State v. Moore

• Decision Date: 14 April 1994
• Citation: 273 N.J.Super. 118,641 A.2d 268
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Clarence MOORE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 118

273 N.J.Super. 118

641 A.2d 268

STATE of New Jersey, Plaintiff-Respondent, v. Clarence MOORE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 7, 1994.

Decided April 14, 1994.

Matthew Astore, Deputy Public Defender II, argued the cause for appellant (Susan L. Reisner, Acting Public Defender, attorney).

Nancy A. Hulett, Deputy Atty. Gen., argued the cause for respondent (Deborah T. Poritz, Atty. Gen. of New Jersey, attorney).

Before Judges J.H. COLEMAN, MUIR, Jr., and LEVY.

The opinion of the court was delivered by

MUIR, Jr., J.A.D.

Defendant appeals the denial of his post-conviction relief petition. We affirm.

The post-conviction relief petition came a little over two years after this court affirmed defendant's convictions on three counts of aggravated sexual assault, two counts of robbery, and one count of burglary but directed non-merger of the sexual assault convictions.

The appeal rejected contentions that certain prosecutorial comments required reversal; that the trial court erred in ruling defendant's prior convictions, one of which was carnal abuse, were admissible to attack defendant's credibility; that the trial court erred in denying acquittal, judgment notwithstanding the verdict, and new trial motions; that the trial court erred in admitting the victim's in-court identification of defendant on grounds the State failed to comply with the dictates of State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), and the photographic arrays were unduly suggestive; that the sentence was excessive; and that the trial court erred in denying a change of venue or the empaneling of a foreign jury.

On September 4, 1991, after granting defendant permission to file an overlength brief, the Supreme Court denied defendant's petition for certification. Thereafter, the Court denied a motion for reconsideration. The same public defender who represented defendant on the applications to the Supreme Court has represented him on the trial and appellate phases of the post-conviction relief petition.

Defendant on this appeal contends:

POINT I

THE NEW JERSEY COURT RULES DO NOT PRECLUDE DEFENDANT CLARENCE MOORE FROM POST-CONVICTION RELIEF IN THE MATTER AT BAR.

A. Since The Issues Raised In The Petition For Post-Conviction Relief Were Not Previously Adjudicated And Those Constitutional Issues Are Of Substantial Import, R. 3:22-5 Does Not Bar Relief.

B. Since The Issues Contained In The Petition For Post-Conviction Relief Could Not Have Been Raised On Direct Appeal, R. 3:22-4 Does Not Preclude Relief.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL BY COUNSEL'S FAILURE TO ALLEGE AS ERROR MANY INSTANCES OF PROSECUTORIAL MISCONDUCT.

A. The Prosecutor Improperly Referred To Matters Outside The Evidence And He Virtually Testified Regarding His Personal Opinion As To The Veracity Of Testimony And The Guilt Of Defendant.

B. The Prosecutor Misstated The Law And Diluted The Burden Of Proof When He Told The Jury That Guilt Beyond A Reasonable Doubt Meant That "The Odds Are" Defendant Did It.

C. The Prosecutor Repeatedly Disparaged And Ridiculed The Defense And Defense Counsel.

D. Cumulative Error.

POINT III

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL BY COUNSEL'S FAILURE TO ALLEGE AS ERROR THE TRIAL COURT'S PRECLUSION OF TRIAL COUNSEL'S CHALLENGE

OF THE RACIAL COMPOSITION OF DEFENDANT'S PETIT JURY PANEL.

POINT IV

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

I

Defendant, both in his brief and at oral argument, characterized the evidence of guilt as "shockingly slight." We recognize such assessments are shaded by the viewer's perspective. We begin therefore by reviewing the pertinent State's evidence.

On January 14, 1986, some time after 1:20 a.m., 25-year-old M.A. was viciously assaulted by a man in the bedroom of her cottage in Somers Point. M.A. went to bed that night only to be awakened by a male who grabbed her by the neck. The male demanded money, and M.A. removed $8 from her purse and gave it to him. When M.A. could produce no more money, the man became angry. He ordered her to undress. Despite the man's assurance she would not be hurt if she did as she was told, the man penetrated her anally after she complied with his directions to roll over on her stomach and then kneel on her hands and knees. The man then ordered her to roll over and he penetrated her vaginally. He then forced her to perform fellatio on him until he ejaculated. Still angered by lack of money, the man forced her to again perform oral sex until he achieved an erection. He then ordered her to kneel on the bed and "shake" her rear in the air while someone outside watched. He warned her if she did not do this "he would come back and do it again or kill" her. M.A. remained in her bed for four hours fearful the man was still in the house.

Finally, she arranged to have the police called and, when the police arrived, M.A. described her attacker. She described him as a black male, about 5'8"' to 5'10"' tall, late twenties to early thirties, very muscular and strong. (There is no dispute by defendant that the description could apply to him.) She also said her attacker had been wearing blue jeans. Further, she described him as having some facial hair on the sides of his face.

While the bedroom was dark, there was enough outside light "to see a face." Also, although she was not wearing her contact lenses that corrected her nearsightedness, she stated the attacker was "very close" to her, close enough for her to see him and his face. Defendant, on the original appeal, as he does now, suggests the victim's vision was impaired because she was not wearing her contact lenses. However, M.A. testified she could see without her contacts, that she had driven without them, and her vision did not prevent her from seeing things close to her.

When M.A. could not give the police composite artist sufficient information to develop a composite sketch, she suggested hypnosis, thinking it "might help [her] remember, in more detail, his face." With the aid of hypnotically enhanced memory, she could vividly recall her attacker's facial features. She thereafter was able to positively identify defendant as her assailant both in court and on three occasions in out-of-court photographic arrays. She described the hypnotic enhancement as making her attacker's face "much clearer" with "the features ... more detailed." She also testified she initially could not positively recognize her assailant without the hypnosis. There is nothing in the record to suggest either the police or the doctor assisting the hypnosis in any way suggested what the assailant might look like.

As a result of the hypnosis, M.A. also recalled her assailant wore a tan suede jacket with dirt around the pockets. A subsequently executed search warrant at defendant's residence turned up a tan suede sweater jacket with pockets along with several pairs of blue jeans.

To paraphrase our original opinion, this evidence, if the jury found M.A. credible, was more than sufficient for the jury to find defendant guilty beyond a reasonable doubt. As our case law has so often stated, the issue of credibility is for the jury. State v. Ingenito, 87 N.J. 204, 211, 432 A.2d 912 (1981). It is pertinent to note that defendant's disagreement with the jury's credibility finding does not make the State's evidence "shockingly slight."

Defendant postulates that the ineffective assistance of appellate counsel claim entitled him to a post-conviction evidentiary hearing that would demonstrate his judgment of conviction would be overturned. Arguing since the ineffective assistance of appellate counsel claim could not have been previously raised, the trial court erred when it denied him the opportunity to present the opinion of a legal expert--a lawyer with appellate experience--that original appellate counsel was not only deficient but that this court would probably have overturned his conviction had the deficiency not occurred. The predicate for the deficiency claim is appellate counsel's failure to raise three categories of issues, all of which could have been raised and would be procedurally barred but for the constitutional attiring of the petition in ineffective assistance of counsel clothing.

II

Ineffective assistance of counsel claims have found a niche in the post-conviction relief procedure. They have been found particularly suitable to the procedure because they often cannot reasonably be raised in prior proceedings. See State v. Preciose, 129 N.J. 451, 460, 609 A.2d 1280 (1992). Their unsuitability for direct review is because they center on collateral issues involving allegations and evidence that lie outside the trial record. Ibid. Consequently, ineffective assistance of counsel claims, particularly ineffective assistance of appellate counsel, are congruous with the exceptions to the procedural bar of R. 3:22-4 because they (1) implicate issues that could not have been reasonably raised in prior proceedings; (2) involve infringement of constitutional rights; or (3) present exceptional circumstances involving a showing of fundamental injustice. See State v. Mitchell, 126 N.J. 565, 584, 601 A.2d 198 (1992). Defendant's petition argued only the first two circumstances.

Defendant's contention that he could not have raised the ineffective assistance of appellate counsel (a public defender pool attorney) issue before his petition is an apparent distortion. Upon affirmance of his conviction by this court, the public defender turned the case over to a Deputy Public Defender II. That attorney then filed an overlength brief in connection with defendant's petition for certification to the Supreme Court. One of the issues raised in that brief was the "egregious pervasive prosecutorial misconduct." The brief did not raise the...