STATE OF NEW JERSEY VS. KEVIN A. VAUTERS (12-05-0795 AND 13-01-0029, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0906-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN A. VAUTERS,
Defendant-Appellant.
_______________________
Submitted January 5, 2021 – Decided February 2, 2021
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 12-05-
0795 and 13-01-0029.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order dated January 5, 2018, which denied his
petition for post-conviction relief (PCR). We affirm.
I.
Defendant was charged under Middlesex County Indictment No. 12-05-
0795 with first-degree murder of Eugene Lockhart, N.J.S.A. 2C:11-3(a)(1) or
(2) (count one); first-degree felony murder of Lockhart, N.J.S.A. 2C:11-3(a)(3)
(count two); first-degree armed robbery of Lockhart, N.J.S.A. 2C:15-1 (count
three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count four); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five); third-degree hindering his own detention,
apprehension, investigation, prosecution or conviction, N.J.S.A. 2C:29-3(b)(1)
(count six); third-degree hindering an investigation, N.J.S.A. 2C:29-3(b)(4)
(count seven); third-degree witness tampering of B.A. and H.R., N.J.S.A. 2C:28-
5(a)(1) (counts eight and nine); and attempted false incrimination of M.V.,
N.J.S.A. 2C:28-4(a) (count ten).1 Defendant also was charged under Middlesex
County Indictment No. 13-01-0029 with first-degree witness tampering of D.W.,
N.J.S.A. 2C:28-5(a) (count one). Defendant was tried before a jury in a single
proceeding on all charges.
1
We use initials to identify certain individuals to protect their privacy.
A-0906-18T4
2
II.
At the trial, the State presented evidence which showed that at 6:45 a.m.
on January 10, 2012, the police found Lockhart's body in Pittman Park in New
Brunswick. He had been shot once in the head at close range. The police found
several packets of heroin stamped "Fire Blood" on the ground near the body.
The heroin packets formed a trail going across the street from Pittman Park to
Feaster Park.
The zipper on Lockhart's pants was open. It appeared he had been
searched. Six packets of cocaine were found in Lockhart's mouth, and expert
testimony indicated that drug sellers often stash drugs in their mouths. The
police found a black wallet in Feaster Park, which contained Lockhart's
identification, driver's license, and several bank cards.
The medical examiner determined the bullet had traveled through
Lockhart's head and exited the back of his head. The wound was consistent with
a wound caused by a medium caliber bullet, like a .9mm or .357 bullet. The
medical examiner found the gunshot wound was the cause of death.
The police spoke with M.N., who was seen standing near Pittman Park as
the officers were searching the area. M.N. said he knew Lockhart and Lockhart
had been selling heroin and crack cocaine the previous night. M.N. saw
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defendant in the area around 2:50 a.m. M.N. said defendant told him he did not
like Lockhart, and he was going to rob him. At around 3:00 a.m., M.N. noticed
that defendant was in possession of a nickel-plated gun. He heard defendant tell
Lockhart he had three bags of cocaine to sell him, and he saw defendant and
Lockhart walk up the street together.
M.N. walked around the corner and was following a "kid" who was known
as "Blue." M.N. saw defendant and Lockhart talking. He saw Lockhart with his
pants down, and defendant was "running" his pockets. According to M.N.,
defendant had a shiny object in his hand. M.N. left the area because he did not
want to be involved. He asked Blue for the time, and he said it was around 4:21
a.m. M.N. then heard a gunshot and left the area.
An investigator from the Middlesex County Prosecutor's Office contacted
Lockhart's mother to inform her of Lockhart's death. She provided the
investigator with Lockhart's cellphone number. The investigator determined
that the phone was still operable. He obtained a warrant, and the police tracked
the location of the phone to a location on Carmen Street in New Brunswick.
Later, the police set up surveillance at that location and observed
defendant leave a house on Carmen Street. Defendant was found to be in
possession of two cellphones, one of which was Lockhart's phone. Defendant
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also was found to be in possession of six bags of heroin stamped "Fire Blood"
and two bags of heroin stamped "Nike."
The police informed defendant of his Miranda rights.2 Defendant waived
his rights and gave a statement to the police. He claimed a member of the Grapes
subset of the Crips gang had killed Lockhart. Defendant stated that he did not
know Lockhart well, and asserted that he was home by 1:00 a.m. on the night of
the murder.
Defendant said he had obtained one of the cellphones two or three days
earlier from a drug user in exchange for cocaine. The police told defendant the
phone was Lockhart's phone and Lockhart had used the phone to call his mother
the night before he was shot. Defendant could not explain the discrepancy. He
said he found the gun on Remsen Avenue at around 1:00 a.m. that morning.
The police executed a search warrant at defendant's home on Carmen
Street in New Brunswick. They found one .9mm cartridge on the floor of
defendant's bedroom. In the backyard, the police found a .9mm handgun, which
was wrapped in a blue shirt and stashed between a fence and an air conditioner.
The gun had a magazine with five unfired rounds, and one chamber contained a
spent cartridge casing. The gun and casing were tested and found to be operable.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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The police obtained surveillance footage from a camera located on the
corner of Remsen Avenue and Seamen Street. The surveillance footage showed
defendant walking with Lockhart, M.N., and another person at 2:50 a.m. to 2:57
a.m. on the day of the murder. Lockhart's mother testified that she spoke to her
son every day, and phone records showed that she spoke to Lockhart at 10:22
p.m. on January 9, 2012.
B.A. testified that he was defendant's close friend, even though defendant
was a member of the Bloods and he was a member of the Crips. B.A. said that
on the evening of January 9, 2012, he was with defendant from 8:00 p.m. to
10:00 p.m. Defendant drove B.A. around New Brunswick so that B.A. could
deliver drugs he had obtained from a drug user.
Defendant and B.A. stopped for gas between 8:00 p.m. and 9:00 p.m.
They saw D.W., who came to the car and told defendant he needed a ride to
Long Branch. D.W. claimed he had just been robbed at gunpoint by a person
with the street name of "Rells." Lockhart was known by that street name.
Defendant agreed to drive D.W. to Perth Amboy, where he could get a
train from there to Long Branch. During the ride, defendant told B.A. he had
loaned Lockhart his gun to commit a robbery, but Lockhart had not split the
proceeds with him. Defendant said he planned to rob Lockhart, and he wanted
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to do so in a dark spot, like near the park on Seamen Street. B.A. tried to talk
defendant out of robbing Lockhart, but defendant told him he was going to "bust
[Lockhart's ass]" and leave him "in the pit."
Defendant and B.A. dropped off D.W. in Perth Amboy and returned to
New Brunswick. Defendant left B.A. at 10:00 p.m., and B.A. did not see
defendant again that night. The following day, B.A. heard that Lockhart had
been killed. On January 10, 2012, at around 9:00 p.m., defendant called B.A.
on Lockhart's phone. He wanted to meet B.A. but B.A. refused to meet him at
that time. However, B.A. saw defendant later that night and told him he knew
what he had done. According to B.A., defendant just smirked.
Sometime later, D.W. was incarcerated on an unrelated matter. While
D.W. was in jail, he received threats against himself and his family. He was
told he would be killed if he "snitched" on defendant. D.W. was placed in
protective custody, but the threats continued. D.W. informed an investigator
about a threatening letter he received. The investigator testified about the letters
D.W. received and said they included statements gangs use as threats.
Defendant called Y.A. from jail. He told her he would be sending her a
letter, which would contain two letters. In another call, defendant told Y.A. he
wanted her to reach out to B.A., who was her former boyfriend. She later
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received a letter from the jail with no return address. It contained letters for
Y.A. to deliver to H.R. and B.A. The letter to H.R. asked him to say that on the
night Lockhart was killed, he saw a tall black man robbing him. The letter to
B.A. asked him to blame defendant's uncle for the murder.
The jury found defendant guilty of all charges. The jurors also answered
special interrogatories pertaining to the aggravating factors for sentencing on
the murder charge. The jury found defendant murdered Lockhart by his own
conduct while engaged in the commission of a robbery.
The judge sentenced defendant to a life sentence without parole for the
murder. The judge merged certain counts, and imposed concurrent sentences on
counts two, three, five, six, seven, and ten. The judge imposed a sentence of six
years on counts eight and nine, to be served consecutive to the sentence on count
one. In addition, the judge sentenced defendant to a consecutive term of thirteen
years for the witness tampering charged in Indictment No. 13-01-0029. The
judge entered a judgment of conviction (JOC) dated October 29, 2013.
III.
Defendant appealed from the JOC and his attorney raised the following
arguments:
POINT I
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THE COURT'S IMPROPER EXCLUSION OF
TESTIMONY FROM LOCKHART'S MOTHER
ABOUT THREATS HER SON HAD RECEIVED
COMPROMISED DEFENDANT'S RIGHT TO OFFER
SUPPORT FOR HIS CLAIM OF THIRD-PARTY
GUILT, VIOLATING HIS CONSTITUTIONAL
RIGHTS.
POINT II
THE COURT'S FAILURE TO PROVIDE THE JURY
WITH A LIMITING INSTRUCTION REGARDING
THE POST-HOMICIDE CHARGES DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND A FAIR TRIAL (Not Raised
Below).
POINT III
THE IMPOSITION OF THE SENTENCE OF LIFE
WITHOUT PAROLE WAS, UNDER THE
CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF
THE PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENTS U.S. CONST.,
AMENDS. VIII, XIV; N.J. CONST. (1947), ART. 1,
PAR. 12 (Not Raised Below).
Defendant filed a supplemental pro se brief in which he raised the
following arguments:
POINT [I]
Did the prosecutor[']s references that defendant was in
custody on an out-standing arrest warrant violate[] his
constitutional rights under state and federal law[?]
POINT [II]
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Did the prosecutor deny defendant a fair trial and due
process by withholding material evidence in violation
of both[], the Brady[3] rule, and the rules of discovery[?]
POINT [III]
Did the prosecutor deny the defendant a fair trial and
due process of law by using false testimony to gain an
unfair advantage over the defendant[?]
POINT [IV]
Because the prosecutor committed misconduct by
making misleading and confusing [innuendoes], and
factual assertions she knew were not supported by the
established facts of the DNA or scientific, forensic
evidence, . . . defendant [was denied] a fair trial[.]
POINT [V]
Did the prosecutor deny the defendant due process and
a fair trial by interfering with his rights to effectively
cross-examine, and elicit favorable information leading
to a potential [third] party[']s guilt[?]
POINT [VI]
. . . [T]he trial court [erred] by permitting, without any
instruction, defendant[']s involvement with the
[B]loods street gang[, which] violated his rights under
the Sixth, and Fourteenth Amendments to the [United
States Constitution] and [N.J.R.E.] 404(b)[.]
POINT [VII]
. . . [T]he trial court failed to give an immediate
instruction to the jury on how it is to use the other
crimes evidence, i.e., the CDS [Controlled Dangerous
Substance], the weapon, the evidence, and the arrest
warrant evidence[, which] violated defendant[']s state
and federal constitutional rights.
3
Brady v. United States, 397 U.S. 742 (1970).
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We rejected these arguments and affirmed defendant's convictions and
sentences. State v. Vauters, No. A-3503-13 (App. Div. Jan. 15, 2016) (slip op.
at 23). Defendant thereafter sought review of our judgment by filing a petition
for certification with the Supreme Court. The Court denied the petition. State
v. Vauters, 224 N.J. 529 (2016).
IV.
In May 2016, defendant filed a PCR petition in the Law Division, alleging
ineffective assistance of trial counsel. The court assigned counsel to represent
defendant, and counsel filed an amended petition, certification from defendant,
and supporting brief. On December 22, 2017, the PCR judge heard oral
argument on the petition, and on January 5, 2018, the judge placed his decision
on the record.
The judge noted that defendant had raised several claims of ineffective
assistance of counsel. He alleged he was unfairly prejudiced by the introduction
of evidence indicating he was a member of a gang. He claimed his counsel
should have sought severance of the charges related to the murder with the post-
homicide charges. He also claimed he was prejudiced because D.W., who was
one of the State's witnesses, had testified in prison garb.
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Defendant further alleged his counsel did not adequately present a defense
against the State's evidence regarding the time frame in which he could have
committed the murder. Lastly, he claimed his attorney erred by failing to object
to the admission of a letter that he allegedly wrote to M.N. He claimed the State
failed to show a direct link between himself and the letter.
The PCR judge found that defendant had not shown that any actions of his
trial or appellate counsel were unreasonable. The judge noted that in defendant's
statement to the police, he had admitted he was a gang member, and several
witnesses testified at trial that he was a member of a gang. The State also
presented testimony from an expert explaining language used by gang members.
The PCR judge found that while trial counsel did not object to the
admission of the testimony regarding defendant's gang membership, it was
probably a strategic decision. The judge pointed out that trial counsel had
asserted that Lockhart had been a gang member, and he could have been killed
by another gang member.
The PCR judge also noted that the trial judge had denied defendant's
motion to sever the homicide-related counts with those charging post-homicide
offenses, which involved witness tampering. The trial judge had determined
that evidence related to the murder and the witness tampering were admissible
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in both trials, and there was no basis for severing the charges. The PCR judge
found defendant's trial counsel did not err by failing to re-file a motion for
severance of the charges.
In addition, the judge rejected defendant's claim that his attorney should
have objected to D.W. testifying in prison clothing. The judge noted that
defendant had argued he was prejudiced because of his association with D.W.
The judge found, however, that D.W.'s credibility would have been adversely
affected by his testifying in prison clothing, but this would have prejudiced the
State's case because D.W. was one of the State's witnesses.
The judge further found that there was no merit to defendant's claim that
his trial attorney erred by failing to object to the admission of a letter that
defendant allegedly had written to M.N. The judge noted that a witness had
been able to testify, based on his prior knowledge, that defendant had written
the letter.
The judge concluded that defendant failed to show he was prejudiced by
the alleged deficient performance by his attorney. The judge observed that the
State had presented substantial evidence placing defendant with the victim near
the time of the murder, as well as surveillance footage and cellphone data that
connected defendant to the victim. The judge found that defendant failed to
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demonstrate that exclusion of the gang-related testimony or the letter would
have resulted in a different outcome at trial.
The judge also noted that defendant had raised additional arguments in his
pro se brief, but these arguments had been previously raised and rejected on
direct appeal. The judge concluded that defendant was not entitled to an
evidentiary hearing on his petition and entered the January 5, 2018 order
denying PCR. This appeal followed.
V.
On appeal, defendant argues:
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY AFFIRMATIVELY
INTRODUCING IRRELEVANT AND PREJUDICIAL
GANG EVIDENCE INTO HIS TRIAL.
We have considered defendant's argument and conclude it lacks sufficient
merit to warrant extended comment. R. 2:11-3(e)(2). We affirm the order
denying PCR substantially for the reasons stated by the PCR judge in the
decision placed on the record. We add the following comments.
A defendant asserting a claim of ineffective assistance of counsel must
satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668,
687 (1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J.
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42, 58 (1987). Under that test, a defendant first "must show that counsel's
performance was deficient." Strickland, 466 U.S. at 687. The defendant must
establish that the attorney's performance "fell below an objective standard of
reasonableness" and that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at 687-88.
The defendant also must show "that the deficient performance prejudiced
the defense." Id. at 687. To establish prejudice, the defendant must show "there
is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
Furthermore, an evidentiary hearing on a PCR petition is required only
when the defendant presents a prima facie case for relief, the court determines
that there are issues of material fact that cannot be resolved by reference to the
existing record, and the court determines that an evidentiary hearing is required
to resolve the issues raised. State v. Porter, 216 N.J. 343, 354 (2013) (citing R.
3:22-10(b)). "A prima facie case is established when a defendant demonstrates
'a reasonable likelihood that his or her claim, viewing the facts alleged in the
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light most favorable to the defendant, will ultimately succeed on the merits. '"
Id. at 355 (quoting R. 3:22-10(b)).
On appeal, defendant claims his trial attorney was deficient in failing to
object to the State's admission of evidence regarding his gang membership and
the gang membership of certain witnesses. Defendant contends such evidence
was irrelevant and unduly prejudicial. He asserts the trial judge had expressed
concern about the admission of this evidence, but his attorney argued for its
admission so that he could show the jury that Lockhart had been concerned about
violence from a gang other than defendant's gang. Defendant contends any
reasonable attorney would have known this evidence was inadmissible hearsay,
and the PCR judge erred by finding counsel made a valid strategic decision in
failing to object to its admission.
We are convinced, however, that the record supports the PCR judge's
conclusion that defendant's trial counsel made a reasonable strategic decision to
allow the State to introduce evidence regarding defendant's gang membership
and the gang membership of other witnesses. As the judge recognized, defense
counsel wanted the jury to hear this evidence because it supported the claim that
someone other than defendant murdered Lockhart.
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The record shows that at trial, defense counsel elicited testimony from
M.N. that Lockhart was a member of Grape Street, which is part of the Crips
gang. M.N. testified that Lockhart had "snitched" on someone in the gang,
which usually means that the "snitch" can get "disciplined." He explained that
"disciplined . . . means they'll beat you halfway to death."
On redirect, M.N. testified that defendant was a member of Brim, which
is part of the Bloods gang, and that "Blue" was affiliated with G-Shine, which
is also a part of the Bloods gang. M.N. said he did not see any other Grape
Street Crips on the scene at the time of the shooting.
In addition, trial counsel elicited testimony from B.A. that he and
Lockhart were members of the Crips and defendant was a member of Brim. B.A.
further testified that the Bloods and the Crips did not get along, and that
Lockhart and defendant sold drugs in the area near Pittman Park. Moreover, the
DVD of defendant's recorded statement was played for the jury. As noted, in
his statement, defendant told the police that a member of the Crips gang had
killed Lockhart.
Thus, the evidence that Lockhart was a member of the Grape Street subset
of the Crips and that he had previously "snitched" on another member of the
Crips was a key element of the defense strategy. Counsel wanted to raise
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reasonable doubt as to defendant's guilt by asserting that Lockhart was killed by
someone other than defendant.
By not objecting to the evidence of gang affiliation, trial counsel was able
to assert that Lockhart was a drug-dealing member of the Crips, who was at risk
of being "disciplined" by other members of that gang. Moreover, defense
counsel could not reasonably object to the introduction of testimony about
defendant's gang membership. As noted, defendant admitted such membership
in the statement he provided to the police. We reject defendant's contention that
evidence regarding his gang membership was irrelevant.
Therefore, the record supports the PCR court's determination that
defendant failed to present a prima facie case for relief. Accordingly, the PCR
court correctly found that defendant was not entitled to an evidentiary hearing
on his petition.
Affirmed.
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