STATE OF NEW JERSEY VS. BRIAN E. KILLION (13-03-0720, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5691-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN E. KILLION,
Defendant-Appellant.
_______________________
Submitted January 19, 2021 – Decided February 17, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 13-03-0720.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (William P. Cooper-Daub, Deputy Attorney
General, of counsel and on the brief; Sara M. Quigley,
Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Brian E. Killion appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we affirm.
A jury convicted defendant of thirty-four counts of a thirty-nine-count
indictment that charged him with various degrees of sexual assault, endangering
the welfare of numerous children, and related offenses. On March 27, 2014, the
trial judge sentenced defendant to an aggregate eighty-five-year prison term,
subject to an eighty-five percent parole disqualifier under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed, and in an unpublished opinion we affirmed in part
and reversed in part, dismissing two counts, reversing "the sentencing under
NERA on three counts, and remand[ing] for resentencing and a further hearing"
regarding two other counts. State v. Killion, No. A-5025-13 (App. Div. April
26, 2017) (slip op. at 2). Defendant filed a petition for certification, which the
New Jersey Supreme Court denied on October 10, 2017. State v. Killion, 231
N.J. 220 (2017).
After our remand and defendant's resentencing on October 26, 2017, to an
eighty-year aggregate term with forty-five years subject to NERA, defendant
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appealed again but this time limited it to his sentence. An Excessive Sentence
Panel of this court affirmed. State v. Killion, No. A-2747-17 (App. Div. June
4, 2018).
The facts underlying defendant's convictions are set forth in our opinion
on direct appeal and need not be repeated here. See Killion, slip op. at 2-11.
For our purposes, we only note that on direct appeal, appellate counsel raised
eight issues in his merits brief, four additional arguments in the reply brief, and
his submissions were supplemented by defendant's pro se brief that addressed
five additional issues. Among the issues raised by appellate counsel were an
argument that the trial judge did not adequately cure comments by the prosecutor
that "portrayed the defendant and his trial attorney as liars" and a challenge to
the sufficiency of the evidence that supported defendant's conviction under the
indictment's fourth count. Among the issues raised by defendant in his appellate
pro se supplemental brief was a challenge to the jury charge that defendant
claimed was "erroneous," "not legally accurate," or "factually . . . supported by
the evidence."
Defendant filed a PCR petition on August 1, 2018, in which he argued he
received ineffective assistance of counsel (IAC) at trial and on appeal. He also
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raised arguments about his search and seizure rights being denied and the trial
judge's failure to "recuse himself."
As to appellate counsel, he contended that his attorney failed to raise
issues about comments made by the prosecutor during closings about defendant
not testifying and about "Brady and discovery violations." He also argued that
appellate counsel "did not adequately communicate with" defendant, failed to
spend any time with him or accept his telephone calls, or "address any of
[d]efendant's concerns" or even "learn [d]efendant's name." In addition, he
stated that appellate counsel failed to pursue defendant's request to adjourn a
June 4, 2018 "hearing" so that he could discuss "strategy" with counsel. As to
trial counsel, while defendant raised numerous issues, they were unrelated to his
claims against appellate counsel or those he raises before us on appeal from the
denial of PCR.
In an amended petition and brief filed on defendant's behalf, defendant
added that his appellate counsel "failed to argue that the trial judge erred by
denying [defendant's] motion for a mistrial following the prosecutor's closing
argument" based upon "the prosecutor wholly undermin[ing] the presumption of
innocence and the right to post-arrest silence." For that reason and those stated
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by defendant in his earlier submission, PCR counsel argued that defendant was
entitled to a new trial.
Judge Benjamin Podolnick entered an order filed on June 18, 2019,
denying defendant's petition without an evidentiary hearing. The judge
explained his reasons in a comprehensive eighteen-page letter opinion that
accompanied his order. This appeal followed
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL WHEN
COUNSEL FAILED TO APPEAL PROSECUTORIAL
MISCONDUCT ON THE COMMENTS REGARDING
DEFENDANT'S PRESUMPTION OF INNOCENCE
AND DEFENDANT'S CONSITUTIONAL RIGHT TO
REMAIN SILENT.
A. APPLICABLE LAW.
B. APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO APPEAL
DEFENDANT'S MOTION FOR A MISTRIAL
BASED UPON COMMENTS MADE BY THE
PROSECUTOR REGARDING HIS PRESUMPTION
OF INNOCENCE.
C. APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO APPEAL
DEFENDANT'S MOTION FOR A MISTRIAL
BASED UPON COMMENTS MADE BY THE
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PROSECUTOR REGARDING HIS
CONSTITUTIONAL RIGHT TO REMAIN SILENT.
In a supplemental brief defendant filed directly, he adds the following
points:
POINT I
INEFFECTIVE ASSISTANCE OF COUNSEL
DENIED DEFENDANT HIS CONSITUTIONAL
RIGHTS TO A FAIR TRIAL AND EFFECTIVE
COUNSEL.
INEFFECTIVE ASSISTANCE OF COUNSEL DUE
TO FAILURE TO ARGUE A CONFUSING,
INCONSISTENT AND CONTRADICTORY JURY
CHARGE THAT VIOLATED DEFENDANT'S
RIGHTS REQUIRING A NEW TRIAL. (NOT
RAISED BELOW).
APPELLATE ATTORNEY WAS INEFFECTIVE
DUE TO FAILURE TO RECOGNIZE AND ARGUE
THE STATE'S FAILURE TO MEET ITS BURDEN OF
PROOF OF GUILT BEYOND REASONABLE
DOUBT. (NOT RAISED BELOW).
POINT II
NEWLY DISCOVERED EVIDENCE REQUIRES A
NEW TRIAL.
POINT III
PCR COUNSEL FAILED TO MEET THE
STANDARD SET BY R. 3:22-6(d).
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We are not persuaded by any of defendant's contentions about appellate
counsel; as to the balance of these arguments, we conclude that they are not
properly before us as they were not raised before the PCR judge or are not
cognizable in a first petition for PCR, or they are without any merit.
We review de novo an appeal from the denial of PCR without an
evidentiary hearing. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div.
2014). As a reviewing court, we "can conduct a de novo review of both the
factual findings and legal conclusions of the PCR court . . . [because] [a]ssessing
IAC claims involves matters of fact, but the ultimate determination is one of
law." State v. Harris, 181 N.J. 391, 419 (2004).
"The standard for an ineffective assistance of counsel claim is . . . the
same under both the United States and New Jersey Constitutions." State v.
Gideon, __ N.J. __, __ (2021) (slip op. at 14-15). To establish a violation of the
right to the effective assistance of counsel, a defendant must meet the two-part
test articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted
in State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that
counsel's performance was deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
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To meet the first prong, a defendant must show "that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment." Ibid. Reviewing courts indulge in a "strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689. The second prong of the Strickland/Fritz
test requires the defendant to show that counsel's errors created a "reasonable
probability" that the outcome of the proceedings would have been different if
counsel had not made the errors. Strickland, 466 U.S. at 694.
The Strickland/Fritz two-pronged standard also applies to claims of
ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super.
508, 513 (App. Div. 2007). The hallmark of effective appellate advocacy is the
ability to "winnow[] out weaker arguments on appeal and focus[] on one central
issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745,
751-52 (1983). A brief that raises every colorable issue runs the risk of burying
good arguments in a "verbal mound made up of strong and weak contentions."
Id. at 753. Importantly for purposes of this appeal, it is well-settled that failure
to pursue a meritless claim does not constitute ineffective assistance. State v.
Webster, 187 N.J. 254, 256 (2006). Appellate counsel has no obligation to raise
spurious issues on appeal. Ibid.
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With these guiding principles in mind, we turn to defendant's contention
about appellate counsel's IAC for his failure to appeal from the denial of trial
counsel's motion for a mistrial that was based on two comments made by the
prosecutor during summation. One comment allegedly regarded his
presumption of innocence and the other his right to remain silent. Defendant
argues that had the issue been raised on direct appeal then a further review could
have been conducted under the plain error standard, which he maintains he
would have met. We disagree.
At trial, following closing arguments, defense counsel moved for a
mistrial based on the two allegedly improper statements made by the prosecutor.
The trial judge denied the motion and agreed to give curative instructions .
In the first statement, the prosecutor did not expressly mention defendant
not testifying but addressed the numerous years over which defendant
committed his crimes. In doing so, she stated that defendant "thinks he's smart
because he's gotten away with this for [sixteen] years, but he's not that smart
because he's sitting right there." The trial judge denied the motion for a mistrial
but issued a curative instruction that stated the following:
You may have heard a reference made during closings,
something about the defendant can't be considered
smart because he's sitting here, and I'm telling you that's
an improper comment and you shouldn't consider that,
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the defendant has no burden to present anything to you
whatsoever. He need not answer the charge in any way.
The fact that he's here in court is as a result of the
indictment, and I told you about the indictment, it's a
charging document requiring him to answer the charges
made by the State. So you're not to conclude in any
way that he must therefore be guilty because he's here
in court, or he somehow did something wrong just
because he's been charged. It's for you to determine
whether or not he's guilty of the offenses charged based
only upon the evidence.
On PCR, Judge Podolnick reviewed the comment, agreed it was improper,
and considered the law applicable to prosecutorial misconduct, but found in light
of the trial judge's curative instruction that "no prejudice existed to [defendant]
once this curative instruction was delivered."
The second challenged comment made by the prosecutor during
summation related to an intercepted telephone call between the mother of one
of the victims and defendant. The prosecutor stated "sure [the mother] told him
off that night, and what did she tell us, and she was the only one who talked
about the phone call and she told us [defendant] said whatever [the victim] said
I did, I did." The trial judge denied the motion for a mistrial but gave the
following curative instruction:
[Y]ou may have heard a comment made during closing
arguments regarding the only evidence or testimony
you heard about the consensual [call] from [the victim's
mother] and no one else, and perhaps you might then
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conclude why didn't we hear from the other person on
the consensual [call] which allegedly is the defendant.
Again, the defendant has no obligation to say or do
anything here today, and that was an improper comment
and I'm going to ask you to disregard it in its entirety,
and I'm going to give you instructions about how you
may not use the defendant's decision not to testify
against him in any way, and pay close attention to that
instruction when I'm giving it to you in just a few
moments in the charge.
The trial judge's final charge to the jury also included the Model Jury
Charge as to defendant's election to not testify at trial.1
On PCR, Judge Podolnick noted that "it is clear from the transcript that
once the objection was made by defense counsel, the trial judge did not believe
that the prosecutor was attempting to comment on the defendant's right to
silence." Rather, the trial judge believed the statement was a direct response to
defense counsel's argument that the victim's mother had misrepresented the
nature of the call with defendant. The PCR judge observed that "it [was] quite
possible that the prosecutor was merely stating a fact and not intending to
comment on the defendant's right to silence." Judge Podolnick concluded that
insofar as the prosecutor's remarks on summation had any potential to prejudice
defendant, the trial judge's curative instructions eradicated that potential.
1
Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev.
May 4, 2009).
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Judge Podolnick also concluded that the outcome of the proceedings
would not have been different but for appellate counsel's decision to forgo the
issues on direct appeal. He concluded that even if appellate counsel raised the
issue, we "would have had no basis to overturn [defendant's] conviction on
appeal." According to the PCR judge, defendant had "not shown that the
outcome of the proceedings would have been different but for appellate
counsel's decision not to raise this issue on direct appeal. The [c]ourt thus finds
that appellate counsel was not ineffective for failing to raise this issue on direct
appeal."
Based on this record, we conclude from our de novo review that defendant
failed to make a prima facie showing of ineffectiveness of counsel within the
Strickland/Fritz test, substantially for the reasons expressed by Judge Podolnick
in his thorough decision. Accordingly, the judge also correctly concluded that
an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451,
462-63 (1992).
Turning to defendant's argument that appellate counsel did not raise an
issue on appeal about his conviction under the indictment's fourth count, we
conclude his contention is belied by the record, as that issue was in fact raised
and we rejected it in our earlier opinion. See Killion, slip op. at 14, 17-20.
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Moreover, as to defendant's arguments relating to jury instructions and newly
discovered evidence, we conclude they are not subject to our review as
defendant failed to raise them before the PCR judge. See State v. Robinson, 200
N.J. 1, 20 (2009). And, as to his contention about PCR counsel's alleged IAC,
such claims are better addressed in a second petition under Rule 3:22-6(d). State
v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175
N.J. 1, 4 (2002)).
To the extent we have not otherwise specifically addressed any of
defendant's remaining arguments, we conclude they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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