State of New Jersey v. Edward Peoples

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4965-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. July 6, 2016
APPELLATE DIVISION
EDWARD PEOPLES, a/k/a
RASHAWN WHITE, EDWARD D.
WHITE,
Defendant-Appellant.
__________________________
Submitted September 21, 2015 – Decided July 6, 2016
Before Judges Messano, Simonelli and
Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 06-08-2643.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Sara A.
Friedman, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the briefs).
Appellant filed a pro se supplemental brief.
The opinion of the Court was delivered by
SIMONELLI, J.A.D.
Defendant Edward Peoples appeals from the April 9, 2014 Law
Division order, which denied his petition for post-conviction
relief (PCR) without an evidentiary hearing. For the following
reasons, we affirm.
I.
In August 2006, a grand jury indicted defendant for
conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-
3(a)(1) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and (2) (count two); first-degree attempted murder, N.J.S.A.
2C:11-3 (count three); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count four); third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count six). The charges stemmed from the
shooting death of Rahman Jenkins in the parking lot of the
Baxter Terrace apartment complex in Newark. Defendant was
represented by Paul W. Bergrin, who, after defendant's
conviction and sentence, was suspended from the practice of law
in this State, convicted of federal criminal offenses, and
incarcerated in a federal prison for life.
Marquis Grimsley, defendant's girlfriend, Anyea Williams,
and co-defendant Joseph Richardson had given statements to the
police inculpating defendant in Jenkins's murder and were
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witnesses for the State. In August 2007, the Essex County
Prosecutor's Office (ECPO) began an investigation of alleged
witness tampering in defendant's case. During the
investigation, defendant's prison cellmate reported to the ECPO
that defendant asked him to assist in preparing affidavits to
send to witnesses saying that they lied, and provided
information on witness intimidation tactics defendant was using.
The cellmate also indicated that another inmate, Brandon Stokes,
had agreed to be a defense witness in exchange for Bergrin
representing him on his criminal appeal at a discounted fee even
though Stokes was not present at the shooting and had no
knowledge of Baxter Terrace.
Stokes was listed as a defense witness who defendant
proffered would testify that defendant was not in possession of
the gun and did not shoot Jenkins; however, Stokes told the ECPO
that he was not present at and did not witness the shooting.
Defendant concedes in his pro se supplemental merits brief that
Stokes did not implicate Bergrin in any unethical or criminal
conduct.
Another inmate, Gregory Smith, told the ECPO that defendant
was coaching him to be a defense witness. Smith also gave the
ECPO a map/diagram and prepared script that defendant gave him
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to tailor his testimony. Smith did not implicate Bergrin in any
unethical or criminal conduct.
Grimsley told the ECPO that defendant threatened him to
change his testimony and sent him an affidavit that said he lied
to the police. The ECPO also received a letter written by
defendant that contained threats to Richardson. Neither
Grimsley nor the letter implicated Bergrin in any unethical or
criminal conduct.
Williams was under subpoena and expected to testify for the
State that she saw defendant obtain a handgun just prior to the
shooting and walk towards the parking lot area where Jenkins was
killed and heard shots fired, following which defendant told her
that he shot Jenkins. On September 25, 2007, she told the ECPO
that defendant, his mother and his sister threatened her and
told her not to appear in court. She later provided a letter
she received from defendant, dated September 2, 2007, which
stated as follows:
I'm really about to come home I talked to
Paul today everything lookin[g] alright, he
said to make sure you come to court the
first day of my trial but just don't come
after that because if you don't come the
first day they just [going to] try to post-
pone my trial[] but if you come they [are
going to] think they got you and they [are
going to] start trial and once they start
they can[']t stop.
4 A-4965-13T1
Relying solely on this letter, the State filed a motion to
disqualify Bergrin based on a conflict of interest. The State
argued that defendant advised Williams to evade the State's
subpoena and not appear at trial at Bergrin's instruction, and
thus, both defendant and Bergrin attempted to tamper with
witnesses in violation of N.J.S.A. 2C:28-5(a)(2) and (4), and
Bergrin violated Rule of Professional Conduct 1.2(d). The State
submitted a certification from Williams in support of the
motion, which confirmed her receipt of the letter from defendant
and also stated that defendant threatened her with physical harm
if she testified against him. Williams did not say she had any
contact with Bergrin or that Bergrin had any direct or indirect
involvement with the letter or threats.
Defendant was assigned special counsel to represent him on
the motion. Bergrin filed opposition, but the record does not
reveal that defendant filed opposition. However, the record
reveals that defendant advised the court he wanted Bergrin to
continue representing him. The judge denied the motion, finding
there was no evidence of an organized plan that directly
connected Bergrin to instructing defendant to tamper with
Williams, and defendant wanted Bergrin to continue representing
him. The judge determined that defendant knowingly attempted to
induce Williams not to testify by instructing her not to appear,
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thus denying the State evidence. Accordingly, the judge ruled
the letter would be admissible at trial as evidence of
defendant's guilt.
The evidence of defendant's guilt was overwhelming. In
addition to Williams, at the trial, three eyewitnesses
identified defendant as the shooter. On April 15, 2008, a jury
found defendant guilty of murder (count two), attempted murder
(count three), unlawful possession of a weapon (count five), and
possession of a weapon for an unlawful purpose (count six), and
not guilty of conspiracy to commit murder (count one). The
State voluntarily dismissed count four charging defendant with
aggravated assault.
At sentencing on August 5, 2008, the trial judge merged
count six with count two and sentenced defendant to a sixty-
five-year term of imprisonment with an eighty-five-percent
period of parole ineligibility pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to
a concurrent twenty-year term of imprisonment with seventeen
years of parole ineligibility on count three, a concurrent five-
year term of imprisonment on count five, and imposed the
appropriate assessments and penalties.
Nearly a year after defendant's conviction, on June 16,
2009, Bergrin was suspended from the practice of law in New
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Jersey. See In re Bergrin, 199 N.J. 309 (2009). On November
10, 2009, a federal grand jury returned a superseding indictment
charging Bergrin and several co-defendants with numerous
offenses relating, in part, to the murder of an informant and
witness tampering in a drug-trafficking case. See United States
v. Bergrin, 650 F.3d 257 (3d Cir. 2011).
Defendant appealed his conviction and sentence. We
affirmed, but remanded for a hearing on potential juror taint.
State v. Peoples, No. A-5793-08 (App. Div. May 23, 2012) (slip
op. at 16-17), certif. denied, 212 N.J. 462 (2012). In our
opinion, we noted that defendant had tampered with Williams and
other witnesses. Id. at 8-11. We declined to address
defendant's ineffective assistance of counsel (IAC) argument
that Bergrin had a conflict of interest because of the federal
indictment. Id. at 14. Over two years after defendant's
sentencing, Bergrin was convicted in federal court and sentenced
to life imprisonment. See United States v. Bergrin, 599 F.
App'x 439 (3d Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct.
2370, 192 L. Ed. 2d 159 (2015).
Following a remand hearing in this matter, the trial judge
found no juror taint had occurred. Defendant did not appeal.
Instead, he filed a PCR petition, arguing that Bergrin rendered
IAC by failing to investigate and prepare a defense and instead,
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engaged in witness tampering. Defendant admitted there was
overwhelming evidence of his involvement in Jenkins's murder and
ample evidence he was involved with attempting to tamper with
the State's witnesses, but argued that the tampering was
conducted under Bergrin's guidance.1
In a pro se supplemental brief, defendant added that the
judge erred by allowing the jury unfettered access to videotaped
statements during deliberations; Bergrin was ineffective for
failing to object to this procedure; and Bergrin gave him
illegal and unethical advice to tamper with witnesses and
recruit false alibi witnesses. Lastly, defendant argued that
appellate counsel was ineffective during the remand hearing for
failing to raise specific questions regarding alleged juror
taint. In another supplemental brief, defendant added that
Bergrin failed to challenge both the State's selective
prosecution of defendant and the police coercion of Richardson.
Defendant did not raise any conflict of interest argument.
In an April 9, 2014 written opinion, the judge denied the
petition without an evidentiary hearing. The judge first found
1
Defendant also argued that he declined a plea offer of twenty
years as the result of Bergrin's assurances that "after all the
witnesses disappeared, or refused to cooperate, or witnesses
were manufactured as alibi witnesses, the State would be unable
to convict" defendant. However, there was no evidence that the
State made any plea offer.
8 A-4965-13T1
that defendant's claim of trial court error was procedurally
barred by Rule 3:22-4(a). Addressing the merits, the judge
found there was no evidence that the jury had unfettered access
to the videotaped statements; the law in effect at the time did
not preclude such access; and defendant failed to show how the
outcome would have been different.
The judge next determined there was no evidence implicating
Bergrin in witness tampering or that Bergrin gave defendant
illegal advice to tamper with witnesses. The judge found that
none of the witnesses with whom defendant tampered said that
Bergrin directly communicated with them or indirectly
communicated with them through defendant. The judge also found
that even if Bergrin's performance was deficient, defendant
failed to show that the outcome would have been different;
rather, defendant conceded there was overwhelming evidence of
his involvement in Jenkins's murder. Lastly, the judge found
there was no evidence supporting defendant's remaining IAC
claims against Bergrin and no merit to or evidence supporting
defendant's IAC claims against appellate counsel. This appeal
followed.
On appeal, defendant raises the following contentions in
assigned counsel's brief:
POINT I: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR
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[PCR] WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL
LEVEL.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
[IAC], EVIDENTIARY HEARINGS AND
PETITIONS FOR [PCR].
B. TRIAL COUNSEL DID NOT PROVIDE
ADEQUATE LEGAL REPRESENTATION TO
THE DEFENDANT AS A RESULT OF
COUNSEL'S FAILURE TO OBJECT TO
THE MANNER IN WHICH THE JURY WAS
GIVEN UNFETTERED ACCESS TO TWO
VIDEOTAPED STATEMENTS IN THE JURY
ROOM DURING DELIBERATIONS.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO CONDUCT ANY
REASONABLE PRE[-]TRIAL
PREPARATION OR INVESTIGATION,
INSTEAD CONVINCING THE DEFENDANT
TO ASSIST HIM IN ENGAGING IN
CRIMINAL CONDUCT DESIGNED TO
TAMPER WITH WITNESSES AND
FABRICATE TRIAL TESTIMONY.
D. THE DEFENDANT FAILED TO
RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
SINCE, AS A RESULT OF COUNSEL'S
CONDUCT ASSURING THE DEFENDANT HE
WOULD NOT BE CONVICTED AT TRIAL
AS LONG AS HE FOLLOWED HIS
INSTRUCTIONS AND ADVICE, HE
REJECTED THE STATE'S PLEA
RECOMMENDATION AND INSTEAD
PROCEEDED TO TRIAL, SUBSEQUENTLY
RECEIVING A [SIXTY-FIVE] YEAR
TERM WITH AN [EIGHTY-FIVE]
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PERCENT PAROLE DISQUALIFIER AT
SENTENCING, MORE THAN THREE TIMES
GREATER THAN THE STATE'S PLEA
OFFER.
In a pro se supplemental brief, defendant raises the
following contentions:
POINT I: [IAC] DUE TO TRIAL COUNSEL'S
ILLEGAL ADVICE, CRIMINAL CONDUCT,
AND LACK OF PREPARATION.
POINT II: [IAC] DUE TO TRIAL COUNSEL'S
MULTIPLE CONFLICTS.
POINT III: COUNSEL ASSIGNED TO THE APPELLATE
REMAND HEARING CONDUCTED ON
SEPTEMBER 28, 2012 WAS
INEFFECTIVE FOR FAILURE TO RAISE
SPECIFIC QUESTIONS FOR THE COURT
TO ASK THE ALLEGED TAINTED JUROR
THAT WERE PERTINENT TO THE ISSUE
AT HAND.
POINT IV: INEFFECTIVE ASSISTANCE OF DIRECT
APPEAL APPELLATE COUNSEL.
POINT V: THE CUMULATIVE EFFECT OF THE
ERRORS COMPLAINED OF RENDERED THE
TRIAL UNFAIR.
To establish an IAC claim, a defendant must satisfy the
two-pronged test formulated in Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987). First, a defendant must show "that counsel
made errors so serious that counsel was not functioning as the
counsel guaranteed . . . by the Sixth Amendment." Fritz, supra,
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105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, a defendant must prove that he suffered prejudice
due to counsel's deficient performance. Strickland, supra, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A
defendant must show by a "reasonable probability" that the
deficient performance affected the outcome. Fritz, supra, 105
N.J. at 58. "If [a] defendant establishes one prong of the
Strickland-Fritz standard, but not the other, his claim will be
unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
The mere raising of a claim of IAC does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199
(1999). "A defendant shall be entitled to an evidentiary
hearing only upon the establishment of a prima facie case in
support of post-conviction relief . . . ." R. 3:22-10(b). A
"prima facie case" requires that a defendant "demonstrate a
reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will
ultimately succeed on the merits[,]" ibid., and must be
supported by "specific facts and evidence supporting his
allegations." State v. Porter, 216 N.J. 343, 355 (2013); see
also Cummings, supra, 321 N.J. Super. at 170 (holding that "a
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petitioner must do more than make bald assertions that he was
denied the effective assistance of counsel"). "Because post-
conviction relief is not a substitute for direct appeal and
because of the public policy 'to promote finality in judicial
proceedings,' our rules provide various procedural bars." State
v. Echols, 199 N.J. 344, 357 (2009) (citations omitted) (quoting
State v. McQuaid, 147 N.J. 464, 483 (1997)).
"[A] petitioner may be barred from relief if the petitioner
could have raised the issue on direct appeal but failed to do
so, Rule 3:22-4[, or] the issue was previously decided on direct
appeal, Rule 3:22-5[.]" Ibid. The effect of Rule 3:22-4 is
that PCR will be precluded if any ground for relief could have
been raised at trial or on appeal. State v. Afanador, 151 N.J.
41, 50 (1997). We review a judge's decision to deny a PCR
petition without an evidentiary hearing for abuse of discretion.
State v. Preciose, 129 N.J. 451, 462 (1992).
We have considered defendant's contentions in Point I.B. of
assigned counsel's brief and in Points III, IV and V of
defendant's pro se supplemental brief in light of the record and
applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons expressed
by the judge in his written opinion.
13 A-4965-13T1
We reject defendant's contention in Point I.D. of assigned
counsel's brief regarding defendant's alleged rejection of a
plea offer. We reiterate there is no evidence the State made
any plea offer to defendant.
We also reject defendant's contention in Point II of his
pro se supplemental brief, raised for the first time on appeal,
that Bergrin had a conflict of interest because the ECPO was
actively investigating him for witness tampering. We decline to
consider questions or issues not presented to the trial court
when an opportunity for such a presentation was available unless
the matter involves the trial court's jurisdiction or is of
public importance. State v. Robinson, 200 N.J. 1, 20 (2009).
No exception applies here. In any event, for the following
reasons, the argument lacks merit.
Our Supreme Court has "adhered to a two-tiered approach in
analyzing whether a conflict of interest has deprived a
defendant of his state constitutional right to the effective
assistance of counsel." State v. Cottle, 194 N.J. 449, 467
(2008). "In those cases in which [the Court has] found a per se
conflict, prejudice is presumed in the absence of a valid
waiver, and the reversal of a conviction is mandated." Ibid.
However, the Court has limited findings of a conflict to cases
in which an attorney is "contemporaneously under indictment in
14 A-4965-13T1
the same county as his client, and being prosecuted by the same
prosecutor's office . . . absent a valid waiver by the client."
Id. at 473.
Defendant waived any conflict of interest when he advised
the court that he wanted Bergrin to continue representing him.
In addition, the ECPO investigation report reveals that
defendant was the focus of witness tampering, not Bergrin, and
none of the witnesses the ECPO interviewed implicated Bergrin in
defendant's witness tampering scheme. Moreover, the State did
not rely on the ECPO investigation to disqualify Bergrin, and
there never was any determination that Bergrin was involved in
defendant's witness tampering.
Insofar as defendant argues, as he did on direct appeal,
that Bergrin's conflict of interest stemmed from his federal
indictment, we reject that argument as well. A federal grand
jury returned an indictment in November 2009, two years after
defendant's conviction. There was no evidence as to when
federal authorities were investigating Bergrin and no evidence
that the ECPO participated in that investigation. Unlike in
Cottle, supra, where the defense attorney "was under indictment
and subject to prosecution during the entire period of his
representation," 194 N.J. at 466, there was no evidence that
Bergrin was contemporaneously under indictment at the same time
15 A-4965-13T1
as defendant, and Bergrin was not being prosecuted by the same
prosecutor's office. Accordingly, there was no conflict of
interest mandating reversal of defendant's conviction.
II.
We next address defendant's contention in Point I.C. of
assigned counsel's brief and Point I of defendant's pro se
supplemental brief that he is entitled to IAC relief based on
Bergrin's illegal and unethical advice to tamper with witnesses.
There is no doubt that defendant tampered with witnesses,
but there is no competent evidence that Bergrin was directly or
indirectly involved. Even if Bergrin was involved, defendant is
not entitled to IAC relief when he participated in the illegal
conduct or acquiesced in that conduct.
The notion that a defendant could successfully raise an IAC
claim when he engaged in illegal conduct in collusion with his
attorney or acquiesced in the attorney's illegal conduct has not
been squarely addressed by our courts. By way of analogy, our
Supreme Court has denied IAC relief to a defendant who claimed
that but for trial counsel's deficient advice concerning
sentencing consequences, and even though he was not guilty, he
would have pled guilty rather than go to trial. State v.
Taccetta, 200 N.J. 183, 192 (2009). The Court noted that "an
attorney would be engaged in professional misconduct if he or
16 A-4965-13T1
she knowingly assisted a client to perpetrate a fraud on the
court by assisting or encouraging a client to lie under oath."
Id. at 196. In denying IAC relief, the Court concluded as
follows:
If a trial court cannot accept a guilty
plea that is known to be false, then it
would be strange indeed for a PCR court to
vacate a jury verdict following a fair trial
on the ground that [the] defendant would
have taken an advantageous plea offer with a
limited sentence exposure if only he had
been given the opportunity to lie under
oath. A court cannot give its imprimatur to
perjury or in any way suggest that the
requirement of a truthful factual basis at a
plea colloquy is an empty formality.
[Id. at 197.]
As the Court further noted, "[j]ust because we are powerless to
control or eliminate every negative practice in our criminal
justice system does not mean that we must condone those
practices." Id. at 198.
Other jurisdictions have addressed the issue of a defendant
engaging or acquiescing in illegal conduct and afforded the
defendant no IAC relief. For example, in Arnett v. State, 938
P.2d 1079 (Alaska Ct. App. 1997), the defendant claimed that
trial counsel rendered ineffective assistance by illegally
advising him to abscond from trial and assisting him in
absconding. Id. at 1082. The Court of Appeals of Alaska held
17 A-4965-13T1
the defendant was not entitled to IAC relief, reasoning as
follows:
We have no doubt that a lawyer who counsels
a client to commit a crime for tactical gain
acts incompetently. But by the same token,
this form of advice falls so far beyond the
pale of anything that could conceivably be
considered legitimate legal assistance that
a defendant's voluntary reliance on it is
tantamount to a willing abandonment of
competent representation. A defendant who
voluntarily commits a crime on advice of
counsel ought not to be allowed to impute
blame to the attorney or to claim prejudice
stemming from the attorney's incompetence;
for in almost all such cases, the
defendant's own voluntary acts will be a
superseding cause of any resulting
misfortune.
[Id. at 1083.]
The court concluded that, even assuming there was attorney-
client collusion, "[t]o grant relief in this case would permit
[the defendant] to reap a windfall new trial on account of his
own [crime]. We cannot allow this tempting gambit for counsel
and client. In the circumstances alleged by [the defendant],
[the defendant] must remain responsible for his own misconduct."
Ibid. (third alteration in original) (citations omitted).
In DeHaven v. State, 618 So. 2d 337 (Fla. Dist. Ct. App.
1993), the defendant claimed that he presented differing
versions of the victim's shooting to trial counsel and counsel
said he preferred to use the version more favorable to the
18 A-4965-13T1
defendant. Id. at 339. The Florida District Court of Appeals
stated that whether or not the defendant's IAC claim was true,
[t]his motion does not present the picture
of a hapless defendant whose lawyer
knowingly or negligently ignored available
evidence in favor of a less viable defense,
nor of an unsophisticated individual
deceived by an overzealous or unscrupulous
advocate. It is an admission of having
knowingly perpetrated a fraud upon the
court. Even if it were true that counsel
joined in or encouraged such misconduct -
and we have only [the defendant's]
allegation this occurred - this might be a
matter for the Florida Bar, but would not
require vacation of [the defendant's]
conviction.
[Id. at 339-340.]
In Commonwealth v. McNeil, 487 A.2d 802, 807 (Pa. 1985),
the defendant claimed that trial counsel advised him to render
perjured testimony. Id. at 616-17. Finding the defendant
freely and deliberately chose to offer false testimony, the
Supreme Court of Pennsylvania held that IAC relief is not
available to a defendant who "attempts to reap a windfall new
trial on account of his own perjury". Id. at 618. The court
reasoned as follows:
[t]he criminal justice system cannot and
will not tolerate such an obvious and
flagrant affront to the integrity of the
truth determining process thinly disguised
under the rubric of ineffective assistance.
. . . [T]o hold otherwise would create a
situation wherein a defendant, by design,
could build into his case ineffective
19 A-4965-13T1
assistance of counsel claims, thus
guaranteeing himself a basis for a new trial
if the verdict were adverse to him.
[Id. at 618-19 (citation omitted).]
In Kelley v. State, 644 S.W.2d 571, 573 (Tex. Ct. App.
1982), defense counsel attempted to dispose of evidence.
Though describing counsel's action as "reprehensible," the Court
of Appeals of Texas denied IAC relief to the defendant, finding
that he acquiesced in the tactic. Id. at 574.
Guided by the above principles, we hold that a defendant
who participates in illegal conduct in collusion with his
attorney or acquiesces in the attorney's illegal or unethical
conduct is not entitled IAC relief. We will not tolerate what
amounts to a fraud on the court, and will not permit a defendant
who participates or acquiesces in his attorney's illegal or
unethical conduct to reap any benefit of IAC relief. To hold
otherwise would impermissibly permit a defendant to build an IAC
claim into his case, thus guaranteeing him a basis for reversal
of an adverse verdict.
Affirmed.
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