STATE OF NEW JERSEY VS. JUQUAN WALKERÂ (10-10-2488 AND 10-10-2491, 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NOT FOR PUBLICATION WITHOUT THE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-3724-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUQUAN WALKER, a/k/a JAQUAN WALKER,
Defendant-Appellant.
__________________________________________________
Submitted May 31, 2017 – Decided July 21, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
Nos. 10-10-2488 and 10-10-2491.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carolyn V. Bostic, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Juquan Walker appeals the denial of his petition
for post-conviction relief (PCR) without an evidentiary hearing.
Tried before a jury, defendant was found guilty of drug offenses,
as well as unlawful possession of a firearm, N.J.S.A. 2C:39-5(b),
and possession of a firearm while in the course of committing
certain drug offenses, N.J.S.A. 2C:39-4.1. In a second trial, the
same jury found defendant guilty of possession of a firearm by a
previously convicted person, N.J.S.A. 2C:39-7(b), the sole charge
contained in a second indictment.1
We briefly summarize the evidence adduced at trial.
Officers Patrick Carroll and John Berardi of
the Port Authority Police Department were
working in the camera room at Newark Penn
Station on August 25, 2010. At approximately
8:50 p.m., they observed defendant and two
other individuals jump over the turnstiles
which separate the Port Authority Trans-Hudson
(PATH) and New Jersey Transit (NJT) sides of
the train platform. Berardi noted that
defendant was carrying a backpack. After
seeing defendant and his companions enter a
PATH train, the officers left the camera room
and approached the three men to issue
summonses for failure to pay the fare.
Defendant claimed to be seventeen years
old, but, when Carroll told defendant that,
based on the birthdate defendant supplied, he
was eighteen, defendant pushed Carroll and
fled. The officers gave chase through the
turnstiles and onto the NJT platform. As
defendant ran, he threw the backpack onto the
empty NJT tracks.
1
Prior to sentencing, defendant pled guilty to second-degree
burglary, N.J.S.A. 2C:18-2, a charge contained in a third
indictment.
2 A-3724-15T3
Carroll pursued defendant until he ran
into a closed set of doors, whereupon the two
collided. Defendant resisted Carroll's
efforts to place him under arrest. Berardi
joined the fray, and defendant was eventually
subdued. Carroll walked onto the tracks and
retrieved the bag that defendant had thrown.
Inside was some cash, toothbrushes, clothing,
a hand gun, twenty-four bags of marijuana, ten
packets of cocaine and three separate vials
of cocaine. Defendant's companions were never
located.
Defendant was transported to the hospital
by emergency medical personnel. He was treated
for a laceration above his left eye and a
contusion. Defendant did not testify and no
defense witnesses were called.
[State v. Walker, No. A-5625-11 (App. Div.
Aug. 19, 2014) (slip op. at 4-5).]2
We affirmed defendant's convictions on direct appeal. Id. at 21.
The Supreme Court denied his petition for certification. 220 N.J.
574 (2015).
Defendant filed a timely pro se PCR petition that he
supplemented after appointment of PCR counsel. Defendant
certified he was "innocent" of the weapons offenses, he advised
trial counsel the weapon was not in the backpack and the officers
2
Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).
3 A-3724-15T3
"must have picked up the rusty handgun from the train tracks."
Defendant claimed he wanted to testify as to these facts, but
trial counsel told him not to do so, given defendant's record of
prior convictions. According to defendant, trial counsel assured
he would raise the "issue of the handgun not being in the back
pack" before the jury, but failed to do so.
Trial counsel filed a certification stating he could not
recall if defendant raised any issue "regarding the rusty handgun
not being inside of the backpack," or whether he had discussions
with defendant about that. Trial counsel also could not recall
if defendant "desired to testify regarding this issue."
At oral argument, PCR counsel briefly reiterated defendant's
claim that trial counsel provided ineffective assistance (IAC) by
failing to argue the gun was on the tracks, not in defendant's
backpack. Judge Michael L. Ravin, who was not the trial judge,
reserved decision and subsequently issued a comprehensive written
decision that accompanied his January 29, 2016 order denying
defendant's petition.
The judge extensively reviewed the trial testimony, as well
a defense counsel's summation, in which he twice questioned the
officers' account of recovering the gun from the backpack. Judge
Ravin noted testimony regarding the rusty condition of the gun,
and concluded the jury was capable of inferring that the gun was
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not in the pack, as implied by defense counsel. The judge
concluded defendant failed to establish trial counsel's
performance was deficient.
Judge Ravin also concluded defendant failed to demonstrate
trial counsel "interfered with [defendant's] right to testify."
He noted the transcript revealed defendant "was informed of his
options and strategically chose not to testify . . . in order to
prevent his criminal record from coming into evidence before the
jury."
Additionally, the judge determined that even if trial
counsel's "failure to raise the rusty handgun issue constituted
deficient performance," defendant failed to demonstrate any
prejudice resulted. Judge Ravin noted the jury viewed "video
evidence" showing defendant with the backpack and heard testimony
that the officers found the gun in that backpack.
Lastly, the judge concluded defendant was not entitled to an
evidentiary hearing because he failed to establish a prima facie
IAC claim. Judge Ravin summarized his findings and conclusions
as follows:
The record of the proceedings shows that
[defendant's] counsel did raise the
possibility that the handgun was not found in
[defendant's] backpack and suggested that the
officers testified falsely. The jury was also
informed about the rustiness of the gun
through the State's ballistic experts and was
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free to draw reasonable inferences therefrom.
While not delving into the details of rust
formation, [trial counsel's] performance,
given the facts of this case, was well within
the range of competence expected of reasonable
defense counsel. . . . Additionally, [trial
counsel] and the court took sufficient steps
to ensure that [defendant] based his decision
not to testify on an informed, free choice.
Finally, the certification of [trial counsel]
shows that he does not recall conversations
with [defendant] regarding the rusty handgun
issue.
Defendant urges us to reverse Judge Ravin's order and remand
the matter for an evidentiary hearing on his IAC claim. He
contends trial counsel's failure to raise "the defense that the
police actually found the rusty gun on the train track" as promised
was not "sound legal strategy" but, rather, ineffective
assistance, upon which defendant "detrimentally relied upon" in
waiving his right to testify. We affirm substantially for the
reasons expressed by Judge Ravin. We only add these comments.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). He must first demonstrate "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed
. . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52
6 A-3724-15T3
(quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693).
To satisfy prong one, [a defendant] ha[s] to
overcome a strong presumption that counsel
exercised reasonable professional judgment
and sound trial strategy in fulfilling his
responsibilities. [I]f counsel makes a
thorough investigation of the law and facts
and considers all likely options, counsel's
trial strategy is virtually unchallengeable.
Mere dissatisfaction with a counsel's exercise
of judgment is insufficient to warrant
overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013)
(citations and internal quotation marks
omitted) (third alteration in original).]
We apply a "highly deferential standard, which requires us to
avoid viewing counsel's performance through the 'distorting
effects of hindsight.'" State v. Hess, 207 N.J. 123, 147 (2011)
(quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694).
Second, a defendant must show by a "reasonable probability"
that the deficient performance affected the outcome. Fritz, supra,105 N.J. at 52. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v.
Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra,105 N.J. at 52). "If [a] defendant establishes one prong of the
7 A-3724-15T3
Strickland-Fritz standard, but not the other, his claim will be
unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
A defendant is entitled to an evidentiary hearing "only upon
the establishment of a prima facie case in support of post-
conviction relief," i.e., he must "demonstrate 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." R. 3:22-10(b). "In order for a claim of ineffective
assistance of counsel to entitle a PCR petitioner to an evidentiary
hearing, bald assertions are not enough — rather, the defendant
must allege facts sufficient to demonstrate counsel's alleged
substandard performance." State v. Jones, 219 N.J. 298, 311-12
(2014) (internal quotation marks omitted). "[W]e review under the
abuse of discretion standard the PCR court's determination to
proceed without an evidentiary hearing." State v. Brewster, 429
N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall,
148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140,
139 L. Ed. 2d 88 (1997)).
Here, trial counsel's summation focused extensively on the
lack of any video corroborating much of the officers' testimony,
including the seizure of defendant's backpack, law enforcement's
allegedly shoddy handling of the handgun after it was seized, and
its rusty condition. He repeatedly suggested the jury should
8 A-3724-15T3
question "where [the police] even got the weapon from." In short,
counsel effectively sought to raise a reasonable doubt that
defendant possessed the gun or that it was seized from his
backpack. There was nothing deficient about trial counsel's
performance.
Defendant's suggestion that he elected not to testify because
he expected counsel to raise the issue lacks any merit. The record
reveals defendant knowingly, willingly and voluntarily waived his
right to testify after the State rested and immediately before
summations.
Affirmed.
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