State v. Mells

OSTRER, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Ostrer and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 11-12-2140 and 11-12-2142. Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by OSTRER, J.A.D.

Defendant Andre Mells appeals from the trial court's denial of post-conviction relief after an evidentiary hearing on some of his claims. Mells collaterally challenges his convictions for first-degree purposeful murder and related second-degree weapons offenses.

On appeal, he contends that his trial counsel provided ineffective assistance by not obtaining his consent before urging the jury to consider lesser-included offenses, and by not filing a Brady motion where the State failed to preserve, or to provide the defense with, crime-scene video footage. He also argues that trial counsel ineffectively addressed inconsistencies in three eyewitnesses' descriptions, and responded ineffectively when one eyewitness quoted the victim's identification of defendant. Mells argues:

Brady v. Maryland, 373 U.S. 83 (1963).

POINT I

THE COURT ERRED IN FINDING THAT THE CLAIMS OF INEFFECTIVE ASSISTANCE DID NOT

PREJUDICE DEFENDANT AND WOULD NOT HAVE CHANGED THE RESULT OF THE TRIAL.

POINT II

THE COURT ERRED IN FAILING TO FIND COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO GET DEFENDANT'S PERMISSION TO ARGUE FOR THE LESSER INCLUDED CRIMES.

POINT III

THE COURT SHOULD ORDER A NEW TRIAL BECAUSE COUNSEL VIOLATED HIS SIXTH AMENDMENT RIGHT TO CHOOSE THE OBJECTIVE OF HIS DEFENSE. MCCOY V. LOUISIANA, 584 U.S. ___ (2018)[.] [(]NOT RAISED BELOW[)].

POINT IV

THE COURT ERRED IN FAILING TO FIND COUNSEL INEFFECTIVE FOR FAILURE TO FILE A MOTION FOR THE STATE'S FAILURE TO PRESERVE AND TURN OVER THE VIDEO RECORD. BRADY V. MARYLAND, 373 U.S. 83 (1963).

We affirm.

I.

We presume the reader's familiarity with the underlying case, which we detailed on direct appeal. State v. Mells, No. A-1035-14 (App. Div. Apr. 3, 2017) (Mells I). As we address the points on appeal, we will highlight relevant facts from the trial and the PCR hearing.

First, we consider Mells's argument that trial counsel ineffectively addressed inconsistencies in eyewitness testimony, as well as one eyewitness's disclosure that the dying victim named defendant.

Because the court rejected this aspect of defendant's petition without an evidentiary hearing, we review its related findings de novo. See State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014).

Three eyewitnesses testified at trial: Deborah Jones, Arlene Hopkins, and LaStarr LaGrier. Jones and Hopkins gave mutually-consistent testimony; but LaGrier, in a recorded statement, claimed she saw things that Jones and Hopkins did not.

Jones was a security guard and a resident at the apartment complex where the homicide occurred. She testified that her boyfriend dropped her off at the complex on an early afternoon in May. 1508" class="raw-ref">138 S. Ct. 1500, 1508 (2018).

Trial management is the lawyer's province: [c]ounsel provides his or her assistance by making decisions such as "what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence." Some decisions, however, are reserved for the client — notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal.

[Ibid. (citation omitted) (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)).]

Where does one place the decision to submit a lesser-included charge to the jury? The decision is tactical, drawing on an attorney's experience; yet it may affect the ultimate verdict. As Professor Uviller observed:

Apart from disagreements concerning the entry of an insanity plea, perhaps the most troubling source of contention is the decision whether to consent to submitting to the jury counts or charges lower than, or included in, the most serious count of the indictment. Tactically, the choice is whether to "go for broke," that is, have the jury vote up or down on the gravest charge, or to provide a possible locus of compromise. Part gamble, part experience, it is difficult to say whether this vital choice belongs among the defendant's reserved prerogatives or has been ceded to the wisdom and caution of counsel.

[H. Richard Uviller, Calling the Shots: The Allocation of Choice between the Accused and Counsel in the Defense of a Criminal Case, 52 Rutgers L. Rev. 719, 748 (2000) (footnote omitted).]

The ABA's Criminal Justice Standards used to suggest that the defendant, after conferring with counsel, should have the final word on whether to submit lesser-included offenses; but the Standards do so no longer. See Simeon v. State, 90 P.3d 181, 183-84 (Alaska Ct. App. 2004) (comparing ABA Standards for Criminal Justice, Standard 4-5.2).

ABA Standards "are guides to determining what is reasonable" in assessing reasonably effective assistance of counsel. Strickland, 466 U.S. at 688. The commentary to the 1980 standards stated:

It is also important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because this decision is so important as well as so similar to the defendant's decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses. For instance, in a murder prosecution, the defendant, rather than the defense attorney, should determine whether the court should be asked to submit to the jury the lesser included offense of manslaughter.

[ABA Standards for Crim. Just., Standard 4-5.2 cmt. at 4-68 (2d ed. 1980).]

By contrast, the 1993 standards stated only: "It is also important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury," and omitted the statement that the client's decision controls. ABA Standards for Crim. Just.: Prosecution Function & Def. Function, Standard 4-5.2 cmt. at 202 (3d ed.1993). The latest edition of the standards states that an attorney must defer to a client regarding "any other decision that has been determined in the jurisdiction to belong to the client." ABA Crim. Just. Standards for the Def. Function, Standard 4-5.2(b)(ix) (4th ed. 2017).

Neither defendant nor the State point to binding New Jersey authority on the issue of who — attorney or client — gets to decide whether to seek a lesser-included instruction. Nonetheless, without establishing a general rule for all situations involving lesser-included offenses, we are satisfied that defense counsel here provided effective assistance because, as the PCR court impliedly found, he conferred with defendant, and then exercised informed judgment to argue for a lesser-included offense in the face of "overwhelming" evidence that defendant was the shooter.

We recognize that the PCR court did not expressly find that defense counsel conferred with defendant about lesser-included offenses. But, the court implied as much, by crediting defense counsel over defendant, and by expressly finding that defense counsel conferred with defendant, albeit about affirmative defenses.

There is persuasive authority for that conclusion. See, e.g., Cannon v. Mullin, 383 F.3d 1152, 1167 (10th Cir. 2004) (rejecting ineffective-assistance claim where trial counsel asserted self-defense argument and, in the alternative, argued lesser included offense, stating that "whether to argue a lesser-included offense is a matter to be decided by counsel after consultation with the defendant"), abrogated on other grounds, Simpson v. Carpenter, 912 F.3d 542, 576 n.18 (10th Cir. 2018); Simeon, 90 P.3d at 184-85 (rejecting ineffectiveness claim where attorney declined to request lesser-included offenses and defendant did not show that tactical choice to be unreasonable).

Even if defense counsel did not disclose his strategy, we are unconvinced that failure alone would constitute ineffective assistance, particularly absent evidence that petitioner would have objected and dissuaded counsel. Some courts have held that the failure to confer need not render an attorney's decision regarding lesser-included offenses ineffective. See Mathre v. State, 619 N.W.2d 627, 628-30 (N.D. 2000) (rejecting ineffectiveness claim where trial counsel did not confer with the defendant before deciding not to seek instructions on lesser-included offense). In Van Alstine v. State, 426 S.E.2d 360, 363 (Ga. 1993), the court declined to find that the failure to consult regarding lesser-included crimes invariably constitutes ineffective assistance. Although noting that "it is critically important" that defense lawyers confer on such matters, the court concluded that defense counsel was not ineffective because no evidence suggested that the client would have rejected counsel's strategy had counsel consulted him. Ibid.

We acknowledge that some courts have held that defense counsel must defer to a client's wishes on the lesser-included question. See, e.g., People v. Brocksmith, 642 N.E.2d 1230, 1232 (Ill. 1994) (following the 1986 supplement to the ABA Standards). However, some defendants have complained (with varying results) when the attorney did defer. Compare In re Trombly, 627 A.2d 855, 855 (Vt. 1993) (rejecting argument that defense lawyer was ineffective "by requesting at the client's insistence that the court not instruct the jury that attempted manslaughter is a lesser included offense of attempted murder"), with Arko v. People, 183 P.3d 555, 560 (Colo. 2008) (reversing conviction where trial court deferred to "defendant's decision over the objection of defense counsel" and refused to give lesser-included instruction). --------

Defendant also misplaces reliance on the United States Supreme Court's decision in McCoy. In McCoy, the Court held that an attorney must abide by a defendant's expressed objection to a strategy of admitting guilt. 138 S. Ct. at 1509. An attorney's failure to do so is a structural error that is subject neither to harmless-error review nor to the Court's ineffective-assistance-of-counsel jurisprudence. Id. at 1510-11.

For three reasons, McCoy provides no help to defendant. First, defendant did not testify in the PCR hearing that he objected to counsel's decision to argue lesser-included offenses, although the PCR court impliedly found that counsel consulted with him. One of McCoy's holdings is directly on point: the Supreme Court held that when an attorney consults with a defendant who does not protest as McCoy did, but rather acquiesces in the strategy of admitting guilt, then counsel's implementation of the chosen strategy does not violate the client's Sixth Amendment rights. Id. at 1505, 1509 (discussing Florida v. Nixon, 543 U.S. 175 (2004)).

Second, in McCoy, the attorney actually admitted his client's guilt. But here, the PCR court found (with the support of sufficient credible evidence in the record) that Mells's trial counsel did not admit defendant's guilt. Rather, counsel urged the jury members to find that Mells did not shoot the victim. He did encourage them to convict him of a lesser-included offense — but only if they believed that Mells did shoot the victim.

Third, courts have declined to apply McCoy retroactively to collateral challenges of convictions. See Smith v. Stein, 982 F.3d 229 (4th Cir. 2020); Christian v. Thomas, 982 F.3d 1215 (9th Cir. 2020). Defendant presents no argument why we should do so here.

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION