STATE OF NEW JERSEY VS. ROLANDO TERRELL (09-07-2029, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4298-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROLANDO TERRELL,
Defendant-Appellant.
________________________
Submitted March 15, 2021 – Decided June 1, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 09-07-2029.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard W. Bailey, 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).
PER CURIAM
Defendant appeals from a January 18, 2019 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Judge Verna G.
Leath heard oral argument and rendered a comprehensive oral decision on the
record. Defendant is presently serving multiple life sentences on his trial
convictions for four murders that were committed in the course of a home
invasion robbery. He contends counsel rendered ineffective assistance at his
second trial by failing to call his girlfriend as an alibi witness, by failing to
challenge the identification testimony of a witness at the first trial who saw him
flee from the robbery-murder scene, and by failing to call that witness at
defendant's second trial. We reject these contentions and affirm the denial of
PCR substantially for the reasons set forth in Judge Leath's thorough and
thoughtful opinion.
The procedural history and relevant facts are fully recounted in our prior
published opinion and need not be repeated at length in this opinion. State v.
Terrell, 452 N.J. Super. 226 (App. Div. 2016). It is sufficient for present
purposes to note that defendant was charged by indictment with multiple counts
of first-degree robbery, conspiracy to commit robbery, four counts of
knowing/purposeful murder, four counts of felony-murder, aggravated arson
and conspiracy to commit arson, and related weapons offenses, including
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possession of a firearm by a previously convicted felon. 1 Defendant was
initially tried in March and April 2011. That trial resulted in convictions for
robbery, conspiracy to commit robbery, and weapons offenses. Defendant was
acquitted on one of the robbery counts and one count charging aggravated arson.
The jury was unable to reach a verdict on the murder charges and the count
charging possession of a defaced firearm. The trial judge at the initial
sentencing hearing determined that defendant was a habitual offender and
imposed a life term. In June and July 2012, defendant was retried on the murder
and defaced firearm charges. This time, he was convicted on all counts charging
murder and acquitted on the defaced firearms charge. He was sentenced on the
murder convictions to four consecutive seventy-five-year terms subject to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentences imposed on
the 2012 murder convictions were ordered to run consecutively to the aggregate
sentence imposed on the 2011 trial convictions.
On direct appeal, we consolidated the issues arising from both trials and
affirmed defendant's convictions in a published opinion. Terrell, 452 N.J. Super.
1The indictment pertains to a single criminal episode. The multiple robbery
and homicide counts reflect that there were multiple victims.
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at 226. 2 The Supreme Court affirmed in a one-sentence per curiam decision.
State v. Terrell, 231 N.J. 170 (2017). In January 2019, defendant filed a pro se
petition for PCR. Assigned PCR counsel thereafter filed a supporting brief. 3
We next briefly summarize the relevant facts pertaining to the horrific
crimes for which defendant was convicted. The State at the second trial elicited
evidence that on September 8, 2008, defendant and co-defendant Lester Hayes 4
went to 172 Columbia Avenue in Irvington to commit a robbery. Defendant
targeted that house because he believed they would find drugs and cash proceeds
from a gang-involved drug distribution enterprise. Defendant explained to
Hayes, "I know the person, the girl that lives here, and her boyfriend is in prison,
so we going to go in here, get this shit, and come right out, it's going to be real
easy, you know, you ain't got to worry about nuttin."
Defendant was armed with a handgun. He also brought a beer bottle that
he had filled with gasoline. Once inside the home, defendant demanded to know
2
Justice Albin filed a separate opinion, dissenting in part, but only discussed a
juror's removal. Id. at 171 (Albin, J., dissenting).
3
We note that several contentions that defendant raised in his PCR petition are
not raised in this appeal.
4
Hayes testified for the State pursuant to a cooperation plea agreement. He is
not a party to this appeal.
4 A-4298-18
where the drugs and money were kept. Defendant became increasingly agitated
when the female who ran the narcotics enterprise in her boyfriend's absence told
defendant that others had already come for the money. Defendant drew the
handgun, placed it at her neck and said, "I know it's in here. Bitch, I know it's
in here."
Defendant eventually shot her and three other occupants in the head.
Defendant spread gasoline throughout the room and ignited it. Two of the
gunshot victims died at the scene. The other two gunshot victims later
succumbed to their injuries.
Defendant raises the following arguments for our consideration.
POINT I
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS, AND PETITIONS FOR POST-
CONVICTION RELIEF
B. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS
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ATTORNEY FAILED TO CALL [MICHELE
PADEN BATTLE] AS AN ALIBI WITNESS
C. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEY FAILED TO CHALLENGE THE
IDENTIFICATION BY VERN BREVARD AND
THEN FAILED TO CALL HER AS A WITNESS
DURING THE SECOND TRIAL
D. DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL SUFFICIENT TO
GRANT AN EVIDENTIARY HEARING
BASED ON NUMEROUS OTHER CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL
I.
Because we affirm substantially for the reasons set forth in Judge Leath's
commendably thorough oral opinion, we need not re-address defendant's
contentions at length. We add the following remarks.
The Sixth Amendment of the United States Constitution and Article 1,
paragraph 10 of the State Constitution guarantee the right to effective assistance
of counsel at all stages of criminal proceedings. Strickland v. Washington, 466
U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). Post-conviction relief serves the same function as a federal writ of
habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). To establish a
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violation of the right to the effective assistance of counsel, a defendant must
meet the two-part test articulated in Strickland. In order to demonstrate
ineffectiveness of counsel, "[f]irst, the defendant must show that counsel's
performance was deficient. . . . [s]econd, the defendant must show that the
deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. In
State v. Fritz, our Supreme Court adopted the two-part test articulated in
Strickland. 105 N.J. 42, 58 (1987).
To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment." 466 U.S. at 687. Reviewing
courts indulge in a "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. at 689. The fact that a
trial strategy fails to obtain for a defendant the optimal outcome is insufficient
to show that counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002)
(citing State v. Bey, 161 N.J. 233, 251 (1999)). Furthermore, it is well-
established that "a defense attorney's decision concerning which witnesses to
call is 'an art,'" and "review of such decision[s] should be 'highly deferential.'"
State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 693,
689).
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The second prong of the Strickland/Fritz test requires the defendant to
show "that counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Put
differently, counsel's errors must create a "reasonable probability" that the
outcome of the proceedings would have been different if counsel had not made
the errors. Id. at 694. The second Strickland prong is particularly demanding:
"the error committed must be so serious as to undermine the court's confidence
in the jury's verdict or the result reached." State v. Allegro, 193 N.J. 352, 367
(2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)). This "is an
exacting standard." State v. Gideon, 244 N.J. 538, 551 (2021) (quoting Allegro,
193 N.J. at 367). "Prejudice is not to be presumed," but must be affirmatively
proven by the defendant. Ibid. (citing Fritz, 105 N.J. at 52; Strickland, 466 U.S.
at 693).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462–63. Rule 3:22-10
recognizes the PCR court's discretion to conduct an evidentiary hearing. A
defendant is entitled to an evidentiary hearing only when he or she "has
presented a prima facie [claim] in support of [PCR]," meaning that a defendant
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must demonstrate "a reasonable likelihood that his or her claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (citing
Preciose, 129 N.J. at 463). A defendant must "do more than make bald
assertions that he [or she] was denied the effective assistance of counsel" to
establish a prima facie claim entitling him or her to an evidentiary hearing. State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). See also State v.
Porter, 216 N.J. 343, 355 (2013) ("a defendant is not entitled to an evidentiary
hearing if the 'allegations are too vague, conclusory, or speculative to warrant
an evidentiary hearing[.]'") (quoting Marshall, 148 N.J. at 158) (alteration in
original).
When a PCR judge does not hold an evidentiary hearing, our standard of
review is de novo as to both the factual inferences drawn by the PCR judge from
the record and the judge's legal conclusions. State v. Blake, 444 N.J. Super.
285, 294 (App. Div. 2016). We "view the facts in the light most favorable to a
defendant to determine whether a defendant has established a prima facie claim."
Preciose, 129 N.J. at 463.
PCR is not a substitute for direct appeal. State v. Mitchell, 126 N.J. 565,
583 (1992). Furthermore, Rule 3:22-5 bars PCR for claims that have already
been adjudicated on their merits. The rule provides, "[a] prior adjudication upon
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the merits of any ground for relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction proceeding" or "in any
appeal taken from such proceedings." "PCR will be precluded 'only if the issue
is identical or substantially equivalent' to the issue already adjudicated on the
merits." State v. Afanador, 151 N.J. 41, 51 (1997) (quoting State v. McQuaid,
147 N.J. 464, 484 (1997)).
II.
We next apply those foundational principles to defendant's current claims.
We first address defendant's contention that his trial counsel rendered
ineffective assistance by failing to investigate whether defendant's girlfriend,
Michelle Paden Battle (Battle), could have provided alibi testimony on his
behalf. Defendant now claims he was with Battle near the time of the robbery-
murders. However, he did not relay that information to counsel. Rather,
defendant's mother called the judge's chambers to alert the court to this possible
alibi defense after the second trial had started.
We begin our analysis by noting that defendant's argument is procedurally
barred under Rule 3:22-5. On direct appeal, defendant claimed that the
prosecutor violated discovery rules by failing to disclose that Battle could
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provide an alibi defense. We reproduce the portion of our opinion rejecting that
contention:
Defendant's final challenge lodges a discovery
violation. He maintains the State failed to timely
disclose a possible exculpatory witness, that is, a
woman who had contacted police three weeks before
trial stating defendant was with her at the time of the
murders. During jury selection, defendant's mother
called the judge's chambers advising that Detective
Robert Morris of the Essex County Prosecutor's Office
was given a statement from "Michele" who provided an
alibi for defendant. Defendant had received similar
information from his mother, but insisted the State
failed to disclose an exculpatory witness.
In response to the defendant's application, the [trial]
judge stated: "You're turning it on its head. Your client
would have had this information" because it related to
where he allegedly was during the crime. Defendant
would have known had he been with the alibi witness.
However, he never gave notice of an alibi. Also, the
judge aptly noted this was a retrial and an alibi was
never before raised. For these reasons, we conclude the
argument lacks sufficient merit to warrant additional
discussion in our opinion. R. 2:11-3(e)(2).
[452 N.J. Super. at 277–78.]
Although defendant's present alibi defense argument is now couched in
terms of ineffective assistance of counsel, we believe it is substantially
equivalent to the argument we considered and rejected on direct appeal. See
McQuaid, 147 N.J. at 484. Despite this procedural bar, we choose to address
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defendant's ineffective assistance contention on the merits, as did the PCR
judge.
It is well-settled that "[f]ailure to investigate an alibi defense is a serious
deficiency that can result in the reversal of a conviction." State v. Porter, 216
N.J. 343, 353 (2013). In Porter, the defendant's girlfriend submitted an affidavit
supporting his claim that she was with him at the time the crimes were
committed. Id. at 350. The Court remarked that the PCR judge in that case
"simply speculated that she would be 'biased.'" Id. at 356. The Court noted that
the "proper way to determine [the girlfriend's] veracity was to assess her
testimony on direct and cross-examination." Ibid. The Court determined that
the defendant made a prima facie showing sufficient to warrant an evidentiary
hearing. Id. at 357. See also State v. Jones, 219 N.J. 298, 314 (2014) ("In order
to resolve the issue, the PCR court should have heard from witnesses, including
trial counsel, whose reason for not ensuring the testimony of an apparent alibi
and corroborative witness is unexplained on the record as it presently stands.").
In contrast, the reasons why counsel did not investigate and present Battle
as an alibi witness are easily explained from the record as it presently stands.
The facts of the case before us are decidedly different from the circumstances
that warranted an evidentiary hearing in Porter. Notably, defendant failed to
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submit an affidavit or certification from Battle. Rather, he relies on an
investigative report—one that was prepared ten years after the crimes were
committed—that presents Battle's statement in the form of unsworn hearsay.
That investigative report reads:
On September 7, [2008], 5 [defendant] met with [Battle]
at her home at approximately 12:30 pm . . . to celebrate
[her] birthday. [Defendant] was with [Battle] the
remainder of the day and spent the night at her home.
On September 8, [2008], [Battle] woke up between 7:30
am and 8:00 am; [defendant] was sleeping. [Battle] got
her daughter and daughter's grandmother . . . ready for
a trip . . . [Battle] recalls this trip because it was
Memorial Day weekend. [Battle] woke [defendant]
between 9:00 am and 9:30 am. . . . [defendant and
Battle] remained in the house.
We share Judge Leath's skepticism regarding the investigative report that
defendant submitted in lieu of an affidavit or certification from Battle. In sharp
contrast to the situation in Porter, here, the PCR judge did not assume the
purported alibi witness was not credible simply because of her romantic
relationship with defendant. Rather, Judge Leath noted conspicuous
inaccuracies in Battle's hearsay statements that were recounted in the
5
We note the report upon which defendant relies incorrectly indicates the
incidents occurred on September 7 and 8, 2018. We presume this is a
typographical error and that the report means to refer to 2008, when the robbery-
murders actually occurred.
13 A-4298-18
investigative report. For example, Judge Leath highlighted that Battle told the
defense investigator that she could recall what happened a decade earlier
because it was a holiday weekend. But as Judge Leath aptly noted, the murders
did not occur over the Memorial Day weekend.
Furthermore, the suspicion of fabrication is bolstered by the timing of
events. Indeed, the lack of credibility of the alleged alibi testimony is readily
apparent, not because the witness was romantically involved with defendant, but
because her potential alibi testimony was first revealed after the second trial had
begun. The first trial ended with robbery convictions more than a year before
the second trial commenced. The pronounced delay in coming forward with
alibi evidence suggests a desperate attempt to fabricate a defense to disrupt the
second trial.
We agree with Judge Leath that it was defendant's responsibility to inform
his counsel that he was with his girlfriend on the night of the murders. The Sixth
Amendment does not require a defense attorney to be clairvoyant. Defendant is
now hard-pressed to claim counsel rendered constitutionally deficient assistance
by failing to investigate Battle's possible alibi testimony when counsel only
learned about it long after the first trial was completed and after defendant had
begun serving a life sentence on the robbery convictions. It seems implausible
14 A-4298-18
to us that a defendant could sit next to counsel over the course of a protracted
murder trial—spanning fifteen days of trial testimony and involving multiple
identification witnesses—and not mention to counsel that he was elsewhere with
his girlfriend when the crimes were committed. In view of the strong
presumption from Strickland that counsel's conduct falls within the wide range
of reasonable professional assistance, we decline to hold that counsel in these
circumstances was somehow expected to investigate Battle's possible testimony
without having been told by his client at any time during the first trial that he
spent the time during the murders with her.
Nor has defendant established a prima facie case for the second prong of
the Strickland/Fritz test. We reiterate that defendant was identified by at least
six witnesses. Defendant has failed to establish that there is a reasonable
probability that Battle's testimony would have produced a different trial
outcome. Strickland, 466 U.S. at 694. Having failed to establish a prima facie
case under either prong of the Strickland/Fritz test, defendant was not entitled
to an evidentiary hearing, much less a new trial based on his recently-minted
alibi claim.
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III.
We next turn to defendant's contention that his trial counsel was
ineffective for failing to challenge the identification testimony of an eyewitness
who testified for the State at the first trial but who was not called by either party
at the second trial. This contention lacks sufficient merit to warrant extensive
discussion. See R. 2:11-3(e)(2).
The witness at issue was outside on Columbia Avenue during the robbery-
murder. She heard gunshots and observed two or three African American men
run out of the 172 Columbia residence and enter a red jeep. The next day, she
was interviewed by police and selected defendant's photograph from an array.
During the first trial, she made an in-court identification of defendant. She also
identified a photograph of defendant's red jeep. As noted, she did not testify at
the second trial.
Defendant now contends counsel was ineffective for failing to challenge
her out-of-court identification, asserting that she had been intimidated by a
detective who was present during the photo-array procedure. Defendant claims
she was initially unable to identify any of the men who ran out of the house, and
was then brought to the prosecutor's office where she was re-interviewed and
pressured to identify defendant.
16 A-4298-18
Defendant's current contention that counsel failed to challenge her
identification testimony is belied by the record. In reality, trial counsel
requested a Wade/Henderson 6 hearing "to ascertain if her identification [was]
the product of her memory of the day of the crime or obtained by information
given to her between the date of the incident and the date of the statement."
Defendant's present argument also ignores the fact that trial counsel extensively
and aggressively cross-examined the witness at the first trial. Nothing in the
record suggests that counsel was constitutionally ineffective with respect to this
prosecution witness. On the contrary, counsel's cross-examination of this
witness evinces professional competence.
Finally, in a strange twist, defendant now also claims his counsel was
ineffective for failing to call this same witness at the second trial. As we have
noted, she was not called by the State at retrial. We agree with Judge Leath that
defense counsel's decision not to subpoena this witness was a strategic decision
to which we owe deference. See Arthur, 184 N.J. at 321 (quoting Strickland,
466 U.S. at 693, 689). Moreover, we fail to see how defendant could possibly
have been prejudiced by counsel's decision not to call a bystander witness who
6
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208(2011).
17 A-4298-18
claimed to see defendant flee from the murder scene. At best, counsel might
have been able to neutralize her identification testimony were he allowed to
cross-examine his own witness at the second trial. Neutralizing her inculpatory
testimony would not have changed the outcome of a trial at which this witness
did not testify at all. Accordingly, defendant has failed to establish either prong
of the Strickland/Fritz test.
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
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