STATE OF NEW JERSEY VS. DIONTE POWELL (13-09-0422, WARREN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2163-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DIONTE POWELL, a/k/a
DIONTE MONTEL POWELL,
DIANTE S. POWELL, HOTTIE,

     Respondent-Appellant.
____________________________

                    Submitted March 16, 2021 – Decided March 31, 2021

                    Before Judges Mawla and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Warren County, Indictment No. 13-09-0422.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique Moyse, Designated Counsel, on the
                    brief).

                    James L. Pfeiffer, Warren County Prosecutor, attorney
                    for respondent (Dit Mosco, Assistant Prosecutor, of
                    counsel and on the brief).

PER CURIAM
      Defendant Dionte Powell appeals from an October 1, 2019 order denying

his petition for post-conviction relief (PCR). We affirm.

      We described the facts, which led a jury to convict defendant and a co-

defendant, Tahir Sutton, of robbery, burglary, and other charges in a prior appeal

as follows:

                     In the early morning hours of March 15, 2013,
              two men wearing dark clothing, hoodies, masks, and
              gloves entered the employee breakroom of a
              convenience store gas station. Both were carrying
              handguns and one held a backpack. Once inside, the
              men encountered two employees and demanded money.
              The two men took approximately $1000 from the
              employees and some cigarettes and cigar packages from
              the store shelves. As the men ran from the store, one
              of them dropped his gun and a piece of it broke off
              when it hit the floor. The man retrieved the gun, but
              left the broken piece behind.

                     Approximately forty minutes later, a patrol
              officer using a radar device observed a car traveling
              over the speed limit. The officer activated his overhead
              lights and siren, but the driver of the car refused to stop.
              The officer pursued the vehicle until it crashed into a
              telephone pole. Four occupants got out of the car and
              all but one ran away. The officer was able to detain a
              female passenger. The officer saw that the rear window
              of the car was broken, there was a small sledgehammer
              on the backseat, and the ignition had been broken with
              a screwdriver. The officer also observed a backpack on
              the rear floor of the car.



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                                           2
                  At the police station, the female passenger
            identified [defendant] as the driver of the car and Sutton
            as one of the passengers. She told the police that she
            called [defendant] to ask for a ride to her mother's
            house. Shortly after she got into the car, the police
            chase began.

                  The police located the registered owner of the
            car, who gave his written consent to a police search of
            the vehicle and all of its contents, including "[a]ny and
            all containers found therein." Inside the backpack, the
            police found two handguns, packages of cigars and
            cigarettes, two ski masks, and other clothing. One of
            the guns was broken and the piece found at the store fit
            the missing part of the gun. Sutton's thumb print was
            found on the exterior of the car. DNA found on one of
            the ski masks matched Sutton, and DNA on the other
            mask matched [defendant]. DNA on cigarette butts
            found in the car also matched Sutton.

                   The police set up a surveillance outside the
            female passenger's home. At approximately 6:00 a.m.,
            the police saw [defendant] and Sutton walking down
            the street. Their physical characteristics and clothing
            matched the robbery suspects. The police arrested
            defendants. A search incident to that arrest disclosed
            that each defendant was carrying approximately $500.

            [State v. Sutton, Nos. A-5597-14 and A-0414-15 (App.
            Div. Sep. 22, 2017) (slip op. at 1-3).]

      This appeal is related to a motion by defendant's counsel, joined by

Sutton's counsel, on the first day of trial seeking to sever the trial and try each

defendant separately pursuant to Bruton v. United States, 

391 U.S. 123

(1968).

Specifically, defendant's counsel argued Sutton's defense was that he conceded

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                                        3
to being in the vehicle but denied being at the robbery. Counsel expressed a

concern either Sutton or his counsel in opening to the jury might inculpate

defendant by stating defendant was present in the vehicle with him or that

defendant committed the robbery.        Counsel asserted Sutton's defense was

"inconsistent with [his] theory of the case, that [defendant] was not in that

vehicle. It sabotages my defense strategy." Defendant's counsel explained

Sutton's concession was problematic because "when they are arrested and found

together at 6:10 a.m. . . . there is overwhelming inference drawn by the jury as

to our clients being together in those moments beforehand when this alleged car

chase took place that are incurable through any instruction as to confession."

      The prosecutor opposed the motion and pointed out the female passenger

who was apprehended following the chase would be testifying on behalf of the

State "and she specifically puts [defendant] as the driver and . . . Sutton as being

in the passenger seat." The prosecutor argued even if Sutton or his counsel

implicated defendant, Sutton would be subject to cross-examination and

confronted with the fact he had implicated defendant previously and the judge

could cure any statement by Sutton's counsel by reminding the jury that

counsel's comments are argument and not evidence. The prosecutor concluded

"[s]o the only thing that these[] jurors . . . are going to be permitted to do, is


                                                                              A-2163-19
                                         4
consider the evidence as against both defendants." The prosecutor also argued

severance was improper because "[t]he evidence . . . in this case would be

identical in both trials."

      The trial judge denied the motion and made detailed findings, explaining

his decision as follows:

                   In this case, pending for two years and two days
             now, the [c]ourt is asked to sever . . . [defendant]'s trial
             from that of co-defendant Sutton on the day trial is to
             begin.

                     The initial application is made on Bruton
             principles, somewhat loosely applied. . . . [I]n Bruton
             . . . the United States Supreme Court indicated that an
             incriminating extrajudicial statement of a co-defendant
             denies the defendant the right of cross-examination.
             That is to say where one defendant in a pretrial
             extrajudicial statement implicates himself and
             incriminates his co-defendant, the co-defendant is
             denied his right of confrontation because he cannot
             cross-examine his co-defendant on the pretrial
             extrajudicial statement.

                   Here, the confrontation clause problem is not
             implicated. There is no out-of-court statement or a core
             confession of . . . Sutton which in any way implicates
             [defendant].

                     Here, what we have is speculation as to what
             counsel may concede in an opening statement on behalf
             of . . . Sutton, coupled with the vague fear that . . . as
             counsel frames it — confession or concession, could
             possibly implicate [defendant].


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                                          5
       The evidence that defendant . . . fears is not part
of the State's case, and if a concession is made by . . .
Sutton's counsel in his opening statement, that's not
evidence, and the jury will be told that what counsel say
in opening statements or in closing is not evidence and
is not to be considered by them as evidence of anything.

       The only real problem faced by [defendant] is if
. . . Sutton gets on the stand and implicates him in a
third-party- or co-defendant-guilt defense. But if . . .
Sutton does that, the confrontation clause is not
implicated because Mr. Sutton is then subject to cross-
examination by counsel for [defendant].

       ....

      In this case, the defense of [defendant] and the
defense of . . . Sutton are identical. Each separately and
in his own right defends the case on the basis that I
wasn't there[,] and I didn't do it.

        If . . . Sutton says that, or that is his strategy at
trial, that does not mean that the jury, in order to believe
. . . Sutton's defense, must find . . . [defendant] guilty.
That is the sort of mutual [exclusivity] which requires
or permits severance.

       There is nothing here so antagonistic or
[irreconcilable] about these two defendants' defense
strategies as to make severance necessary.

      . . . [Defendant's] right to receive a fair trial, is
not jeopardized in this situation. Here, for whatever the
defense strategy of . . . Sutton is, or may turn out to be,
there is no reason to believe at this juncture that the
defenses are so antagonistic, mutually exclusive or
irreconcilable as to require severance.


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                             6
      This jury can return a verdict against one
defendant or both defendants by believing one, the
other, neither, portions of both, or indeed could return
a verdict of not guilty by believing both completely.
Under those circumstances, defenses are not mutually
exclusive.

       When balancing the speculative prejudice
occasioned by an unarticulated inchoate defense, the
[c]ourt favors the general preference to try co-
defendants jointly because much of the same evidence
is needed to prosecute each defendant in order to
accomplish judicial economy, accommodate witnesses
and victims, avoid inconsistent verdicts, and to
facilitate an accurate assessment of relative culpability.

      It is . . . an insufficient basis to grant a motion for
a severance because a separate defendant has a better
shot at an acquittal if he is tried alone.

       The danger of guilt by association that adheres in
joint trials is not in itself sufficient to justify a
severance, particularly where proper instructions to the
jury can preserve the separate status of a co-defendant.
In point of fact, the [c]ourt has already, even prior to
the making of this motion, laid that groundwork by
stressing on a number of occasions during voir dire the
fact that these two individual defendants must be
judged separately by the jury based upon the evidence
applicable to each of them individually.

      ....

      [I]f the jury accepted Sutton's concession that he
was in the car, the jury is not thereby required to find
[defendant] guilty of any of it. . . .



                                                                A-2163-19
                             7
                    There is nothing conflicting which has been laid
           upon this record . . . to establish mutually exclusive
           defense positions. Nothing suggests that a jury will
           ultimately be presented with a choice between two
           defendants' conflicting accounts. Indeed, . . . there are
           no accounts, conflicting or otherwise. . . . There are no
           statements by one defendant which could be considered
           self-incriminating and implicating the other, and there
           is no inevitable conclusion that because Sutton was in
           an automobile, allegedly operated by [defendant], that
           . . . [defendant] is guilty of eluding or of any of the other
           crimes charged against him.

                 The Court has considered . . . State [v.]
           Johnson[,] 274[] N.J. Super. 137 [(App. Div. 1994)].
           That . . . case . . . stands for the proposition that even
           where one defendant seeks to avoid responsibility by
           placing guilt directly on a co-defendant is not sufficient
           to grant severance. A severance should be granted only
           when co-defendants' defenses are antagonistic and
           mutually exclusive. The mere existence of hostility,
           conflict or antagonism between defendants is not
           enough, and not even that has been shown thus far.

                 To be mutually exclusive, the jury's universe of
           choices must be limited to believing only one defendant
           or the other, and finding only one defendant guilty.
           Here, the jury can return a verdict against one
           defendant, both defendants, or both defendants by
           believing neither, or by believing portions of both, or
           believing both completely. In that case, the defendants
           are not mutually exclusive. Application for severance,
           therefore, is denied.

     At the trial the State presented a witness placing both defendant and

Sutton inside the vehicle, Sutton did not testify, and his counsel made no


                                                                           A-2163-19
                                        8
statements to the jury implicating defendant.         Defendant and Sutton both

appealed from their convictions and sentences. On appeal neither raised the

severance issue. Sutton, (slip op. at 5-7). We affirmed in part, and reversed and

remanded in part for reasons unrelated to this appeal.

Id. at 14.

      In March 2019, defendant filed his PCR petition. He argued

             the trial court's decision to deny his motion to sever . . .
             was plain error, and that therefore there is a reasonable
             probability that if this had been raised on appeal the
             result would have been reversal of his conviction. This
             position is based on . . . [defendant's] contention that
             his defense and that of . . . Sutton were mutually
             exclusive: Sutton's defense was that he was in the Jeep
             that was the subject of the car chase noted above, but
             that he did not take part in the robbery; on the other
             hand, [defendant's] defense was that he was neither in
             the car, nor did he take part in a robbery. Since the two
             were arrested together at 6:00 that same morning, . . .
             [defendant] maintains that the jury could only infer that
             they were together when the crimes were committed, as
             well.

Defendant maintained his claim was prima facie evidence of ineffective

assistance of appellate counsel, he was entitled to an evidentiary hearing, and

his petition was not procedurally barred because it was cognizable under Rule

3:22-4(c).

      The PCR judge denied the petition without an evidentiary hearing and

made the following findings:


                                                                            A-2163-19
                                          9
       Following [the] conviction, [defendant]'s
appellate counsel was successful on a number of very
critical issues dealing with jury instructions which
caused the Appellate Division to remand the issues
before them to the trial court to either retry on those
issues or to accept another tailored guilty plea. The end
result of the issues which the Appellate Division did
decide was that instead of a consecutive sentence, as
previously imposed, there was a concurrent sentence
imposed.       The difference is obvious, even to
[defendant].

      There then came the final issue that this [c]ourt is
aware of . . . the [Bruton] issue which . . . was really
not a [Bruton] issue to begin with. It was fear of
[defendant]'s attorney that the codefendant's counsel, in
his opening statement to the jury, may have said or may
say that . . . Sutton was with [defendant.]

         [Defendant's attorney] argued that before [the
trial judge]. [The trial judge], I think had, in my
opinion, a relatively thorough discussion of the issues,
. . . [and] indicated that if the attorney . . . in fact, would
say that in an opening statement, he would cure by the
instruction that an attorney's opening statements are not
evidence, they are argument, and the jury must keep
them in that perspective.

      . . . [B]efore the trial even started, . . . [the trial
judge] indicated that even at the conclusion of the trial,
[he] would again instruct the jury that this is an armed
robbery case and each defendant must be judged
separately on the evidence which is presented to the
[c]ourt. Now there was a third-party witness who did
identify both of these people were together, including
[defendant], at some time around the time of this
robbery.


                                                                  A-2163-19
                             10
              The issue today is the ineffective assistance of
      . . . appellate counsel for failure to pursue the [Bruton]
      issue[.] [W]hen at trial, [d]efense [c]ounsel, if he had
      thought it was critical issue after discussing it with the
      [j]udge and [c]o-counsel, would have or could have
      filed an . . . interlocutory appeal to have that decision
      reviewed. That was not done. It was only done after
      the appellate counsel had relatively successfully
      represented [defendant] and . . . failed in what this
      [c]ourt believes was an exercise of strategy and
      knowing that appellate counsel need not raise every
      issue that is possible but only those issues upon which
      appellate counsel feels that it has a chance of success
      on.

             Again, an appellate counsel would have read the
      same record that the[c]ourt read. And having done so,
      he decided not to do that. That certainly is not
      sufficient level to raise to ineffective assistance of
      counsel when, in fact, the . . . opined damage that was
      going to be done never happened. The attorney did not
      say in his opening anything that would require[] an
      instruction by the [j]udge. Therefore, the [c]ourt finds
      that the appellate counsel's decision not to pursue the
      [Bruton] issue was not ineffective assistance of counsel
      but a matter of strategy which the counsel opposed.

Defendant raises the following point on appeal.

      POINT ONE: [DEFENDANT] IS ENTITLED TO AN
      EVIDENTIARY HEARING ON HIS CLAIM THAT
      HIS   APPELLATE   ATTORNEY     RENDERED
      INEFFECTIVE ASSISTANCE OF COUNSEL FOR
      FAILING TO APPEAL THE DENIAL OF HIS
      MOTION TO SEVER.




                                                                   A-2163-19
                                 11
                                         I.

      A defendant asserting a claim of ineffective assistance of counsel must

satisfy the two-part test established in Strickland v. Washington, 

466 U.S. 668

,

687 (1984), and later adopted by our Supreme Court in State v. Fritz, 

105 N.J.

42

, 58 (1987). Under that test, a defendant first "must show that counsel's

performance was deficient." 

Strickland, 466 U.S. at 687

. The defendant must

establish that the attorney's performance "fell below an objective standard of

reasonableness" and that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Id. at 687-88.

      The defendant also must show "that the deficient performance prejudiced

the defense."

Id. at 687.

To establish prejudice, the defendant must show "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" of the matter.

Id. at 694.

      An evidentiary hearing on a PCR petition is required only when the

defendant presents a prima facie case for relief, the court determines that there

are issues of material fact that cannot be resolved by reference to the existing


                                                                               A-2163-19
                                        12
record, and the court determines that an evidentiary hearing is required to

resolve the issues raised. State v. Porter, 

216 N.J. 343

, 354 (2013) (citing R.

3:22-10(b)). "A prima facie case is established when a defendant demonstrates

'a reasonable likelihood that his or her claim, viewing the facts alleged in the

light most favorable to the defendant, will ultimately succeed on the merits.'"

Id. at 355

(quoting R. 3:22-10(b)). When an evidentiary hearing has not been

held, we "conduct a de novo review of both the factual findings and legal

conclusions of the PCR court[.]" State v. Harris, 

181 N.J. 391

, 421 (2004).

      Courts apply a strong presumption that defense counsel "rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment." 

Strickland, 466 U.S. at 690

. "The test is

not whether defense counsel could have done better, but whether he [or she] met

the constitutional threshold for effectiveness." State v. Nash, 

212 N.J. 518

, 543

(2013).

                                       II.

      Defendant asserts he made a prima facie case of ineffective assistance of

appellate counsel and because his claim relies on evidence outside of the record,

he was entitled to an evidentiary hearing.        He argues his defense was

"unquestionabl[y] mutually exclusive" from Sutton's defense since defendant's


                                                                           A-2163-19
                                      13
defense was that he was not in the vehicle or at all involved in the robbery,

whereas Sutton conceded he was in the vehicle because of the forensic evidence

placing him in it.    Defendant argues because he and Sutton were arrested

together, "this meant that Sutton's defense would also link [defendant] to the

Jeep; this would inculpate [defendant] and contradict [his] defense that he was

not in the Jeep, making the defenses irreconcilable." Defendant also argues the

timing of his and Sutton's arrest contradicted defendant's defense that he was not

in the vehicle.

       A trial judge deciding a motion to sever must "balance the potential

prejudice to defendant's due process rights against the State's interest in judicial

efficiency." State v. Brown, 

118 N.J. 595

, 605 (1990) (citing State v. Coleman,

46 N.J. 16

, 24 (1965), cert. denied, 

383 U.S. 950

(1966)). "A joint trial is

preferable because it fosters the goal of judicial economy and prevents

inconsistent verdicts." State v. Weaver, 

219 N.J. 131

, 157 (2014). The test for

granting severance is rigorous. 

Brown, 118 N.J. at 605-06

. "The mere existence

of hostility, conflict, or antagonism between defendants is not enough."

Id. at

606.

  A mere risk of prejudice is insufficient to warrant severance as the

defendant must show actual prejudice. State v. Moore, 

113 N.J. 239

, 274 (1988).

"Separate trials are required only when defendants 'present defenses that are


                                                                              A-2163-19
                                        14
antagonistic at their core.'" 

Brown, 118 N.J. at 606

(quoting United States v.

Berkowitz, 

662 F.2d 1127

, 1134 (5th Cir. 1981)).

      "When [a] defendant's defense strategy is antagonistic at its core to the

defense strategy of his co-defendant so that the jury could only believe one of

them, severance is in order." 

Weaver, 219 N.J. at 157

. However, "[i]f the jury

can return a verdict against one or both defendants by believing neither, or

believing portions of both, or, indeed, believing both completely, the defenses

are not mutually exclusive." 

Brown, 118 N.J. at 606

.

      Defendant's appellate counsel was not ineffective for failing to raise the

denial of the severance motion on appeal because there was no probability such

a motion would have been successful or would affect the outcome if it had been

granted. As the trial judge found, the evidence in both cases was identical, and

defendant's presence in the Jeep did not rely on Sutton's concession but instead

was based on the testimony of a third-party witness. Therefore, conducting two

trials would be contrary to the goal of achieving judicial economy.

      More importantly, defendant and Sutton's defenses were not mutually

exclusive. Although Sutton's defense counsel conceded he was in the vehicle,

the concession did not render Sutton's defense antagonistic to defendant's

because there was no testimony from Sutton or comment by his counsel that


                                                                          A-2163-19
                                      15
defendant was in the vehicle as well. Therefore, the jury could have believed or

disbelieved all or a portion of defendant's and Sutton's defenses without either

defendant's theory prejudicing the defense of the other.        Furthermore, both

defendant and Sutton maintained they did not commit the robbery.

      The vehicle chase ended at approximately 2:00 a.m. and defendant and

Sutton were arrested four hours later at a different location. Therefore, the jury

could have believed Sutton was in the Jeep and committed the robbery,

defendant was not in the Jeep and did not commit the robbery, or Sutton and

defendant were both in the Jeep and neither committed the robbery.

      An evidentiary hearing was unnecessary because no other facts could be

adduced to demonstrate the severance motion was viable. For these reasons,

defendant did not demonstrate a prima facie case of ineffective assistance of

appellate counsel. To the extent we have not addressed an argument raised by

defendant it is because it lacks sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                        16

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