STATE OF NEW JERSEY VS. MICHAEL PALMER(01-10-4196, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3328-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL PALMER,
Defendant-Appellant.
___________________________
Submitted March 29, 2017 – Decided July 18, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 01-10-4196.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Sara A.
Friedman, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Michael T. Palmer appeals from the December 17,
2013 Law Division order, which denied his petition for post-
conviction relief without an evidentiary hearing. We affirm.
I.
Following a jury trial, on October 27, 2003, defendant was
convicted of first-degree murder, N.J.S.A. 2C:11-3(a) (count one);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count two); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing on October
27, 2003, Judge Thomas M. McCormack merged count three with count
one and imposed a thirty-year term of imprisonment with a thirty-
year period of parole ineligibility on count one, and a concurrent
thirty-year term of imprisonment on count two.
The charges against defendant stemmed from the shooting death
of Tarrod Grantham, known locally as Rallo, at approximately 4:25
p.m. on August 4, 2001, at 2089 Columbia Avenue in Irvington.1 The
State's case relied heavily on the testimony of an eyewitness,
C.D., who was fourteen years old at the time of the shooting and
resided at 2087 Columbia Avenue. According to C.D., she was
outside her home between 3:00 p.m. and 3:30 p.m. when she saw
1
We use fictitious house numbers in order to protect the identity
of the persons involved in this case.
2 A-3328-13T2
Rallo walking toward 2089 Columbia Avenue, and then go up the
steps of the building. C.D. saw Rallo standing on the front porch
with his friend "Slick." C.D. then re-entered her home.
C.D. testified that at approximately 4:20 p.m., she returned
to the porch of her home with her friend Marsha. She saw Rallo
and Slick outside 2089 Columbia Avenue, and saw a person named
Mike walking toward 2089 Columbia Avenue. C.D. identified
defendant as Mike, and testified that she had seen him in the
neighborhood more than twenty times.
C.D. testified that as Mike approached 2089 Columbia Avenue,
Slick ran inside the building. She saw Mike draw near to Rallo
and point his right arm at Rallo, who was standing on the steps.
She "heard a boom, like a firecracker shot," saw smoke, and ran
up the steps. She then saw Mike running toward Eighteenth Avenue.
She ran to Rallo and saw that he had been shot in the chest.
When the police arrived at the scene, C.D. told an officer
that Mike shot Rallo and provided a physical description of Mike.
She then went to the police station to make a photo identification
of Mike and to give a statement. She testified that she went
through approximately twenty photos on the computer and was able
to identify defendant as Mike from one of the photos. The police
eventually located defendant and arrested him on August 28, 2001.
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C.D. also made an in-court identification of defendant as the
shooter.
C.D. did not identify anyone other than Mike, Rallo, Slick,
and Marsha as being present at the time of the shooting. A
detective attempted to locate additional witnesses to the
shooting, but none came forward, and neither the second floor
tenant at 2089 Columbia Avenue nor any other spectators at the
scene had helpful information.
Defendant's trial counsel went to the crime scene, but found
little to investigate due to the passage of time since the shooting
and the alteration of the buildings. The buildings at 2087 and
2089 Columbia Avenue had been vacated and boarded up in the Spring
following the shooting. Trial counsel also spoke to defendant
about the possibility of using Slick as a witness, but defendant
instructed counsel not to speak to him.
Trial counsel also tried to contact C.D., but discovered she
had moved. Counsel eventually received C.D.'s new address shortly
before trial, but never spoke to her. C.D. had given three
statements that differed in some degree, so counsel decided to
rely on those statements and try to exploit the inconsistencies
at trial. At trial, counsel extensively cross-examined C.D. about
her inconsistent statements.
4 A-3328-13T2
Prior to sentencing, defendant sought a new trial based, in
part, on trial counsel's ineffective assistance in failing to
investigate witnesses. Following an evidentiary hearing, at which
trial counsel testified, Judge McCormack denied the motion,
holding that counsel's performance was not deficient.
Specifically, the judge stated that counsel's investigation of the
case, her consultations with defendant, and her trial strategy
could not be considered deficient.
Defendant appealed his conviction and denial of his motion
for a new trial, arguing, in part, that trial counsel rendered
ineffective assistance by failing to investigate and call C.B.,
another eyewitness to the shooting. While the appeal was pending,
defendant filed a motion with this court to supplement the record
to include Irvington Police Department reports of two interviews
with C.B., dated August 26, 2004 and February 8, 2005, and a photo
display and photograph form signed by C.B., dated February 7,
2005, signed by C.B. In support of his motion, defendant stated
that the supplemental material buttressed his contention that
trial counsel's performance was deficient because C.B. had been
located and her recollection of the events exculpated him.
We affirmed, but remanded to correct the judgment of
conviction (JOC) to reflect a concurrent three-year term of
imprisonment on count two. State v. Palmer, No. A-2576-03 (App.
5 A-3328-13T2
Div. Dec. 14, 2006) (slip op. at 15). We did not preclude defendant
from pursuing PCR based on information or evidence that C.B. may
have concerning the events of the afternoon of August 4, 2001.
Id. (slip op. at 14). We found the supplemental material was, on
its face, equivocal, and the information provided by C.B. was not
exculpatory. Id. (slip op. at 14-15). However, we determined
that none of the supplemental material was presented to the trial
judge, and we did not preclude further consideration of this
material in a subsequent PCR petition. Id. (slip op. at 15). Our
Supreme Court denied certification. State v. Palmer, 194 N.J. 268
(2008).
Defendant filed a PCR petition, certifying that trial counsel
rendered ineffective assistance by failing to investigate and call
C.B. In support of his motion, defendant submitted an affidavit
from C.B., dated August 12, 2012. Defendant also submitted an
affidavit from C.B.'s mother, T.B., who was present during the
police interviews with C.B. PCR counsel argued in his brief that
trial counsel also rendered ineffective assistance by failing to
call other witnesses and coercing defendant not to testify at
trial; however, defendant did not certify to these facts and did
not submit certifications from the alleged witnesses.
On February 28, 2011, Judge McCormack entered an order
granting an evidentiary hearing, but limiting the hearing to all
6 A-3328-13T2
evidence discovered after defendant's conviction relating to trial
counsel's alleged failure to investigate and call C.B. The order
also included T.B.
At the start of the hearing before Judge Alfonse J. Cifelli,
defendant stated that in addition to C.B., he wanted to present
evidence relating to trial counsel's failure to investigate other
witnesses prior to and after trial. Judge Cifelli enforced Judge
McCormack's February 28, 2011 order, and declined to expand the
scope of the hearing beyond evidence discovered after defendant's
conviction relating to trial counsel's failure to investigate and
call C.B.
At the hearing, C.B. testified that she was eleven years old
at the time of the shooting, and had signed the affidavit on August
12, 2012, which stated that on August 4, 2001, she was outside
playing with C.D. when she saw a person known as Mike run between
two houses and run to the porch of 2089 Columbia Avenue where
Rallo and Slick were hanging out. Mike walked up to Rallo, held
out his arm, and she heard a popping sound. C.B. testified she
only saw the shooter's face from an angle from where she was
sitting on the front of her house and it was C.D. who told her
that the shooter was Mike.
C.B. testified that the Mike she saw on August 4, 2001 was
not in a photo array shown to her on February 7, 2005. She also
7 A-3328-13T2
testified that she did not recognize and could not identify any
of the people in the photo array shown to her, and acknowledged
that the shooter could have been in the photos, but she was not
sure. She admitted that she could not say with certainty that
defendant was or was not the shooter. She testified that she did
not come forward before August 26, 2004, because she did not want
to get involved and her mother did not want her involved. She
also testified that she would not have been willing to testify at
trial absent a court order or subpoena.
T.B. testified that C.B. ran into the house and told her that
someone got shot. She testified that she probably would not have
permitted C.B. to provide any information to the police about the
shooting, or provide any information herself. She also testified
that she probably would not have allowed C.B. to testify at trial
without a court order or subpoena out of concern for C.B.'s safety
and because C.B. was a child.
Judge Cifelli denied the petition. In a December 17, 2013
oral opinion, the judge found defendant failed to show that trial
counsel's performance was deficient, and even if deficient, that
the outcome would have been different. The judge found that C.B.'s
potential testimony would have provided "no discernible assistance
to [defendant's] defense or any impact on the outcome of the
8 A-3328-13T2
trial[,]" as she "was clearly not able to provide any [firsthand]
information concerning the shooter and/or his identity[.]"
Judge Cifelli also found trial counsel's alleged failure or
inability to locate C.B., be it from lack of effort or otherwise,
inconsequential to defendant's conviction for murder. The judge
determined that C.B.'s potential testimony would not have
contradicted or impeached C.D.'s positive in- and out-of-court
identifications of defendant as the shooter, and C.D.'s testimony
was sufficient for the jury to find defendant guilty of murder.
On appeal, defendant raises the following contentions:
POINT I – [PCR] SHOULD HAVE BEEN GRANTED WHERE
TRIAL COUNSEL FAILED TO INTERVIEW AND PRESENT
TESTIMONY THAT WOULD CONTRADICT THE STATE'S
ONLY EYEWITNESS.
POINT II – DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING ON THE ISSUE RAISED IN HIS
[PCR] PETITION CONCERNING THE ALLEGATION THAT
TRIAL COUNSEL COERCED THE DEFENDANT TO REFRAIN
FROM TESTIFYING.
Defendant raises the following contentions in a pro se supplemental
brief:
POINT I
The PCR Court improperly denied Defendant the
Right to Present Evidence and Witnesses
Contrary to Judge McCormack's Order Relating
to Trial Counsel's Failure to Investigate.
9 A-3328-13T2
POINT II
PCR Counsel Was Ineffective For Failing to
Honor the Defendant's Request And Ask C.B.
Questions Regarding the Fight [Defendant] Had
With [the victim] the Day Before He Was
Murdered.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings and make
determinations on the merits only if the defendant has presented
a prima facie claim of ineffective assistance of counsel, material
issues of disputed fact lie outside the record, and resolution of
the issues necessitates a hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013). To establish a prima facie claim of
ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
10 A-3328-13T2
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance."
Cummings, supra, 321 N.J. Super. at 170. The defendant must
establish, by a preponderance of the credible evidence, that he
is entitled to the relief requested. State v. Nash, 212 N.J.
518, 541 (2013). "[W]hen a [defendant] claims his trial attorney
inadequately investigated his case, he must assert the facts that
an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Porter, supra, 216 N.J.
at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).
Our Supreme Court has established the standard of review in
PCR cases where the court held an evidentiary hearing:
In reviewing a PCR court's factual findings
based on live testimony, an appellate court
applies a deferential standard; it will uphold
the PCR court's findings that are supported
by sufficient credible evidence in the record.
Indeed, [a]n appellate court's reading of a
cold record is a pale substitute for a trial
judge's assessment of the credibility of a
witness he has observed firsthand. However,
11 A-3328-13T2
a PCR court's interpretation of the law is
afforded no deference, and is reviewed de
novo. [F]or mixed questions of law and fact,
[an appellate court] give[s] deference . . .
to the supported factual findings of the trial
court, but review[s] de novo the lower court's
application of any legal rules to such factual
findings.
[State v. Pierre, 223 N.J. 560, 576-77 (2015)
(citations omitted).]
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
II.
Defendant contends in Point I of his merits brief that Judge
Cifelli erred in denying PCR because the evidence showed that
trial counsel failed to interview and call C.B., whose testimony
would have called C.D.'s testimony into question. Since Judge
Cifelli granted an evidentiary hearing on this issue, we must
determine whether his findings are supported by sufficient
credible evidence in the record.
Generally, a criminal defense attorney "has a duty to make
reasonable investigations or make a reasonable decision that makes
particular investigations unnecessary." Strickland v. Washington,
466 U.S. 668, 691, 104 S. Ct. 2052, 2006, 80 L. Ed. 2d 674, 695
(1984). The failure to investigate potential witnesses may
constitute ineffective assistance. State v. Deutsch, 229 N.J.
12 A-3328-13T2
Super. 374, 377 (App. Div. 1988) (citation omitted). A defendant
may also establish ineffective assistance by showing that counsel
failed to call exculpatory witnesses on his behalf. State v.
Petrozelli, 351 N.J. Super. 14, 25 (App. Div. 2002). Moreover,
"[t]he complete failure to investigate potentially corroborating
witnesses cannot be attributed to trial strategy." State v.
Arthur, 184 N.J. 307, 342 (2005) (citations omitted). However,
the "decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments." Strickland v. Washington,
supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
The record amply supports Judge Cifelli's finding that
defendant failed to show trial counsel's performance was
deficient, and that even if deficient, the outcome would have been
different. C.B. was not an exculpatory witness. She had no first-
hand information about the shooter and/or his identity and could
not say with certainty whether or not defendant was the shooter.
In addition, C.B.'s potential testimony would not have been that
the shooter was not in the photo array shown to her over three
years after the shooting, but only that she could not make any
identification and did not know if the shooter was in the array.
Nor would C.B.'s potential testimony have impeached or
contradicted C.D.'s positive identifications of defendant as the
13 A-3328-13T2
shooter. Clearly, if C.B. had testified at trial, it would not
have changed the result. She would not have testified that
defendant was not the shooter.
III.
Defendant contends in Point II of his merits brief that Judge
Cifelli erred in limiting the scope of the evidentiary hearing and
denying a hearing on his claim that trial counsel coerced him not
to testify and failed to investigate other witnesses. However,
there is no credible evidence in the record supporting this
argument, as defendant did not certify that trial counsel coerced
him not to testify. Defendant also did not submit affidavits from
the alleged witnesses asserting the facts to which they would have
testified. Porter, supra, 216 N.J. at 353.
In any event, defendant's contention that Judge Cifelli
improperly limited the scope of the evidentiary hearing lacks
merit. The limitation complied with our preservation of
defendant's right to pursue PCR based on post-conviction evidence
relating only to C.B. See Palmer, supra, (slip p. at 14-15). We
did not preserve any other issue for PCR.
Defendant's contention that trial counsel coerced him not to
testify also lacks merit. The record belies defendant's claim
that trial counsel coerced him not to testify.
14 A-3328-13T2
"As with the right against self-incrimination, . . . 'it is
the responsibility of a defendant's counsel, not the trial court,
to advise defendant on whether or not to testify and to explain
the tactical advantages or disadvantages of doing so or not doing
so." State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v.
Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988)). As the Court
stated:
Counsel's responsibility includes advising a
defendant of the benefits inherent in
exercising that right and the consequences
inherent in waiving it. To ensure that
counsel meets that obligation, it may be the
better practice for a trial court to inquire
of counsel whether he or she had advised a
defendant . . . of his or her right to testify.
This will best ensure that defendant's
constitutional rights are fully protected.
Indeed, counsel's failure to do so will give
rise to a claim of ineffectiveness of counsel.
[Id. at 631.]
Here, Judge McCormack asked trial counsel if defendant
intended to testify, and counsel responded no. The following
colloquy then occurred:
[COUNSEL]: Mr. Palmer, you understand that
if you choose to, you can actually take the
stand in your own defense?
THE DEFENDANT: Yes.
[COUNSEL]: And you're aware that we're ready
and willing to proceed that way today?
THE DEFENDANT: Yes.
15 A-3328-13T2
[COUNSEL]: Isn't it true that I have been
representing you since, I believe March 3rd
of this year?
THE DEFENDANT: Yes.
[COUNSEL]: And I have met with you on numerous
occasions to discuss defense strategy?
THE DEFENDANT: Yes.
[COUNSEL]: And during these conversations we
discussed your possibly taking the stand. Is
that correct?
THE DEFENDANT: Yes.
[COUNSEL]: And we have made the decision –
you personally made the decision for you not
to testify?
THE DEFENDANT: Yes.
[COUNSEL]: And you did so after consulting
me?
THE DEFENDANT: Yes.
[COUNSEL]: After consulting with numerous
family members?
THE DEFENDANT: Yes.
[COUNSEL]: Do you understand that you are
giving up then your right to testify in your
own behalf?
THE DEFENDANT: Yes.
[COUNSEL]: Are you doing so freely and
voluntarily?
THE DEFENDANT: Yes.
16 A-3328-13T2
[COUNSEL]: And no one is forcing you to do
that?
THE DEFENDANT: Yes – I mean no.
[COUNSEL]: Are you doing it voluntarily?
THE DEFENDANT: Yes.
[COUNSEL]: Are you under the influence of any
alcohol or drug that would cloud your thoughts
this morning?
THE DEFENDANT: No.
[COUNSEL]: Thank you.
THE COURT: Has your attorney had the
opportunity to fully explain to you your
options and the ramifications or the effect
of each decision you make as to whether to
testify or not testify in this case?
THE DEFENDANT: Yes.
THE COURT: Do you have any further questions
you need to discuss with [counsel] with
respect to your decision not to testify?
THE DEFENDANT: No.
It is clear from this colloquy that trial counsel advised
defendant of his right to testify, he freely and voluntarily waived
that right, and he was not forced to do so. Trial counsel's
performance in this regard was not deficient.
IV.
We have considered defendant's contentions in Points I and
II of his pro se supplemental brief in light of the record and
17 A-3328-13T2
applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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