NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
By leave granted, the State appeals from an August 6, 2015 order granting defendant Alvin Love's petition for post-conviction relief (PCR) following a remand and an evidentiary hearing. We affirm.
Defendant and others were charged in a Camden County indictment in connection with their alleged involvement in the September 20, 2005 robbery of a delicatessen in Collingswood. Tried separately, in March 2007, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1.1 He was later sentenced to an extended term of incarceration of forty years, with an eighty-five percent period of parole ineligibility. We affirmed defendant's conviction on direct appeal, State v. Love, No. A-0116-07 (App. Div. Dec. 23, 2009), and the Supreme Court denied certification, State v. Love, 201 N.J. 442 (2010).
Defendant filed a pro se PCR petition in June 2010. Assigned counsel subsequently filed a supplemental brief and certification. Defendant argued, among other things, that his trial counsel was ineffective for failing to file a motion pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). Specifically, defendant contended that trial counsel should have moved to suppress his statement to the effect of "I guess you got me now" after police showed him a videotape from the store's security camera allegedly depicting him and his accomplice committing the robbery. Following oral argument held over three days, the PCR judge, who was not the trial judge, delivered a brief oral decision dismissing the petition, which he then memorialized in a February 24, 2012 order.
Defendant appealed, focusing primarily on the Miranda issue. As we noted in our unpublished opinion:
[Defendant] argues that the PCR judge erred in determining that he failed to satisfy the second Strickland2 prong, which requires a showing that, but for counsel's error, there is "a reasonable probability" that the result would have been different. He highlights the fact that, during the first day of the oral argument, the judge had taken the position that [defendant's] statement was "very, very inculpatory" and that it was hard to say "with a straight face that taking [it] out of the equation probably would not have affected the result." The judge subsequently reached the opposite conclusion. It may be that the judge changed his mind, but we note that, in delivering his brief oral opinion, the judge was still of the view that the statement was "not a de minimus piece of evidence," but rather "a very important piece of evidence." In addition, he described the State's case as "substantial" but "not overwhelming."
[State v. Love, No. A-4662-11 (App. Div. Oct. 1, 2014) (slip op. at 7-8).]
We concluded that a more complete explanation of the judge's decision was required for our review. Id. at 8. Accordingly, we reversed and remanded with instructions that the judge hold an evidentiary hearing on the merits of defendant's Miranda claim, followed by a more detailed decision explaining his factual findings and legal conclusions. Ibid.
On remand, the court heard testimony from defendant's trial attorney and two of the case detectives. Defendant's trial counsel testified that he informed the trial judge that he contemplated filing a Miranda motion. The State objected on the basis that defendant made the subject statement voluntarily and that it was not in response to any specific questioning so as to trigger the protection afforded by Miranda. The trial court adopted the State's position and essentially indicated that it would not entertain a defense request for a Miranda hearing. Accordingly, no formal motion seeking to suppress defendant's statement was ever filed.
At the time of the delicatessen robbery, Detective James Bruno was a member of the Essex County Prosecutors Office's Major Crimes Unit. He testified at the remand hearing that he and Detective Deritis of the Collingswood Police Department interviewed defendant, who was also known as "Butchie." According to Bruno, he and Deritis introduced themselves to defendant and advised him of his Miranda rights. Defendant replied that he did not wish to speak with them or answer any questions, and requested an attorney. Consequently, Bruno immediately stopped the questioning and placed defendant back in the holding cell. Bruno did not produce any written record relating to the Miranda warnings he administered. Referring to his report, Bruno further indicated that co-defendant Gene Edmonds, Jr. was separately interviewed by Detectives Archerly and Correll.
Detective (now Corporal) Edward Correll, Jr. testified at the remand hearing that it was the standard practice of the Collingswood Police Department to memorialize in writing when a suspect is informed of his Miranda rights. According to Correll, he and other detectives, including Archerly, Bruno, and Deritis, interviewed defendant. Contrary to Bruno, Correll testified that he read defendant his Miranda rights, although he too did not produce any written documentation. Correll further indicated that he showed defendant the store security tape after he was read his Miranda rights.
Correll had also testified during defendant's March 2007 trial. At trial, Correll was asked whether he interviewed any of the defendants arrested for the robbery. He replied: "I recall I interviewed one of the defendants. His name was Mr. Edmonds." Correll stated that he administered Edmonds his Miranda rights "us[ing] the standard Miranda [r]ights card," which was marked as an exhibit in evidence at trial. He further testified that he also spoke with defendant and showed him the store security video. Defendant then "stated to the effect [] I guess you got me now." Prior to showing defendant the video, he read defendant his Miranda rights. He recalled that defendant "wasn't very cooperative."
After the evidentiary portion of the remand hearing was completed, the PCR judge concluded that this was a "legitimate Miranda issue, [as to] which there should have been a Miranda hearing." The judge also stated that he found no purpose in the police showing defendant the video other than to evoke an inculpatory response from him. In a May 20, 2015 letter, the judge advised counsel that, upon reviewing the testimony, he "heard nothing that made clear that [] [d]efendant, after being Mirandized, waived his Miranda rights before being shown the video which elicited the inculpatory statement." Accordingly, the judge scheduled further oral argument on "the second prong of Strickland."
The judge heard oral argument on July 31, 2015, and rendered an oral opinion in which he concluded that defendant also met Strickland's second prong. Labelling it a "close call," the judge reviewed the evidence adduced at trial to support defendant's conviction. The judge had previously viewed the store security video, which he characterized as "a grainy black and white. . . . It's hardly the type of thing that you would say that does the trick, that's him." He further found that "I couldn't say definitively it was [defendant], but I couldn't say definitively it wasn't him."
The judge described other weaknesses in the State's proofs. He noted that none of the proceeds from the robbery were found on defendant. Edmonds, who had previously implicated defendant in the robbery, recanted much of that inculpatory detail at trial. The judge also viewed skeptically the out-of-court identification of defendant, at which the deli owner stated: "I think that's the guy that took the bag."
Ultimately, the judge determined that "[t]he State's case was not overwhelming" when defendant's statement was removed from the equation. The judge identified the appropriate standard under the second-prong of Strickland as presenting the question whether the improper admission of the statement at trial was "sufficient to undermine confidence in the outcome." He concluded that "when you take the confession out, it meets the test." The judge entered a memorializing order on August 6, 2015, granting defendant's PCR petition, vacating his convictions, and setting a $250,000 bail pending retrial on the charges that did not result in an acquittal at the 2007 trial. The judge also granted the State a stay while it sought leave to appeal, which we granted on September 15, 2015.
On appeal, the State argues that defendant failed to establish, under the first prong of Strickland, that a Miranda violation occurred and that counsel was ineffective in not seeking to suppress defendant's inculpatory statement. The State further argues that even if trial counsel was deficient in failing to move for a Miranda hearing, defendant was unable to establish prejudice sufficient to satisfy Strickland's second prong. The State contends that its proofs at trial were "overwhelming," including the store video depicting the robbery, the victim's out-of-court and in-court identifications of defendant, and the testimony of co-defendant Edmonds.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992).
Our standard of review gives deference to the PCR judge's fact findings based on witness testimony. State v. Nash, 212 N.J. 518, 540 (2013). "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. However, a "PCR court's interpretation of the law" is afforded no deference, and is "reviewed de novo." Id. at 540-41 (citing State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005)).
With regard to the first prong of Strickland, the State conceded during oral argument before the PCR court "that at some point in time, [defendant] invoked his Miranda rights." At the remand hearing, there was confusing and/or contradictory testimony as to which of the detectives apprised defendant of those rights. Bruno testified that he and Deritis read defendant his Miranda rights. Defendant then indicated that he did not wish to speak with them or answer any questions, and requested an attorney. Correll recalled that he read defendant his Miranda rights. At trial, he stated that defendant "wasn't very cooperative." In any event, Correll's testimony at both the trial and the remand hearing establishes that he showed defendant the store security video after defendant was read his Miranda rights.
"Once an accused invokes the right to counsel, that right must be `scrupulously honored.'" State v. Chew, 150 N.J. 30, 61 (1997) (quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975)); State v. Melendez, 423 N.J.Super. 1, 23 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012). That "entails terminating all questioning `until counsel has been made available [or] unless the accused [] initiates further communication, exchanges, or conversations with the police.'" Chew, supra, 150 N.J. at 61 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)). The State bears the burden to prove, beyond a reasonable doubt, that interrogating officers have complied with Miranda, and a waiver of the right to remain silent is voluntary, knowing, and intelligent. State v. Yohnnson, 204 N.J. 43, 59 (2010); State v. Presha, 163 N.J. 304, 313 (2000). The trial court must examine the totality of the circumstances. State v. Adams, 127 N.J. 438, 447-48 (1992).
Here, we find nothing in the record of either the trial or PCR proceedings to establish that defendant knowingly and voluntarily waived his Miranda rights after they were read to him. Rather, all testimony is to the contrary. Further, no record evidence contradicts the PCR court's sound conclusion that Correll thereafter showed defendant the videotape as a means to evoke an incriminating response from him. Thus, we find sufficient evidence in the record to support the conclusion that there was a Miranda violation, and that trial counsel was ineffective in failing to formally move to suppress defendant's incriminating statement.
More troublesome in this case is the second prong of the Strickland analysis, which we next consider. We begin by noting that the PCR judge applied the correct standard. This requires that a convicted defendant "must show that there is 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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52.
We recently elaborated on Strickland's second prong as follows:
In discussing what constitutes prejudice to a defendant, the Strickland Court reasoned: "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Thus, the Court expressly declined to require a defendant to show "counsel's deficient conduct more likely than not altered the outcome in the case[,]" Id. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697, holding such an "outcome-determinative standard" imposed too heavy a burden where the attorney's lack of professionalism removes "one of the crucial assurances that the result of the proceeding is reliable." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697.
Instead, the Court adopted the now-familiar standard: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Court made clear that "reasonable probability" is not the same as more likely than not; rather, "reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. Thus, "[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698.
In making a prejudice finding, the PCR court must consider "the totality of the evidence before the judge or jury." Id. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Ibid.
[State v. L.A., 433 N.J.Super. 1, 14 (App. Div. 2013).]
Applying these standards to the record developed before the PCR court, we are satisfied that there is sufficient evidence in the record to support the PCR judge's determination that defendant satisfied the second, or "prejudice," Strickland prong. We will not restate here the evidence presented at defendant's trial that led to his conviction. Instead, we incorporate by reference the salient facts of the case as we described in our opinion affirming defendant's conviction on direct appeal, Love, supra, Docket No. A-0116-07, slip op. at 2-5, and which we repeated in our opinion remanding defendant's PCR petition for an evidentiary hearing, Love, supra, Docket No. A-4662-11, slip op. at 2-5. We conclude that, absent defendant's statement, this record fails to support the State's position that the proofs against him were overwhelming.
The State points to the store's security video that shows the robbery. We note that we have not been supplied with the video, nor have we had occasion to view the defendant. In contrast, the PCR judge viewed the video, and observed defendant in court on multiple occasions. Under these circumstances, we defer to the judge's factual findings. Nash, supra, 212 N.J. at 540. The judge described the quality of the videotape as "grainy," and he was not convinced to any degree of certainty that defendant was depicted in it. In any event, ultimately this presents an issue for the jury's determination.
A jury must also determine the credibility of co-defendant Edmonds, who had previously implicated defendant but at trial testified that he was intoxicated and therefore unable to recall anything he told the police following his arrest. Also, as noted by the PCR judge, when arrested defendant did not possess any of the robbery proceeds.
To be sure, the victim positively identified defendant at trial, which if accepted by the jury may well suffice to sustain defendant's conviction. However, the victim's prior out-of-court identification of defendant pales in comparison to his identification of co-defendant Neil Hunter. When shown a photo array, the deli owner identified Hunter and said he was "200 percent sure" that Hunter brandished the gun during the robbery. When presented with another series of photographs five days later, the victim selected defendant, saying less assuredly that: "I think this is the guy who took the money with the other guy."
We share the PCR judge's view that it is a "close call" whether Strickland's second prong is satisfied under the facts presented. Nonetheless, it cannot be gainsaid that defendant's admission to the effect of "I guess you got me" is highly inculpatory. Ultimately, the State may be able to prevail even without that damning statement. In its absence, however, we are unable to conclude that the State's proofs are overwhelming. We further determine that admission of the statement at trial was "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Accordingly, the PCR petition was properly granted, and a new trial on the charges was properly ordered.
Affirmed.
