STATE OF NEW JERSEY VS. YVONNE WALKER (12-01-0128, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0338-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YVONNE WALKER,
Defendant-Appellant.
______________________________
Submitted June 4, 2018 – Decided July 17, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 12-
01-0128.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Yvonne Walker appeals from the June 23, 2016 denial
of her petition for post-conviction relief (PCR). We affirm.
The facts surrounding the charged offenses are summarized in
the direct appeal State v. Walker, No. A-5613-12 (App. Div. Feb.
25, 2015), and we need not repeat them here. We focus our attention
on the facts pertaining to plaintiff's allegations in her PCR
petition regarding ineffective assistance at her trial for the
murder of Cassetta Blount.
On January 20, 2012, an Essex County Grand Jury indicted
defendant for: first-degree felony murder, N.J.S.A. 2C:11-3(a)(3);
first-degree murder, N.J.S.A. 2C:11-3(a)(1)&(2); first-degree
robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a
weapon, a knife, N.J.S.A. 2C:39-5(d); and third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
On January 22, 2013, the trial court conducted a Miranda1
hearing but denied defendant's motion to suppress the statement
she gave to police. Defendant was present for the suppression
hearing, but she asked to leave because she was upset. During
direct examination of the first witness, defense counsel asked for
a sidebar and stated, "I'm going to ask that [defendant] be allowed
to go in the hallway because she's told me . . . she's going to
have an outburst. It's going to be an issue at trial . . . . I
think she has a right not to be present, so I'm going to suggest
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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that the Court allow her to exercise that right." The judge spoke
with defendant: "you have a right not to be present. I understand
from your attorney . . . you wish not to be present . . . during
the hearing." Defendant said yes and was escorted out.
A jury trial was conducted between January 29 and February
6, 2013. Defendant was present for jury selection, and one of the
voir dire questions was whether prospective jurors would be
prejudiced against defendant because of her absence from the trial.
Further, during trial counsel's opening statement, she addressed
the issue directly with the jury, asking them not hold defendant's
absence against her.
During trial, defendant was rarely present. On the first day
of trial, after the jury was sworn, but before they were
instructed, defense counsel requested a break so her client could
exercise her right not to be in court for the openings. After the
jury instructions, counsel represented to the court, "[defendant]
was present for jury selection, . . . but as she did at the time
of the Miranda [h]earing she has indicated to me that . . . she
chooses not to be present at this time."
Defendant was absent the second day of trial. The transcript
is silent about whether defendant had affirmatively renewed her
decision not to appear. On the third day of trial, defendant was
present when court convened. The trial judge addressed her,
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asking, "you're back here again . . . We're ready to continue
with the trial. Uh, do you wish you be here . . . during the
course of the trial, or not?" Defendant said no, and left the
courtroom.
The defendant was not present for final jury instructions,
and the record is silent about whether defendant renewed her
decision not to appear. The judge informed the jury:
As you know, the defendant elected not to
testify at trial. It is her [c]onstitutional
[r]ight to remain silent. You must not
consider for any purpose or in any manner in
arriving at your verdict the fact that the
defendant did not testify. That fact should
not enter your deliberations or discussion in
any manner, at any time. Uh, and the same
goes . . . for the times she was not present
. . . defendant is . . . presumed innocent
whether or not she chooses to testify.
On February 6, 2013, the lawyers appeared before the judge
to address an issue about a juror. Defendant was not present at
this hearing, evidenced by the following colloquy:
Court: . . . Is she here?
Counsel: I don't believe so, Judge.
Court: You . . . want . . . to talk about the
juror without her present?
Counsel: That's fine, Judge.
However, later that day, when the jury presented the court with a
question, defendant was present.
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Defendant was convicted of first-degree murder, theft of
movable property, unlawful possession of a weapon, and possession
of a weapon for an unlawful purpose. She was acquitted of robbery
and felony murder. The record does not indicate whether defendant
was present for the verdict.
On March 27, 2013, the trial judge merged the weapons
possession charges with the murder charge, and sentenced defendant
to forty-five years in prison, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, for the murder conviction, and to five
years for the theft charge, to run concurrently. He found no
mitigating factors, and found aggravating factors one, three, six,
nine, and twelve; the aggravating factors preponderated the
mitigating factors. After her release, she will be subject to
mandatory parole supervision for five years.
Defendant appealed the conviction, asserting she was deprived
of her right to due process and a fair trial because the court:
(1) failed to dismiss a deliberating juror for financial hardship,
and (2) failed to properly charge the jury on defendant's absence
during trial. On February 25, 2015, we affirmed the conviction
and sentence for the murder charge, but reversed the conviction
for theft, changing it to a disorderly persons theft offense, and
remanded for resentencing. Walker, No. A-5613-12 (slip op. at
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17). On June 16, 2015, the Supreme Court denied certification.
State v. Walker, 222 N.J. 15 (2015).
On August 6, 2015, defendant filed a verified petition for
PCR. On January 15, 2016, PCR counsel filed an amended petition
on defendant's behalf asserting trial counsel was ineffective
because she (1) failed to communicate with defendant and review
discovery with her; (2) advised defendant not to attend trial and
did not advise her of the dangers of not attending; (3) failed to
request the model jury charge regarding her absence from trial;
and (4) failed to object to jury instructions not including the
above model jury charge.
The PCR judge granted defendant's request for an evidentiary
hearing, limited to two issues: (1) the waiver of defendant's
appearance at trial, and (2) trial counsel's pre-trial
communication with defendant. During the hearing, defendant
testified that over the entire time trial counsel had represented
her, beginning after her indictment, counsel visited defendant
"just three or four times," staying only "[twenty] minutes or
less." Defendant alleged counsel never went through discovery
with her, and counsel watched portions of her videotaped statement
with her, but defendant did not want to see all of the video
because it upset her.
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When she asked counsel if she had to be present at her trial,
counsel told her she did not have to be present at the trial,
saying "it’s also in your best interest if you’re not at your
trial because of [the] anger issue. She . . . didn’t want no
outbursts from me." Counsel did not explain to defendant how it
might hurt her case if she were not present or that the jury might
misperceive her absence. Defendant did not recall being present
for her Miranda hearing, nor asking if she could not be present
while her statement was played. Further, defendant did not recall
being asked by the court whether she wanted to be present for
summations. She also did not remember if she was present for the
jury instructions.
Defendant's public defender testified after being assigned
to represent defendant, she visited the jail often to speak with
defendant, and the length of her visits would "depend on what
[they] were talking about." She and defendant had numerous
discussions about how to proceed with her defense, and whether
defendant would be able to contain herself when hearing the
evidence against her.
Counsel expressed concern "there was going to be some type
of explosion in front of the jury and we had many discussions
about that." She "suggested to [defendant] that . . . if she
didn’t think she could contain herself, if she didn’t think she
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could not have an outburst upon hearing different witnesses make
allegations against her, that perhaps it would be in her best
interest not to be present during the testimony." These
conversations happened more than once, and were "ongoing because
the trial was ongoing." Ultimately, defendant made the decision
not to be present at trial.
When she was not in the courtroom during the trial, defendant
stayed in the holding cell at the courthouse, and was present
during jury selection so the jury would "know that she was not a
fugitive." Counsel "went into the holding cell to speak to
[defendant] on every break, at lunchtime, morning break, afternoon
break . . . [and] tried to . . . keep her informed to make her
feel that she knew what was going on despite the fact that she
wasn’t in the courtroom."
Counsel requested a jury instruction to educate the jurors
about defendant's right to not have her absence held against her.
The instruction given was "not exactly what [she] requested,"
however, the jury was told they were not to hold defendant's
absence against her.
On June 30, 2016, the judge denied defendant's petition for
PCR. The judge found credible trial counsel's testimony that her
meetings with defendant were longer than twenty minutes, and that
she had concerns over defendant's potential for negative and
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damaging reactions to testimony. However, it was not apparent
counsel informed defendant of the risks of not being present at
trial, and the record did not support a finding that defendant
made a knowing and intelligent waiver of her right to be present
at trial. Defendant was asked only twice about her desire not to
be present, and the PCR judge found the trial court did not meet
its obligation "to question defendants about their understanding
of the nature and consequences of their absence from the trial."
Ultimately, the PCR judge found although trial counsel's
incomplete advice regarding defendant's absence from trial
rendered her assistance ineffective, defendant did not satisfy the
second prong of the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984). Defendant had demonstrated trial counsel was
ineffective, but she did not demonstrate a reasonable probability
that but for counsel's unprofessional errors, the result of the
proceeding would have been different, because of the strong
evidence against her. State v. Fritz, 105 N.J. 42, 52 (1987)
(quoting Strickland, 466 U.S. at 694).
Defendant also argued counsel's alleged failure to insist on
the model jury charge relating to defendant's absence from trial
rendered her assistance ineffective. The PCR judge acknowledged
the issue had already been addressed on direct appeal and similarly
rejected the argument finding counsel informed the jury of its
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obligations regarding defendant's presence or absence in her
opening statement, and in her summation, and there were questions
in the jury voir dire about a defendant being absent from her own
trial. Moreover, defendant had not proven she was prejudiced
because of the jury instruction. This appeal followed.
On appeal, defendant argues the following:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION
BECAUSE [DEFENDANT'S] TRIAL COUNSEL WAS INEFFECTIVE.
A. [Defendant] Was Prejudiced By Trial
Counsel's Waiver of [Defendant's] Various
Appearances in Court.
B. Trial Counsel Was Ineffective When She
Failed To Communicate With [Defendant], Which
Denied [Defendant] the Opportunity to
Participate In Her Defense.
C. Trial Counsel Was Ineffective When She
Failed To Request The Model Jury Instruction
Related To [Defendant's] Failure To Attend
Trial.
Our review of a PCR claim after a court has held an
evidentiary hearing "is necessarily deferential to [the] PCR
court's factual findings based on its review of live witness
testimony." State v. Nash, 212 N.J. 518, 540 (2013). On appeal
from denial of a petition for PCR, our review is limited, affording
deference to the motion judge's findings so long as they are
"supported by sufficient credible evidence in the record." Ibid.;
see State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's
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findings should be disturbed only if they are so clearly mistaken
that the interest of justice demand intervention and correction.")
(citation omitted). We defer to the PCR judge's factual findings
"which are substantially influenced by his opportunity to hear and
see the witnesses and to have the feel of the case." Elders, 192
N.J. at 224 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
"[PCR] is New Jersey's analogue to the federal writ of habeas
corpus," State v. Preciose, 129 N.J. 451, 459 (1991), affording
an adjudged criminal defendant a "last chance to challenge the
fairness and reliability of verdict." Nash, 212 N.J. at 540
(citation omitted); see R. 3:22-1. A defendant must establish the
right to PCR by a preponderance of the credible evidence.
Preciose, 129 N.J. at 459. In order to satisfy this burden, the
defendant "must do more than make bald assertions that he [or she]
was denied the effective assistance of counsel. He [or she] must
allege facts sufficient to demonstrate counsel's alleged
substandard performance." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999).
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
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
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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. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
[Strickland, 466 U.S. at 687; Fritz, 105 N.J.
at 58 (adopting the standard in Strickland).]
Defendant argues her trial counsel was ineffective for not
requesting the model jury instruction on defendant's absence from
the trial, and for inadequately communicating with her.
A court assesses counsel's performance with extreme
deference, "requiring 'a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.'" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S.
at 688-89). "To rebut that strong presumption, [defendant] must
establish . . . trial counsel's actions did not equate to sound
trial strategy." State v. Castagna, 187 N.J. 293, 314 (2005)
(citation omitted). "Mere dissatisfaction with a counsel's
exercise of judgment is insufficient to warrant overturning a
conviction." Nash, 212 N.J. at 542 (citing State v. Echols, 199
N.J. 344, 358 (2009)). This standard applies "not only to
counsel's performance in conducting the trial itself but to all
stages of the prosecution from the very outset of the
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representation." Pressler & Verniero, Current N.J. Court Rules,
comment 1.1 on R. 3:22-2.
The PCR judge determined trial counsel was a credible witness,
and she adequately communicated with defendant. This
determination, and the denial of defendant's claim on these counts,
is entitled to our deference without a showing that these findings
"are so clearly mistaken that the interest of justice demand
intervention and correction." Elders, 192 N.J. at 244 (citation
omitted).
Additionally, defendant asserts the PCR court erred in
finding she was not prejudiced by her absence from the trial,
because it denied her the opportunity to communicate with counsel,
to assist in her defense, and assist with cross-examination of
witnesses.
To prove prejudice, "actual ineffectiveness . . . must
[generally] be proved." Fritz, 105 N.J. at 52. Petitioner must
show the existence of "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."
Ibid. "[N]ot every error that conceivably could have influenced
the outcome undermines the reliability of the result of the
proceeding. Strickland, 466 U.S. at 693 (citation omitted).
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Prejudice may be presumed only when "the accused is denied counsel
at a critical stage of [her] trial" or "counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing."
United States v. Cronic, 466 U.S. 648, 659, 667-68 (1984); see
also State v. Savage, 120 N.J. 594, 639 (1990).
Here, defendant had the benefit of trial counsel during every
critical stage of her trial, as counsel was present from just
after the indictment through sentencing. There was no showing
trial counsel did not "subject the prosecution's case to meaningful
adversarial testing." Cronic, 466 U.S. at 667-68. Trial counsel
cross-examined every witness introduced by the state, and made
every effort to attempt to show that defendant acted in
passion/provocation instead of knowingly or purposefully. There
is no presumption of prejudice stemming from counsel's trial
performance here.
Nor has defendant made a showing that there was a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Fritz, 105
N.J. at 52. Though the jury was exposed to defendant at jury
selection, and despite the very real danger that defendant would
have had a violent outburst in front of the jury, defendant asserts
that seeing her at trial would have "humanized" her and made it
more likely the jury would find passion/provocation instead of
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first-degree murder. However, there was substantial evidence
against defendant, including her statement, the witness testimony,
and the DNA evidence. We note the strategy employed by trial
counsel was at least partially successful, as defendant was
acquitted of robbery and felony murder.
Moreover, we rejected the issue of counsel's alleged failure
to insist on the model jury charge relating to defendant's absence
from trial on direct appeal, and we need not address it anew here.
In conclusion, the PCR judge made a determination, detailed
in a lengthy and thorough written opinion, that defendant was not
prejudiced by any error made by trial counsel. Defendant has not
made a showing that this determination is "so clearly mistaken
that the interest of justice demand intervention and correction."
Elders, 192 N.J. at 244.
Affirmed.
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