STATE OF NEW JERSEY VS. OREADER CALLAWAY (13-08-0662, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-5304-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OREADER CALLAWAY,
Defendant-Appellant.
________________________
Submitted March 8, 2021 – Decided November 18, 2021
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No.
13-08-0662.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
SMITH, J.A.D.
Defendant appeals from the June 17, 2019 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm for the reasons set forth below.
I.
Because we heard this matter on direct appeal, State v. Callaway
(Callaway I), No. A-4413-14 (App. Div. June 29, 2017) (slip op. at 2-3), we
incorporate its factual narrative for brevity's sake. We recite only those facts
germane to resolving the issues on appeal before us.
On the morning of June 30, 2012, Barbara Glaspey was asleep in her home
when she suddenly heard a loud noise. She awoke to a man breaking into her
bedroom threatening to kill her. The man gestured, with a covered hand that
was outstretched as though it contained a weapon, and instructed Glaspey to put
all of her jewelry and money into empty pillowcases.
Meanwhile, Glaspey's neighbor, Scott Lang, noticed what appeared to be
a fire department vehicle (a red truck with white lettering on the side) parked
outside of Glaspey's home. Fifteen minutes after making this observation,
Glaspey came to his home and told him what had happened to her. Mr. Lang
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then called the police to report the incident and provided them with a description
of the vehicle.
Shortly thereafter, Officer Gerald McCreery received a call on his police
radio informing him of the reported burglary. The call relayed the details of the
incident, including the description of a red, flat-body pickup truck with white
lettering on the side. Officer McCreery departed for the burglarized home, but
as he neared the location of the reported incident, he noticed a truck matching
the vehicle description parked at a 7-Eleven.
Officer McCreery immediately turned his vehicle around and pulled into
the 7-Eleven parking lot. He exited his vehicle and verified that the red truck
he observed was nearly identical to the description of the suspect's vehicle.
Looking into the truck's flatbed, the officer saw it contained pillowcases with
valuables stuffed inside, as well as a flat screen TV. Officer Daniel Hider then
arrived on the scene. The record shows that the officers obtained a description
of the suspect from a witness, J.P., who stated that he observed defendant park
and exit the vehicle at the 7-Eleven. The officers were also in possession of
Glaspey's description of the suspect. Finally, the record also shows that
defendant, who was sweating profusely on a cool day, was apprehended by the
officers near the store shortly thereafter.
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A grand jury returned Indictment Number 13-08-0662, charging
defendant with first-degree kidnapping, first-degree robbery, third-degree
receiving stolen property, fourth-degree resisting arrest, third-degree terroristic
threats, and second-degree burglary. The trial took place on January 13, 2015,
and the jury convicted defendant of first-degree robbery, second-degree
kidnapping, second-degree burglary, third-degree terroristic threats, and two
counts of receiving stolen property. On February 27, 2015 defendant was
sentenced to life in prison on the count of first-degree robbery, and he also
received a series of lesser concurrent sentences. On direct appeal, we affirmed
as to all issues. See Callaway I.
Defendant filed a timely PCR application through counsel and added a
supplemental pro se application raising additional issues. The PCR judge, the
Hon. Joseph M. Chiarello, J.S.C., heard argument on June 17, 2019 and denied
defendant's application in its entirety. After thoroughly reviewing the trial
record and the issues disposed of on direct appeal, the judge issued a detailed
and cogent oral opinion with specific findings on each PCR claim.
The judge first addressed defendant's ineffective assistance of counsel
claim. Defendant maintained that his counsel was ineffective for two reasons:
because counsel "failed to fully investigate the circumstances of his arrest" and
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because of "inconsistencies [in the] testimony from the [arresting] officers."
Regarding the inconsistent testimony, defendant argued that his trial counsel
should have ordered a copy of the Salem County municipal court transcript
because it would have demonstrated these alleged discrepancies and allowed
trial counsel to impeach the credibility of the two officers. The judge found that
the record adequately addressed both claims.
Specifically, he found that we addressed "the circumstances of the arrest"
in Callaway I by concluding that the totality of the circumstances provided the
officers with probable cause to arrest the defendant. Callaway I, slip op. at 10.
The judge also found, after lengthy oral argument, that there was no inconsistent
testimony from the arresting officers. He determined that that the trial record
showed the officers spoke to the witness at the 7-Eleven together, not separately,
as argued by the defense. Based on the entire record developed at defendant's
trial and subsequent appeal, the judge concluded that failing to obtain the
municipal court transcript was not ineffective assistance of counsel.
Defendant's PCR application also contained an impermissible bolstering
argument regarding footprint evidence proffered by the State at trial. In
evaluating this claim, the judge noted that the State's witness did not testify that
the footprint belonged to defendant's shoe, but rather that the footprint she
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observed matched the style of defendant's shoe. The judge examined the
foundation laid prior to her testimony and found that none of the questions posed
to her constituted bolstering.
Next, the judge reviewed defendant's pro se claims, including: "not calling
a witness, failing to object to [certain trial] stipulations, failing to call [a] State
witness, and failing to object to the introduction of evidence." The judge
concluded that these claims were unsupported, rendering them "bald assertions."
Finally, the judge found that if there had been any errors, they were not
prejudicial ones which would have changed the outcome of the trial under
Strickland.1 See State v. Preciose, 129 N.J. 451, 463 (1992). Appealing the
PCR decision, defendant makes the following arguments:
POINT ONE
THE PCR COURT ERRED IN DENYING MR.
CALLAWAY AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM PRE-TRIAL
COUNSEL REGARDING HER FAILURE TO
PROPERLY INVESTIGATE AND OBTAIN THE
SALEM COUNTY 404(B) TRANSCRIPTS AND
NEW JERSEY STATE POLICE RECORDING TO
IMPEACH THE CREDIBILITY OF STATE
WITNESSES. (RAISED BELOW)
1
Strickland v. Washington, 466 U.S. 668, 694 (1984).
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POINT TWO
THE PCR COURT ERRED IN DENYING MR.
CALLAWAY AN EVIDENTIARY HEARING
REGARDING THE ISSUE OF THE STATE
BOLSTERING THE CREDIBILITY OF A LAY
WITNESS. (RAISED BELOW)
II.
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State
v Harris, 181 N.J. 391, 421 (2004)). When petitioning for PCR, a defendant
must establish he is entitled to "PCR by a preponderance of the evidence." State
v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) (quoting Preciose, 129
N.J. at 459).
We analyze ineffective assistance of counsel claims by using the two-
prong test established by the Supreme Court in Strickland. See Preciose, 129
N.J. at 463; see also State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of
the Strickland test requires a defendant to establish counsel's performance was
deficient. Preciose, 129 N.J . at 463. "The second, and far more difficult, prong
is whether there exists 'a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different.'"
Id. at 463-64 (quoting Strickland, 466 U.S. at 694).
There exists a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice
is not presumed, defendant must demonstrate how specific errors by counsel
undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super
283, 289-90 (App. Div. 2002) (citing United States v. Cronic, 466 U.S. 648, 659
n.26 (1984)).
III.
Defendant argues that his trial counsel was ineffective for failing to pursue
what he argues were inconsistencies in the testimony of Officers McCreery and
Hider regarding facts surrounding the identification of defendant while the
officers were searching for him, prior to his apprehension. We disagree, as this
argument is premised upon facts not in the record. A review of the testimony
indicates that defendant's current recollection is inaccurate.
While defendant claims that both officers testified as to having been the
only one to speak to J.P. and obtain a description of defendant, the actual
testimony adduced at trial from both officers tells a clearly different, united
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story. Officer McCreery arrived at the 7-Eleven, followed by Officer Hider
shortly thereafter. The officers met at the front of the store, where Officer Hider
then shouted for the customers within to tell them who was driving the red truck
in the parking lot. In response, an individual at the front of the store said out
loud, and in the hearing range of both officers, a description of defendant who
had been seen with the red truck. Both officers then testified consistently at trial
that they heard this description of defendant and acted upon this information.
This account of the events was clearly articulated by both officers in their
testimony, and the supposed contradictions asserted by defendant are not
supported in the record. Defendant has failed to show ineffective assistance of
counsel where there was no contradiction in the arresting officers' testimony for
trial counsel to exploit. No evidentiary hearing is warranted under these facts.
See State v. Porter, 216 N.J. 343, 355 (2013) (citations omitted).
We turn to defendant's next argument, in which he contends that the State
improperly bolstered its witness testimony at trial. Our de novo review of the
record leads us to conclude that there was no basis in the record to conduct an
evidentiary hearing, substantially for the reasons set forth by Judge Chiarello in
his comprehensive oral opinion.
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Any arguments not addressed here are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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