STATE OF NEW JERSEY VS. DARRICK HUDSON (08-02-0310, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1526-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRICK HUDSON,

Defendant-Appellant.
________________________

Submitted March 26, 2019 – Decided July 9, 2019

Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 08-02-0310.

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

Gurbir S. Grewal, Attorney General, attorney for
respondent (Claudia Joy Demitro, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM
 Defendant Darrick Hudson appeals from the denial of his petition for post-

conviction relief (PCR) after an evidentiary hearing. We affirm.

I.

Following the partial denial of his motion to suppress inculpatory

statements made to police, defendant pled guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11–4(a); first-degree robbery, N.J.S.A. 2C:15–1; and

third-degree hindering apprehension, N.J.S.A. 2C:29–3(b)(1). The court

sentenced defendant in accordance with the plea agreement to twenty-five years

in prison on the manslaughter charge, and concurrent ten- and three-year terms

on the robbery and hindering apprehension charges. We affirmed defendant's

conviction and sentence in an unpublished opinion. State v. Hudson, No. A-

2631-12 (App. Div. Mar. 1, 2016). The facts regarding the underlying offenses,

and the issues raised on direct appeal, are set forth in our opinion and are briefly

recounted here to provide context for our opinion.

II.

On the evening of March 9, 2007, defendant was a passenger, along with

Tyler Hart, Basir Biggins, and Nasir Salaam, in a vehicle driven by Gina

McCrossen when the group decided to rob a nearby gas station in Atlantic City.

According to defendant, once they arrived at the gas station, he, along with

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Biggins and Salaam, exited the vehicle, and defendant and Biggins entered the

store. The clerk inside the store was shot several times and died, and Salaam

shot and injured a gas station attendant outside the store.

Defendants fled the scene, and on March 10, 2007, defendant was arrested

and brought to the Atlantic County Prosecutor's Office (ACPO). After

defendant and his mother signed a form waiving his Miranda1 rights, his mother

voluntarily left the interrogation room and defendant began to admit his

involvement in the incident. At approximately 2:45 p.m., his mother returned

to the interrogation room and stated she was going to hire an attorney. The

detectives conducting the interrogation left the room nine minutes later.

Defendant and his mother were alone in the interrogation room until 3:24 p.m.,

when a lieutenant entered and discussed the juvenile charging process and the

possibility that defendant would be charged with a crime. The lieutenant and

defendant's mother then left the room, but the lieutenant returned shortly

thereafter with defendant's mentor. With his mentor present, defendant admitted

to his presence at the robbery and killing.

Soon after the March 10, 2007 statement was made, defendant's mother

hired defendant's first trial counsel to represent him. At the PCR hearing,

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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defendant's initial trial counsel testified that over the course of his career, he

represented hundreds of criminal defendants, tried approximately fifteen felony

cases, and was familiar with the ACPO. He also testified that when he first met

with defendant's mother and mentor regarding the case, they informed him that

defendant was present at the robbery and killing, had a minimal role, and never

handled a weapon. Defendant's family also informed counsel that defendant

made a statement on March 10, 2007. According to defendant's counsel,

defendant's family adamantly expressed "that they wanted [defendant] to do the

right thing" and that "the right thing was for him to continue to cooperate."

Defendant's counsel first met with defendant at his waiver hearing in

juvenile court, where they briefly discussed juvenile court procedures and "the

meeting with the family regarding [defendant's] desire to cooperate . . . ."

Thereafter, counsel contacted the ACPO because a detective indicated that they

had "some follow-up questions that they wanted to ask" and counsel "wanted to

make sure . . . that if [defendant] were to continue to be cooperative, that he

would be given credit for that cooperation."

On March 19, 2007, defendant and his counsel met at the ACPO, where

they privately discussed the events leading to the March 9, 2007 robbery and

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killing. Defendant decided not to make a second statement that day, as his

mother and mentor were not present and defendant felt uncomfortable.

On March 20, 2007, defendant and his counsel returned to the ACPO with

defendant's mother and mentor so that defendant could provide a second

statement. Defendant and counsel met privately for a brief time. Thereafter,

defendant provided a second statement with counsel and his mentor in the room,

and again waived his Miranda rights. Defendant's March 20, 2007 statement

repeated much of what he stated on March 10, 2017, but added that Salaam was

involved in the incident.

Defendant's counsel stated that he explained to defendant's mother and

mentor on that day that "if [defendant] were to provide truthful information and

continue to cooperate, that [his] goal was for [defendant] to be treated as a

cooperator and that [he] expect[ed] . . . the [ACPO] would . . . reward[] that with

respect to an eventual plea agreement." Counsel stated that his goal was for

defendant to be charged with an offense "in the low first-degree range," and

hoped for a sentence under fifteen years.

Thereafter, counsel had discussions with the ACPO regarding a plea

agreement, but was advised that their investigation was still ongoing and they

were waiting for DNA evidence to verify defendant's statement. The case

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entered a brief period of quiescence after one of the co-defendant's attorneys

transitioned from private defense practice to the ACPO. Due to this conflict,

the case was transferred to the Attorney General's office.

After the transfer, defendant's initial counsel began discussions with the

Deputy Attorney General (DAG) assigned to the case. The DAG, based on DNA

evidence of the victim's blood on Salaam, believed that defendant and Salaam

misrepresented who was inside the store and killed the victim. Plea negotiations

then deteriorated and the DAG informed defendant's counsel that "he would not

consider cooperation . . . [or] credits . . . unless he got what he believed was

truthful testimony" from defendant. Defendant, however, maintained that his

original statements were truthful.

The Attorney General's first plea offer was for thirty years, which

defendant's counsel thought was very high. Upset with the term of that offer,

defendant's family fired his first attorney, who filed a motion to be relieved as

counsel, and was discharged. Defendant was then represented by a public

defender for a year, then by a third trial counsel.

Defendant's third trial counsel sought to suppress defendant's March 10,

2007 and March 20, 2007 statements. After an evidentiary hearing, the court

issued an order and opinion on July 29, 2011, which suppressed that portion of

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defendant's March 10, 2007 statements after 2:45 p.m. The court concluded that

defendant's statements on March 10, 2007, before 2:45 p.m., and on March 20,

2007, were admissible because defendant made knowing, intelligent, and

voluntary waivers. The court specifically noted that defendant's initial attorney

and his mentor were present for the March 20, 2007 statement.

Thereafter, defendant underwent a psychological evaluation, and

submitted a November 30, 2011 psychological report in support of a motion for

reconsideration of the July 29, 2011 order. After considering the parties'

submissions, the court entered a June 5, 2012 order denying defendant's motion

as to the March 20, 2007 statement because it "was made in the presence of his

attorney, [and mentor] and with the benefit of legal counsel." With respect to

the March 10, 2007 statement, however, the court granted defendant's motion

and ordered the statement suppressed in its entirety because "[d]efendant did not

have the benefit of counsel on that date" and in light of "[d]efendant's limited

IQ and reading comprehension abilities . . . [his] waiver of rights" was not

knowing, intelligent, and voluntary. Defendant pled guilty shortly thereafter.

On May 2, 2016, defendant filed a pro se PCR petition, alleging

"[i]neffective assistance of counsel" and a "[v]iolation of [his] right to counsel

and right to silence." On January 17, 2017, defendant's PCR counsel filed a

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supporting brief, a transcript of defendant's March 20, 2007 statement,

certifications of defendant's mother and mentor, the November 30, 2011

psychological report, and an amended verified petition for PCR. PCR counsel

filed an additional letter brief on or about January 31, 2017.

Salaam also filed a PCR petition raising similar issues, specifically that

his counsel's advice to make a statement to law enforcement officers without

first obtaining a plea offer, and without ascertaining all of the relevant facts,

constituted ineffective assistance of counsel. State v. Salaam, No. A-3989-14

(App. Div. Jan. 31, 2017) (slip op. at 7). We reversed the denial of Salaam's

PCR petition and remanded the case for an evidentiary hearing "for credibility

determinations as to what was explained to [Salaam] regarding what he would

receive in return for giving a statement" to police. Id. at 13. Because defendant's

and Salaam's petitions raised similar issues, the court conducted a single

evidentiary hearing addressing both cases on June 22, 2017 and June 29, 2017.

The court heard testimony from ten witnesses, including defendant, his mother,

his mentor, and his first and third trial counsel.

After hearing extensive oral arguments, the court issued an October 16,

2017 order, denying defendant's PCR petition. In an accompanying written

opinion, the court found that defendant's initial trial counsel was a "highly

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experienced criminal defense attorney," and characterized his "testimony [as]

reliable, complete and entirely credible" and "demeanor on the stand [as] candid

and frank." The court stated that counsel "testified that his decisions and other

actions in this case were based on his experience with the ACPO in other cases"

and that "his past experiences informed his decision-making in this case." The

court also found defendant's third attorney was "reliable and credible," and made

similar findings with respect to Jill Horenberger, the ACPO's former Chief

Assistant Prosecutor.

The court made specific, adverse credibility findings regarding

defendant's mother and mentor. The court characterized both witnesses'

testimony to be "incredible." The court found defendant's mother to have a "very

strong motive" or "bias" to assist defendant, and "gave testimony which was

inconsistent with her earlier testimony at a suppression hearing and

acknowledged that her memory would have been better in 2011."

As to defendant's mentor, the court observed that his testimony "lack[ed]

consistency" and his demeanor "was guarded." The court made similar adverse

credibility findings regarding defendant, noting that he was evasive, his

testimony "appeared rehearsed," and his version of events, including that his

counsel promised a ten-year plea offer, "lacked credibility."

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 With respect to counsel's decision to permit defendant to provide the

March 20, 2007 statement, the PCR court made the following factual findings:

[defendant's trial counsel] advised that [defendant]
should give another statement to ensure that he would
be given credit for the first statement and to separate
him from the more culpable co-defendants.
[Defendant's counsel's] strategy was geared to avoid
felony murder charges against his client. [He]
reasoned, based on his prior experience working with
the ACPO, that getting his client's truthful and accurate
version of events before the prosecution completed the
investigation would be beneficial to his client and
would position him for a favorable resolution.
[Defendant's trial counsel] did not have discussions
with the ACPO about a specific plea deal, but he wanted
to put his client in the best position in order to have him
be offered a fair sentence at a later date. This approach,
in [his] view, was the best way to position his client
under the circumstances.

The court also noted that defendant's counsel's "testimony about his strategy was

corroborated by the testimony of . . . Salaam's trial counsel."

The court also found that defendant's first counsel "told [defendant's]

family that if he provided truthful testimony he felt comfortable that he would

be treated differently than more culpable co-defendants." The court rejected

defendant's claim that his counsel promised him a specific plea deal. Rather,

the court concluded based on the testimony of defendant's first trial counsel and

Horenberger that "[defendant's counsel] spoke with [defendant] and his family

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about potential plea deals in hypothetical terms, but did not tell the family that

[defendant] would definitively get a certain amount of years if he gave the

second statement to police."

Thus, the court concluded that defendant's first counsel "presented

[defendant] for a statement after consulting with his client and his family and

reviewing the available facts and circumstances." The court found that

defendant "failed to meet his burden to show that either [his first or third counsel

were] deficient in their respective performance . . . ." Finally, the court

determined that defendant's March 20, 2007 statement enabled counsel to

negotiate a plea for aggravated manslaughter as opposed to felony murder, with

"much lower penal exposure." The court therefore concluded that counsel’s

"strategy choices appeared to have some success" and defendant "was not

prejudiced by his statement." This appeal followed.

III.

Defendant raises the following issues on appeal, which we have

renumbered for ease of reference:

POINT I

DARRICK HUDSON IS ENTITLED TO RELIEF ON
HIS CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
PRODUCING HIM TO THE STATE TO GIVE AN

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 INCRIMINATING STATEMENT, THUS ASSISTING
THE STATE IN SECURING HIS CONVICTION.

POINT II

DARRICK IS ENTITLED TO RELIEF UNDER
UNITED STATES v. CRONIC, 466 U.S. 648 (1984),
BECAUSE COUNSEL FAILED TO SUBJECT THE
STATE'S CASE TO MEANINGFUL ADVERSARIAL
TESTING.

POINT III

DARRICK HUDSON IS ENTITLED TO RELIEF
UNDER STRICKLAND v. WASHINGTON, 466 U.S.
668 (1984) AND STATE v. FRITZ, 105 N.J. 42 (1987).

POINT IV

COUNSEL'S PERFORMANCE WAS DEFICIENT.

POINT V

DARRICK SUFFERED PREJUDICE AS A RESULT
OF COUNSEL'S DEFICIENT PERFORMANCE.

POINT VI

THE PCR COURT'S FINDINGS ARE
UNSUPPORTABLE AND MUST BE REVERSED.

We conclude these arguments all lack merit, substantially for the reasons

stated in Judge Bernard E. DeLury, Jr.'s cogent written opinion accompanying

his October 16, 2017 order. We amplify the judge's analysis as to the two

primary arguments that defendant makes against his first trial attorney: (1) that

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his counsel's performance was constitutionally ineffective under Strickland v.

Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987); and (2)

that his attorney failed to subject the State's proofs to the "crucible of meaningful

adversarial testing," contrary to United States v. Cronic, 466 U.S. 648 (1984).

IV.

Because defendant's PCR petition is predicated on his claim that trial

counsel was ineffective, he must satisfy the two-part test pronounced in

Strickland by demonstrating that "counsel's performance was deficient," that is,

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687; see also Fritz, 105 N.J. at 58. The first prong requires a showing

that "counsel's representation fell below an objective standard of

reasonableness." Strickland, 466 U.S. at 688. It is the defendant's burden to

prove, by a preponderance of the evidence, that counsel's decisions about trial

strategy were not within the broad spectrum of competent legal representation.

Fritz, 105 N.J. at 52.

Under the second prong, a defendant must demonstrate that his counsel's

errors prejudiced the defense to the extent that the defendant was deprived of a

fair and reliable trial outcome. Strickland, 466 U.S. at 687. To prove this

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element, a defendant must demonstrate "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

Here, defendant fails to satisfy either prong of the Strickland/Fritz test.

Defendant maintains his first counsel's performance was constitutionally

deficient, for four reasons. First, he claims that counsel was ineffective by

failing to make a reasonable investigation into the facts before deciding to have

him confess. Second, defendant contends his counsel was constitutionally

deficient by "fail[ing] to file a motion to suppress [defendant's] first confession,

or even consider its constitutionality, before securing [defendant's] second

confession." Third, defendant maintains his initial trial counsel's performance

was ineffective because counsel "failed to ensure that there was any

consideration for his client's confession." Fourth, defendant claims his counsel

"misadvised [him] about confessing, leading him to believe that he would

receive a low term of imprisonment in exchange for his confession, as he was

the least culpable defendant." We are not persuaded by these arguments.

The testimony at the PCR hearing revealed that before having defendant

cooperate, counsel reviewed the State's discovery, spoke with defendant and his

family about the State's evidence, and provided defendant with strategic advice

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that he should cooperate in order to secure a favorable plea deal. The PCR court

found that defendant's counsel based this strategic decision on his prior

experience with the ACPO in other cases. According to the PCR court, given

the "overwhelming evidence against" defendant, "this approach, in [counsel's]

view, was the best way to position his client under the circumstances," and was

a "sound strategic choice . . . ."

Although defendant argues that the fact that the March 10, 2007 statement

was ultimately suppressed is evidence of his initial counsel's deficient

performance, "courts are required to make 'every effort . . . to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at

the time.'" See State v. Fisher, 156 N.J. 494, 500 (1998) (quoting Strickland,

466 U.S. at 689). As Judge DeLury found, "[e]ven in the early stages" of the

investigation, "the proofs against the [defendant] were overwhelming as the co -

defendants had all incriminated the [defendant] as being a participant" in the

robbery and homicide. Judge DeLury also found counsel was "[a]n experienced

criminal defense attorney in Atlantic County" who "knew this was a case where

the evidence was overwhelming and the best strategy was to have his client

cooperate with law enforcement in an effort to position himself for a favorable

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plea agreement." These findings are supported by counsel's testimony at the

PCR hearing, which Judge DeLury found was credible.

Thus, prior to advising defendant about making another statement, his

initial trial counsel knew that prosecuting authorities had substantial evidence

independent of defendant's March 10, 2007 statements to establish defendant's

participation in the robbery and homicide. As we explained in deciding

defendant's direct appeal, "Biggins was prepared to testify against defendant had

he gone to trial, and both Hart and McCrosson had identified defendant and his

co-defendants as participants before defendant confessed." Hudson, slip op. at

26. We agree with Judge DeLury's conclusion that "it would not have been

sound trial strategy to argue that the [defendant] was not at the scene of the

murder nor that he was uninvolved." In light of the substantial independent

evidence implicating defendant in the robbery and homicide, counsel's decision

to act on his "fear" that defendant "wasn't going to be credited" for his initial

statement by advising him to provide another truthful statement before the

investigation concluded was not constitutionally deficient assistance of counsel.

We also reject defendant's claim that counsel's decision for defendant to

make the March 20, 2007 statement without a plea agreement constituted

ineffective assistance of counsel. As the PCR court stated, that decision was a

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reasonable "strategic decision" based on counsel's prior experience and the

policy of the ACPO not to make early plea promises prior to a completed

investigation. The PCR court credited defendant's initial trial counsel's

testimony that he previously negotiated with law enforcement officials, without

a proffer letter or plea agreement, and obtained favorable results for his clients.

Horenberger corroborated the reasonableness of counsel's strategy when she

stated that "cooperation would assist in receiving a favorable plea offer at a later

time" and that "many experienced attorneys brought their clients in to give

statements without a plea offer."

In addition, the PCR court specifically rejected defendant's claim that his

initial trial counsel proposed a specific plea deal. Rather, the court found that

counsel discussed plea deals in hypothetical terms, and the record developed at

the PCR hearing supports that determination.

Finally, even assuming counsel's approach was constitutionally deficient

performance, we agree with Judge DeLury that defendant failed to establish that

he was prejudiced under the Strickland/Fritz test. In this regard, the PCR court

concluded that counsel's "strategy choices appeared to have some success" as

the March 20, 2007 statement permitted defendant's third counsel to negotiate a

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plea agreement down from the felony-murder charge to aggravated

manslaughter, which carried "much lower penal exposure."

V.

Defendant also argues that "producing [defendant] to the [S]tate to give

an incriminating statement, thus not only failing to subject the prosecutor's case

to meaningful adversarial testing, but also actually assisting the [S]tate in

securing a conviction against [defendant], amounted to ineffective assistance of

counsel," and that the presumption of prejudice discussed in Cronic applies here.

According to defendant, "[t]hat counsel did not even consider the suppression

of a confession from his sixteen year old, intellectually disabled client with no

[criminal] record is unconscionable." Therefore, defendant contends, "[c]ounsel

wholly abandoned his adversarial role and failed to challenge the [S]tate's case,

depriving [defendant] of his right to counsel."

In Cronic, the Supreme Court held that when counsel's errors are of such

a magnitude that "no amount of showing of want of prejudice would cure it," it

is unnecessary for a defendant to demonstrate prejudice. 466 U.S. at 659

(quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). Cronic has only been

applied in the most extreme of cases, such as where trial counsel was completely

absent during jury deliberations and the return of the verdict, and where the trial

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court openly questioned trial counsel's competence and provoked trial counsel

into acts inconsistent with his duty of client loyalty. See Fritz, 105 N.J. at 62–

63; see also Siverson v. O'Leary, 764 F.2d 1208 (7th Cir. 1985); Wilson v.

Mintzes, 761 F.2d 275 (6th Cir. 1985). "Failure to file a suppression motion,

however, is not one of those circumstances." State v. Goodwin, 173 N.J. 583,

597 (2002) (quoting Fisher, 156 N.J. at 501).

The alleged deficiencies in counsel's decision to advise defendant about

providing a second inculpatory statement fall far short of those described in

Cronic and its progeny. As we explained in defendant's direct appeal, "[g]iven

the fact that a co-defendant already decided to cooperate and testify against

defendant," advising defendant to "provid[e] a second statement to police in an

effort to facilitate a plea deal. . . . was not an unreasonable strategy." See

Hudson, slip op. at 19-20. Therefore, no prejudice can be presumed from trial

counsel's decision to advise defendant to make the March 20, 2007 statement.

Judge DeLury correctly decided that defendant was not entitled to post-

conviction relief on this basis.

In addition, as previously discussed, counsel's representation did not

reflect a "complete failure" such that the State's case was not tested against "t he

crucible of meaningful adversarial testing" warranting the Cronic presumption.

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See Cronic, 466 U.S. at 656, 659. Just as advice that a client should plead guilty

can constitute advice that "falls within the range of reasonable competence under

the circumstances," see id. at 656 n.19, Judge DeLury correctly concluded that

advising defendant to provide a second statement was reasonable in light of the

overwhelming evidence implicating defendant in the robbery and killing. We

therefore conclude that there was no "breakdown in the adversarial process that

would justify a presumption that [defendant's] conviction was insufficiently

reliable to satisfy the Constitution." See Cronic, 466 U.S. at 662.

To the extent we have not specifically addressed any of defendant's

remaining contentions, it is because we find they have insufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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