miscalculations or trial mistakes are insufficient to warrant
reversal 'except in those rare instances where they are of such
magnitude as to thwart the fundamental guarantee of [a] fair
trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22,
42 (1991)). "[A]n otherwise valid conviction will not be
overturned merely because the defendant is dissatisfied with his
or her counsel's exercise of judgment during the trial." State
v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187
N.J. at 314).
Both PCR counsel, who submitted a brief, and defendant, via
a pro se brief and an undated letter to the PCR court, set forth
a wide variety of claims of ineffective assistance of trial and
appellate counsel, as well as various alleged errors committed by
the trial court. Defendant claimed he was given constitutionally
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ineffective assistance of trial counsel because his lawyer failed
to: 1) communicate the State's plea offer; 2) present key witnesses
on behalf of defendant or adequately cross-examine the State's
witnesses; 3) object to the absence of a Bible when the witnesses
testified; and 4) request a mistrial after the first day of
deliberations when the jury advised that it was "deadlocked."
Defendant claimed his appellate attorney was ineffective by
failing to raise the following appellate issues: 1) the trial
court allowed the State, over objection, to mischaracterize the
evidence and introduce personal expression or beliefs; 2) the
trial court should have charged the jury on the lesser included
offense of attempted robbery; 3) the trial court should have
permitted into evidence the entire transcript of the 911 call; 4)
the trial court should have dismissed the indictment because it
was based on perjured testimony; and 5) the trial court should
have dismissed the conspiracy count because the State did not
present evidence of an overt act.
Defendant repeated his claims of trial error in his undated
letter to the PCR court. PCR counsel argued to the PCR court that
the trial judge erred in: 1) having improper ex parte contact with
the jury post-verdict; 2) denying defendant a fair trial based on
two jurors failing to disclose their pre-trial knowledge of
defendant and details of the case; 3) providing erroneous jury
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instructions, and 4) failing to provide proper curative
instructions.
Defendant argues before us on appeal that he was entitled to
an evidentiary hearing regarding these same issues. Judge Sandson
reviewed the issues raised in detail and discussed why no issue
raised a prima facie showing meriting an evidentiary hearing. "If
the court perceives that holding an evidentiary hearing will not
aid the court's analysis of whether the defendant is entitled to
post-conviction relief . . . or that the defendant's allegations
are too vague, conclusory, or speculative to warrant an evidentiary
hearing . . . then an evidentiary hearing need not be granted."
State v. Marshall, 148 N.J. 89, 158 (1997).
The PCR judge, who was furnished with the entire trial
transcript, reviewed in detail the most significant issues raised
and we affirm on the basis of his thorough decision. With regard
to the issues raised by defendant not addressed with specificity
by the PCR judge, none had sufficient merit to require discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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