STATE OF NEW JERSEY VS. ALAMEEN ADAMS (10-07-1735, 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NOT FOR PUBLICATION WITHOUT THE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-4226-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALAMEEN ADAMS,
Defendant-Appellant.
________________________
Argued November 15, 2021 – Decided December 7, 2021
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-07-1735.
John J. McMahon argued the cause for appellant.
Lila B. Leonard, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Lila B. Leonard, of counsel
and on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Alameen Adams appeals from a February 28, 2020 order
denying his second petition for post-conviction relief (PCR) without an
evidentiary hearing. We reverse and remand to the trial court to conduct an
evidentiary hearing on defendant's ineffective assistance of counsel claims.
The facts leading to defendant's convictions for murder, robbery, and
weapons offenses are stated in our prior decisions on defendant's direct appeal,
State v. Adams, No. A-727-11 (App. Div. March 26, 2013), certif. denied, 216
N.J. 7 (2013), and defendant's first PCR petition, State v. Adams, No. A-4688-
16 (App. Div. June 4, 2018). We briefly recite the relevant facts to give context
to defendant's arguments raised in his second PCR petition.
Michael Potts and Abdul Simpkins went to buy marijuana from Ian
Morris. Defendant accompanied Potts and Simpkins to Morris's apartment
building.1
Defendant walked to the back of the apartment building and Potts saw
defendant enter the building. Potts attempted to gain access to the building
through a different door, but the door was locked. Potts then waited a while for
defendant to return. Based on the passage of time, Potts believed the drug
1
Morris's apartment building contained eighty-four separate apartment units.
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purchase fell through, so he went to a nearby restaurant and ordered food.
Thereafter, Potts walked to another apartment building to visit a different friend.
At the second apartment building, Potts saw defendant. According to
Potts, defendant said he "bodied" someone. 2 Potts also saw a bulge in
defendant's jacket, implying defendant had a weapon. However, on cross-
examination by defense counsel during trial, Potts admitted he never told the
police about seeing a bulge in defendant's jacket.
Morris, whose body was found on the fifth-floor landing by a resident of
the apartment building, had a gunshot wound to his head. The resident called
the police.
Upon arriving at the scene, the police confirmed Morris was dead. The
police found items related to drug trafficking near the body, including loose
marijuana, a scale, plastic bags, and a cell phone. No shell cases were found.
The police were unable to locate any eyewitnesses to the shooting. No other
physical evidence was found at the scene.
There were several security cameras located around Morris's apartment
building, which recorded video from the night of the shooting. The videotapes
2
Potts testified the term "bodied" meant someone had been killed.
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led police to question Potts, who was seen in the recordings with another man.
Potts identified defendant as the second man in the videotape recordings.
The recordings, introduced as evidence during defendant's trial, showed
defendant using the rear entrance to gain access to Morris's apartment building
at 5:47 p.m. A security camera located at the front of the building showed
defendant exiting the building at 5:56 p.m.
The State's evidence at trial included the videotapes from the security
cameras at Morris's apartment building on the night of the shooting. The State
also introduced testimony from Potts and Detectives Holt Walker and Vincent
Apicelli who took part in the shooting investigation.
In cross-examining Detective Walker, defendant's trial attorney elicited
testimony that Potts and Simpkins both told the police defendant entered the
apartment building to rob Morris. The detective's statement was the only
testimony adduced showing that a robbery occurred on the night of the shooting.
There was no physical evidence supporting a robbery. No other witnesses
offered testimony about a robbery.
Defense counsel elicited additional inculpatory and inadmissible hearsay
evidence during his cross-examination of Detective Walker. The detective
testified defendant's arrest was based on statements provided to the police by
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Potts and Simpkins. Walker stated Potts and Simpkins gave statements that
defendant shot Morris on the fifth floor of the apartment building. However,
the State presented no testimony or statement by either Potts or Simpkins
identifying where Morris was shot. Defense counsel elicited further hearsay
testimony when Walker testified Simpkins informed the police defendant
confessed to "bod[ying] the guy."
After Detective Walker completed his testimony, the State announced
Simpkins would not be called as a trial witness. Consequently, there was no
testimony from Simpkins regarding a robbery, the location of the shooting, or
any other facts related to the shooting.
Defense counsel prompted damaging testimony from Detective Apicelli
that Simpkins identified defendant as having committed the crime . While the
judge instructed the jury to disregard Apicelli's testimony about Simpkins's
hearsay statements to the police, the judge did not give a similar instruction
regarding Detective Walker's testimony related to Simpkins's statements.
After an unsuccessful direct appeal and denial of his first PCR petition,
defendant filed a second PCR petition. In the second PCR petition, defendant
alleged his appellate counsel and first PCR counsel provided ineffective
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assistance by failing to challenge his trial counsel introducing prejudicial and
inadmissible hearsay evidence during cross-examination.
The second PCR judge heard counsels' arguments. In a February 28, 2020
order, accompanied by a twenty-eight page written decision, the judge denied
defendant's second PCR petition. The judge held defendant's second PCR
petition was not time barred because defendant's arguments addressed
ineffective assistance of counsel claims directed to his appellate counsel and
first PCR counsel, satisfying the requirements of Rule 3:22-2.3
In reviewing defendant's second PCR petition on the merits, the judge
found defendant failed to establish a prima facie case of ineffective assistance
of counsel under either prong of the Strickland/Fritz analysis.4 Without
conducting an evidentiary hearing, the judge determined defense counsel's
questions posed to the detectives "were not intended to elicit hearsay, rather to
highlight the weaknesses in the State's case. The statements were not offered
for the truth of the matter asserted."
3
Significantly, the State did not file a cross-appeal from the judge's decision
declining to find a procedural bar to defendant's second PCR petition.
4
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
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The PCR judge noted the State raised a hearsay objection to defense
counsel's questions during Detective Walker's cross-examination and defense
counsel responded, "I am not asking what Mr. Simpkins said. I am just asking
if the statements were conflicting." Based on defense counsel's response to the
trial judge, the second PCR judge concluded the questions were "a strategic
move by [t]rial [c]ounsel." The judge held "[w]hen [t]rial [c]ounsel's questions
are viewed within the context of his summation, it is evident the decision to
bring out small portions of Simpkins['s] statements was a strategic one."
In his counseled brief, defendant argues the following:
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
HIS ATTORNEY WAS INEFFECTIVE IN
ELICITING INCULPATORY AND INADMISSIBLE
HEARSAY THAT CORROBORATED THE STATE'S
MAIN WITNESS AND SUGGESTED
UNFAVORABLE FACTS NOT IN EVIDENCE.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS, AND PETITIONS FOR POST[-]
CONVICTION RELIEF.
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B. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEY ELICITED INCULPATORY AND
INADMISSIBLE HEARSAY TESTIMONY
DEVASTATING TO HIS DEFENSE AT TRIAL.
In his supplemental pro se brief, defendant argues the following point:
THE PCR COURT ERRED IN ITS RULING THAT
DEFENDANT WAS NOT DEPRIVED OF HIS SIXTH
AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS ELICITING
HEARSAY STATEMENTS OF A NON-TESTIFYING
WITNESS, WHICH UNDERMINED DEFENDANT'S
DUE PROCESS RIGHT TO A FAIR TRIAL,
THEREFORE THE CONVICTION SHOULD BE
REVERSED AND A NEW TRIAL ORDERED.
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).
A hearing is only required when (1) a defendant establishes a prima facie case
in support of PCR; (2) the court determines there are disputed issues of material
fact that cannot be resolved by review of the existing record; and (3) the court
determines an evidentiary hearing is required to resolve the claims asserted.
State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). In reviewing
an ineffective assistance of counsel claim, an evidentiary hearing should
ordinarily be granted "because the facts often lie outside the trial record . . . ."
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Ibid. (quoting State v. Preciose, 129 N.J. 451, 462 (1992)). A PCR petition
must be accompanied by assertions based on the record, setting forth with
particularity "facts sufficient to demonstrate counsel's alleged substandard
performance." Id. at 355 (quoting State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999)); see also R. 3:22-10(c). We must consider a defendant's
contentions "indulgently," by viewing the asserted facts in the light most
favorable to the defendant. Cummings, 321 N.J. Super. at 170.
Having reviewed the record, we are satisfied the second PCR judge
mistakenly exercised her discretion by denying defendant's request for an
evidentiary hearing and we remand the matter for the trial court to conduct a
hearing. In reviewing the transcript of the testimony from the detectives' cross-
examination, it appears defense counsel did not anticipate certain responses to
his questions. For example, defense counsel asked Detective Walker if
defendant's arrest was based on the videotapes showing defendant entering and
exiting Morris's apartment building. The detective answered the videotapes
were "not what I based the arrest warrant on. I just told you [the] arrest warrant
was on the statement of Michael Potts . . . statement from Abdul Simpkins . . .
." There were other instances on cross-examination where Detective Walker
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responded to defense counsel's questions by stating "[b]ased upon statements
from Michael Potts, Abdul Simpkins."
The State objected to Detective Walker's cross-examination testimony
referring to statements by Simpkins as improper hearsay. In response, defense
counsel advised the judge "I am not asking what Mr. Simpkins said. I am just
asking if the statements were conflicting [with the statements made by Potts]."
The judge overruled the State's objection and defense counsel questioned
Detective Walker regarding inconsistencies in the statements provided to the
police by Potts and Simpkins. The detective explained he was unable to answer
defense counsel's questions without reviewing the audio recording of the
statements. At best, Walker testified it was "possible" the statements of Potts
and Simpkins conflicted. However, because the detective could not recall the
statements, defense counsel was unsuccessful in his effort to have Detective
Walker agree there were inconsistencies in the statements given by Potts and
Simpkins.
During a sidebar conference, the judge raised a concern regarding the
detectives' testimony in which they repeated statements allegedly made by
Simpkins. The judge advised she would "give a curative instruction that there's
no statement [from Simpkins]." After considering the matter during a brief court
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recess, the State told the judge it objected to any curative instruction about the
hearsay statements elicited during Detective Walker's cross-examination.
The judge clarified she would tell the jury "in response to [defense
counsel]'s questions the detective discussed a statement that may or may not
have been given from Mr. Simpkins. We have no statement from Mr. Simpkins
. . . . " She also stated she would tell the jury not to "speculate as to any statement
or speculat[e] as to who may be involved in that statement or whether in fact the
statement was made."
The judge then asked if defense counsel reviewed Simpkins's audio
recorded statement to the police. Counsel advised he reviewed Simpkins's
statement but made no proffer to the judge regarding the content of the
statement. Defense counsel merely argued "whether it's credible or not is for
the jury to determine." Defense counsel claimed it was appropriate for the jury
to know Simpkins made a statement to the police. However, the judge ruled the
statement's "[c]ontents [we]re not coming in."
After this exchange, the judge obtained counsels' agreement that the jury
would be told Simpkins's "statement is not before you and please do not
speculate as to what may be in that statement." Regarding Detective Walker's
testimony on cross-examination, the judge told the jury, "in response to a
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question from [defense counsel] about a statement that was given by Mr.
Simpkins, I think that testimony, the contents of that statement is not before you,
there is no statement here that's before you, all right? . . . . please do not speculate
as to what may be in that statement because that statement is not before you."
While defense counsel claimed his cross-examination of Detective Walker
focused on potential conflicts in the statements given by Potts and Simpkins,
there was no evidence presented during the trial regarding the content of
Simpkins's audio recorded statement. In fact, the judge instructed the jury not
to speculated about any statements made to the police by Simpkins. Further, in
reviewing the trial transcripts, there is no evidence of any conflicts in the
statements provided to the police by Potts and Simpkins. During closing
argument, defense counsel never even mentioned "possible" conflicting
statements by Potts and Simpkins. Thus, we are unsure how the second PCR
judge concluded defense counsel's questioning of Detective Walker "show[ed]
the jury that there were conflicts in the statements the State relied on."
In reviewing defense counsel's summation, none of the points argued to
the jury referenced Detective Walker's hearsay testimony during cross-
examination. In closing argument, defense counsel highlighted the absence of
Simpkins as a testifying witness and focused on relationship between Simpkins
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and Morris as drug dealers in explaining why the jury should find defendant not
guilty. Because Simpkins's audio recorded statements to the police were not
admitted as evidence and Simpkins never testified at trial, we are unable to
discern defense counsel's actual litigation strategy in eliciting damaging hearsay
testimony from Detective Walker regarding statements ascribed to Simpkins.
On this record, after reviewing the trial testimony and defense counsel's
closing argument, defendant demonstrated he failed to receive adequate legal
representation because his trial attorney elicited inculpatory and inadmissible
hearsay corroborating the State's main witness, Potts, and suggesting
unfavorable facts not supported by the evidence. An evidentiary hearing is
required for defendant's trial counsel to explain his reasons for eliciting
inculpatory and inadmissible hearsay testimony from Detectives Walker and
Apicelli which seemingly undermined defendant's arguments for acquittal.
We were advised during oral argument that defendant's trial counsel still
actively practices law in this State. The assigned PCR judge should conduct an
evidentiary hearing to determine, with particularity, whether defendant's trial
counsel exercised reasonable trial strategy in eliciting hearsay testimony from
the State's testifying detective witnesses. Or, as defendant asserts, whether his
trial counsel made missteps when cross-examining the detectives without
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knowing the anticipated responses to the questions posed, resulting in the jury
hearing inculpatory and inadmissible hearsay testimony of a non-testifying
witness, and suggesting unfavorable facts not based on the evidence.
Accordingly, we remand this matter for an evidentiary hearing to address
defendant's trial counsel's basis for eliciting hearsay testimony from the
detectives given the mainly circumstantial evidence presented to the jury.
Reversed and remanded. We do not retain jurisdiction.
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