STATE OF NEW JERSEY v. FAHEEM PICKETT

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. FAHEEM PICKETT, Defendant–Appellant.

DOCKET NO. A–2267–11T2

Decided: September 13, 2013

Before Judges Fisher and Koblitz. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Fredric M. Knapp, Morris County Acting Prosecutor (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Following a trial in 2006, during which the jury heard and considered a set of stipulated facts regarding ownership of a stolen vehicle, defendant was convicted of third-degree theft, N.J.S.A. 2C:20–3, and second-degree eluding, N.J.S.A. 2C:29–2(b).  In his direct appeal, defendant unsuccessfully argued the jury was erroneously instructed on how to evaluate defendant's confession and that the sentence imposed was excessive.1  See State v. Pickett, No. A–5375–06 (App.Div. Dec. 26, 2008).

In May 2009, defendant filed a pro se post-conviction relief (PCR) petition, arguing, without specificity, that he was denied the effective assistance of counsel.   Appointed counsel provided further amplification, arguing in a brief filed in December 2010 that defendant's trial attorney was ineffective in entering into a stipulation without determining whether the stipulated facts were accurate and without adequately discussing the stipulation and its consequences with defendant.   Defendant also argued that trial counsel was ineffective in failing to move for a dismissal of the indictment based upon the submission to the grand jury of improper evidence and in failing to object to the content of the eluding instructions given to the jury.   The PCR judge denied the petition for reasons set forth in a written opinion.

In appealing the denial of his PCR petition, defendant presents the following arguments:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.   THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

A. DEFENDANT PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN ENTERING THE STIPULATION SINCE COUNSEL UNDERTOOK NO INVESTIGATION TO CONFIRM THE FACTS SET FORTH IN THE STIPULATION.   MOREOVER, THE FACTS IN THE STIPULATION WERE ERRONEOUS AND PREJUDICED THE DEFENSE.   THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

B. DEFENDANT PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN ENTERING THE STIPULATION WITH–OUT REVIEWING THE STIPULATION WITH DEFENDANT AND WITHOUT SECURING DEFENDANT'S AGREEMENT.   THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED FOR AN EVIDENTIARY HEARING.

C. DEFENDANT HAS PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT APPELLATE COUNSEL WAS INEF–FECTIVE IN FAILING TO MOVE FOR DISMISSAL OF THE INDICTMENT.   THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

D. DEFENDANT HAS PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT APPELLATE COUNSEL WAS INEF–FECTIVE.   THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

We find insufficient merit in these arguments to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add only the following comments regarding whether trial counsel was ineffective with regard to the stipulation of facts.

Initially, we briefly observe that, to obtain post-conviction relief based on the ineffectiveness of counsel as defined by the federal constitution, a defendant must show not only that his attorney's performance fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), but also 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.   This same standard is applied in determining whether an attorney was ineffective within the meaning of our state constitution.  State v. Fritz, 105 N.J. 42, 58 (1987);  see also State v. Loftin, 191 N.J. 172, 198 (2007).   Although the PCR judge has provided cogent and persuasive reasons as to why defendant's PCR petition failed to meet the first aspect of this test, we affirm chiefly because defendant has not and cannot meet the second aspect.

The trial record, which included defendant's confession, reveals that, on January 6, 2006, defendant and a confederate, James Lance, drove to Morris Township in a Dodge Intrepid;  defendant needed parts for his Jeep and Lance knew where a Jeep could be found in Morris Township.   In his confession, defendant admitted he punched out the door lock in a red Jeep Cherokee in Morris Township and started the vehicle with a screwdriver.   The theft was reported by the homeowner and when police encountered the two vehicles – the stolen red Jeep and the Intrepid – their drivers attempted to elude capture by speeding away at highly excessive speeds.   During this high speed chase, the Intrepid collided with a police vehicle on an access ramp to Route 24, causing damage to both vehicles.   The Intrepid's driver ran for the red Jeep, which its driver put in reverse and backed rapidly down the ramp.   Police officers chased the Intrepid's driver on foot, but that individual was able to get to the Jeep. The officers on foot radioed this information and soon other police vehicles in the area located and pursued the Jeep on Route 24.   This chase ended when the Jeep lost control while exiting Route 78, colliding with a Chatham police vehicle in the process.   Both defendant and Lance fled from the scene on foot but were soon apprehended.   Through the testimony of various police officers, the State successfully convinced the jury that defendant was the driver of the stolen Jeep.

Lying at the heart of this appeal is the fact that defendant, through counsel,2 entered into a stipulation with the prosecutor.   This stipulation identified the owner and user of the Jeep, its license plate number;  it also memorialized that, on the evening in question, the vehicle's user – Darren Kempf, a college student then at his parents' home – heard:

a beep coming from the area of the driveway of his residence.   He looked out his window and saw what he thought was a white or Spanish male wearing a hoodie sweatshirt over his head looking around the Cherokee.   That individual then entered the Cherokee and the vehicle started.

Mr. Kempf also saw a large dark-colored SUV accompanying the male who was now in the Cherokee.   This other vehicle was running and was facing Independence Way so that Mr. Kempf could not see how many occupants were in the SUV. Mr. Kempf believes the SUV was a Ford Expedition.

The Jeep Cherokee was locked but there was an extra set of keys in the glove compartment.

Upon seeing all of this, Mr. Kempf alerted his mother, ․ relayed these facts to her and she called 9–1–1.

Mr. Kempf does not know the defendant, Mr. Pickett.   Mr. Kempf did not give anyone permission to take or use his Jeep.

We agree with the PCR judge that even if defendant was not adequately advised about the stipulation or even if his attorney failed to conform with professional norms in entering into this stipulation, it cannot be said that the stipulation's admission into evidence caused any appreciable harm within the meaning of the Strickland /Fritz test.

Clearly, the thrust of the defense was not to argue to the jury that the Jeep was not stolen – a fact the prosecution could have easily proven if put to the burden – but to suggest a reasonable doubt about whether defendant was the Jeep's driver following its theft.   In that vein, counsel ably asserted throughout his summation that the prosecution's proofs regarding the identity of the Jeep's driver were insufficient.   Viewed in that light, the stipulation was quite inconsequential if not entirely benign.   Indeed, the stipulation may have been more helpful than hurtful to the defense because it memorialized Kempf's inability to provide an identification of either occupant, let alone the driver, while conceding only facts easily provable.   We, thus, find no merit in defendant's arguments regarding the stipulation, and as previously noted we insufficient merit in defendant's other arguments to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

1.  FN1. On the eluding conviction, the trial judge imposed an aggregate persistent-offender prison term of eighteen years, nine without parole, consecutive to any period of parole revocation for a prior offense;  on the theft conviction, the judge imposed a five-year term concurrent to the term imposed on the eluding conviction but consecutive to whatever sentence would be imposed on the parole violation.

2.  FN2. Although a copy of the stipulation is not contained in the record on appeal, the transcript of the events preceding both the judge's preliminary instructions to the jury and the attorneys' opening statements suggests that defendant also signed the stipulation (and a parenthetical included by the reporter in the transcript reveals that defendant and counsel “confer [red]”;  the transcript, however, does not reveal the content of the discussion or the amount of time counsel and client spent in conferring):THE COURT:  ․ Do you have a stipulation?[THE PROSECUTOR]:  Yes, Judge.[DEFENSE COUNSEL]:  I didn't have ․ my client hasn't signed it yet, but if I can ․THE COURT:  Your client hasn't signed it?․[THE PROSECUTOR]:  I prepared it for signature from his client.   I've done it that way in the past, Judge, so –(Attorneys confer.)( [Defense counsel] and defendant confer.)THE COURT:  Now, while – while Mr. Pickett looks [the stipulation] over, as I said to you – as I said to you earlier ․ I would say to the jury when they first come out before I give them the [preliminary instructions] that the parties have entered into a stipulation marked as a joint exhibit, J–1.Counsel agreed to this process, and in the course of his preliminary instructions the judge read the entire stipulation to the jury.

PER CURIAM

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