STATE OF NEW JERSEY VS. COREY CAUTHEN (09-01-0006, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-1472-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY CAUTHEN,
a/k/a JAMES MARROW,
Defendant-Appellant.
________________________
Submitted October 7, 2021 – Decided October 20, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 09-01-0006.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, on the brief).
PER CURIAM
This post-conviction relief (PCR) case returns to us after remand
proceedings directed by our previous opinion. See State v. Cauthen, No. A-
2789-16 (App. Div. Apr. 27, 2018) (Cauthen II).1 In that decision, we ordered
the trial court to conduct "an evidentiary hearing on defendant's claim that [his]
trial counsel rendered ineffective assistance by failing to investigate and call
[Tanicia] Thompson as an alibi witness" at the trial. Id. at 5.
On remand, Judge Miguel de la Carrera held a hearing to address this
issue. The State called defendant's trial attorney, Raymond Morasse, Esq. as a
witness and defendant testified on his own behalf. At the conclusion of the
hearing, Judge de la Carrera denied defendant's PCR petition and fully explained
the basis for his ruling in a thorough written decision.
Defendant appeals from the December 5, 2018 order memorializing the
judge's decision. We affirm.
As noted in Cauthen II, defendant submitted a certification 2 stating \ he
was with Thompson in her apartment at the time of the shooting that resulted in
1
We also incorporate herein the procedural history and facts set forth in our
opinion on defendant's direct appeal. State v. Cauthen, No. A-0591-12 (App.
Div. June 9, 2014) (Cauthen I), certif. denied, 220 N.J. 100 (2014), cert. denied,
577 U.S. 836 (2015).
2
This certification is dated October 20, 2016.
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the charges against defendant and his co-defendant, Asmar Bease, occurred. Id.
at 2-3. Defendant alleged he told his "trial counsel about his alleged alibi, but
counsel failed to interview Thompson or call her to testify at trial." Id. at 3.
At the evidentiary hearing, Morasse disputed the information defendant
provided in his certification. Morasse testified he spoke to Thompson on at least
two occasions about the claimed alibi. Both times, Thompson's accounts "didn't
match up with what [Thompson] had told the police" when they interviewed her.
Morasse also spoke to Thompson's friend, Kelly, but "[h]er account also did not
corroborate Ms. Thompson's account in any way." A third individual, Delilah
Bailey, also gave "somewhat contradictory" information concerning defendant 's
location at the time of the shooting.
Morasse testified he advised defendant Thompson was not a viable alibi
witness and recommended not calling her at trial. Morasse explained that
Thompson "was not a credible alibi witness and [he] was concerned that by
calling her, [Morasse] would not only allow the State to very easily discredit
her, but [he] would harm [defendant] by possibly causing" a prior recorded
statement he gave to the police to be admitted at the trial.
Morasse was concerned that if Thompson testified contrary to what
defendant told the police in his statement, the State would attempt to introduce
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defendant's statement to rebut her assertions. Morasse wanted to keep
defendant's statement out of play because he knew it contained "very, very
damning information and statements[,]" including defendant's admissions that
he was a gang member, sold drugs on the day of the shooting, and had other
charges pending against him. Therefore, Morasse made the tactical decision not
to call Thompson as an alibi witness.
Defendant initially denied that Morasse ever spoke to him about not using
Thompson as a witness. However, he later admitted he asked Morasse about
Thompson and Bailey during a conference and that Morasse told him "they're
not a good look, we're not going to call them."
Defendant also admitted that before claiming an alibi in his October 20,
2016 certification, he gave co-defendant Bease a certification to use in Bease's
PCR proceeding.3 In that certification, defendant alleged he shot the victim and
that Bease had no role in the incident. When confronted with this inconsistency,
defendant maintained both of his statements were true.
After observing both Morasse and defendant on the witness stand, Judge
de la Carrera found Morasse's testimony "to be utterly credible in all important
3
This certification is dated October 21, 2015.
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respects." On the other hand, the judge determined that defendant contradicted
himself throughout his testimony and was "not . . . credible at all."
Accordingly, the judge ruled that defendant failed to satisfy the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
showing that trial counsel's performance was deficient and that, but for the
deficient performance, the result would have been different. Because Morasse
adequately investigated defendant's claimed alibi defense, Judge de la Carrera
found
[t]here was nothing about trial counsel's efforts and
performances on behalf of . . . defendant which this
[c]ourt finds to have been objectively unreasonable or
deficient nor does the [c]ourt find that . . . defendant
established a reasonable probability that, but for
[Morasse's] conduct of the trial, (or pre-trial
proceedings) that the result in this trial would have been
any different.
This appeal followed.
On appeal, defendant repeats the same contention he unsuccessfully raised
before Judge de la Carrera and again argues that his "convictions must be
reversed because trial counsel was ineffective for failing to investigate and call
Tanicia Thompson as an alibi witness." This contention lacks merit.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he is entitled to the requested relief.
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State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the defendant must allege and articulate specific
facts that "provide the court with an adequate basis on which to rest its decision."
State v. Mitchell, 126 N.J. 565, 579 (1992).
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obligated to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of this test, the defendant must demonstrate 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.
Under the second prong, the defendant must show "that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different ."
Id. at 694. There is a strong presumption that counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." Id. at 690.
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Moreover, the acts or omissions of counsel of which a defendant
complains must amount to more than mere tactical strategy. Id. at 689. As the
Supreme Court observed in Strickland:
[a] fair assessment of attorney performance requires
that every effort be made 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.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action "might be
considered sound trial strategy."
[Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).]
Where, as here, the judge conducts an evidentiary hearing, we must
uphold the judge's factual findings, "so long as those findings are supported by
sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440
(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we
defer to a trial judge's findings that are "substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Ibid. (alteration in original)
(quoting Robinson, 200 N.J. at 15).
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Having considered defendant's present contention in light of the record
and these well-established principles, we discern no basis for disturbing Judge
de la Carrera's determination that defendant failed to satisfy the Strickland test.
Contrary to defendant's baseless assertions, credible evidence in the record
demonstrates that Morasse fully investigated defendant's alibi and made a sound
tactical decision not to call Thompson as a witness. Accordingly, we affirm the
judge's denial of defendant's PCR petition substantially for the reasons detailed
at length in his written decision.
Affirmed.
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