STATE OF NEW JERSEY VS. MARCEL A. SAMERO (09-02-0094, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-5305-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCEL A. SAMERO,
a/k/a MANUEL A. MONQUE,
Defendant-Appellant.
__________________________
Submitted February 3, 2021 – Decided March 17, 2021
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 09-02-
0094.
Joseph E. Krakora, Public Defender, attorney for
appellant (Justin T. Loughry, Designated Counsel, on
the briefs).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Marcel A. Samero appeals from a March 27, 2019 order entered
by the Law Division denying his petition for post-conviction relief (PCR)
following an evidentiary hearing. Defendant argues that his trial and appellate
counsel were ineffective. We disagree and affirm substantially for the reasons
expressed by Judge Christopher J. Garrenger in his comprehensive written
decision that accompanied the order under review.
I.
The underlying facts supporting defendant's convictions are outlined in
our opinion on his direct appeal, which affirmed his conviction and sentence,
and need not be repeated here. 1 A subsequent petition for certification to our
Supreme Court was also denied. 2 However, we highlight the relevant procedural
and factual history for the issues raised in this appeal.
In October 2008, defendant was one of four participants in a robbery at a
Walmart located in Burlington Township where his sister was previously
employed. The robbery scheme was devised in August 2008 when defendant
had the opportunity to discuss Walmart's closing procedures with his sister and
1
State v. Samero, No. A-1277-11 (App. Div. Aug. 5, 2015).
2
State v. Samero, 226 N.J. 211 (2016).
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learned about the "war wagon" used to deposit cash from the registers at the end
of the night. After a first attempt was aborted when defendant's car stalled in
the fire lane in front of the store, the robbery occurred the following evening at
11:00 p.m. The assailants ordered a man near the store's entrance to the ground
at gunpoint. Defendant retrieved $38,000 in cash from the war wagon while the
co-defendants served as lookouts. Two female employees who were wheeling
the war wagon fled; one was ordered to get down by an armed co-defendant, and
the other fled into the bathroom and called the police. Later, defendant grabbed
the gun from the co-defendant and brandished it, while removing money from
the war wagon. Defendant and his cohorts escaped from the store with the
proceeds and fled by car.
A grand jury indicted defendant for first-degree armed robbery, N.J.S.A.
2C:15-1(a)(1) (count one); second-degree conspiracy to commit unarmed
robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:15-1(a)(1) (count two); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4)
(count five); and second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b) (count six).
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The State dismissed counts two, four, and five prior to trial. The jury
found defendant guilty on count one of first-degree conspiracy to commit
robbery as a lesser-included offense of first-degree robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1(b), and not guilty on count three, possession of a weapon for
an unlawful purpose. Following a separate trial before the same jury, defendant
was convicted on count six of certain persons not to have weapons. Defendant
did not testify at either trial. He was sentenced to eight years' imprisonment
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and ordered to pay
restitution.
On August 11, 2016, defendant filed a pro se petition for PCR, claiming
his trial counsel was ineffective for not properly defending cellular phone call
detail records, failing to seek an adjournment on the eve of the trial to retain an
expert on cellular phone and geospatial analysis, and not calling certain
witnesses to testify at trial. Defendant also argued his appellate counsel was
ineffective. On December 16, 2016, the judge assigned PCR counsel to
represent defendant. 3
The judge conducted an evidentiary hearing on November 26, 2018, and
January 14, 2019. Defendant presented the testimony of his PCR counsel and
3
PCR counsel did not file an amended petition on behalf of defendant.
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also introduced into evidence Sprint and Verizon phone records, the appellate
brief filed on his behalf, and a copy of the motion in limine transcript on the
issue of the admissibility of the cellular phone records. The State presented the
testimony of defendant's trial and appellate counsel at the PCR hearing.
PCR counsel testified that the State subpoenaed records from Sprint and
Verizon for a phone number ostensibly belonging to defendant, for the period of
October 2 to October 3, 2008. The Sprint records were admitted into evidence
while the Verizon records were referred to during the trial but not admitte d into
evidence. After reviewing the trial transcripts, PCR counsel argued that trial
counsel filed an "omnibus" in limine motion on behalf of defendant prior to trial
but did not specifically address the admissibility of the cellular phone or cellular
phone tower location records. Further, PCR counsel testified she reviewed the
appellate brief filed on defendant's behalf and there was "[n]o mention at all"
relative to the admissibility of the cellular phone records.
Testifying on behalf of the State, defendant's trial counsel stated defendant
was an "active participant in his defense" and "insist[ed] on developing an alibi
defense and using his father, Robin Samero, to do that." Defendant wanted to
introduce a ticket stub from a Nerds concert that took place in Philadelphia on
the night of the robbery and testimony from a cousin, Roger Gilbert, to support
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his alibi defense that he was at the concert. Trial counsel thought defendant's
father would be a "weak witness" because he had a criminal history, which was
delved into on cross-examination. Despite discussing the "pitfalls" of calling
defendant's father as a witness, trial counsel testified that defendant insisted
upon it. Several other witnesses also testified that defendant was at the Nerds
concert on the night of the robbery, but the jury did not believe them. Trial
counsel presented evidence that when the police searched defendant, they found
a ticket stub for the night the robbery occurred.
Karen Jenkins, who was Robin Samero's fiancée, testified that on the
evening of October 2, 2008, she was at his home and saw concert tickets on the
table. Jenkins stated she saw defendant and Gilbert leave the home with the
concert tickets. Gilbert testified he went to the Nerds concert with defendant at
the Electric Factory in Philadelphia. Further, trial counsel testified he filed a
"written motion in limine" objecting to the admissibility of the cellular phone
records based on imbedded hearsay and confrontation clause theories, which
were rejected by the trial judge.
Trial counsel also conferred with a cellular tower expert about testifying
at trial. Following their conversation, trial counsel concluded the cellular tower
records "were damaging" and calling an expert to testify would only "highlight"
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the issue to the detriment of defendant. Trial counsel planned to call defendant's
"on and off again" girlfriend Heather Berkey, and mother of one of his children
to testify at trial, but ultimately, she refused to provide the anticipated favorabl e
testimony for defendant. And, defendant claimed his trial counsel should have
objected to the prosecutor's characterization of him as the second man waving a
firearm during the robbery.
Following argument on January 14, 2019, Judge Garrenger reserved
decision and thereafter issued his written decision and order denying PCR. The
judge found defense counsel testified "credibly, reasonably and without undue
hesitation or deliberation." Addressing the procedural aspects of the petition,
the judge correctly recognized defendant's "arguments arising from the second
phase of trial were adjudicated at the [a]ppellate level" and are procedurally
barred, citing State v. McQuaid, 147 N.J. 464, 484 (1997) (PCR claims that are
"identical or substantially equivalent" to those issues previously adjudicated on
its merits will be barred.).
Judge Garrenger also found, "[a]ny issue pertaining to any purported
inconsistent verdict was considered at the trial and appellate level[s]." The
judge concluded PCR counsel "adroitly" reiterated arguments that are
"substantially the same" and a "restatement" of arguments addressed on appeal,
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including claims pertaining to the jury charge. A memorializing order was
entered on March 27, 2019. This appeal ensued.
Defendant raises the following issues in appealing the PCR denial:
POINT I
THE STANDARD FOR DETERMINING
INEFFECTIVE ASSISTANCE OF COUNSEL IS MET
IN THIS CASE.
POINT II
TRIAL COUNSEL MISTAKENLY ABANDONED
HIS MERITORIOUS OBJECTION TO THE
ADMISSION OF THE CELL PHONE RECORDS
WITHOUT A COMPETENT WITNESS FROM THE
CARRIER TO LAY THE FOUNDATION FOR THE
APPLICATION OF THE BUSINESS RECORDS
EXCEPTION; AND COUNSEL FAILED TO
DEVELOP AND PRESENT EXPERT TESTIMONY
TO EXPOSE THE ABSENCE OF CRUCIAL DATA
IN THE RECORDS WITHOUT WHICH THE
RECORDS COULD NOT GIVE RISE TO ANY
VALID ANALYSIS OF CELL PHONE LOCATION.
THE MOTION JUDGE ERRED IN FINDING
COUNSEL'S PERFORMANCE NON-DEFICIENT
OR OBJECTIVELY REASONABLE.
POINT III
TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL IN FAILING TO
OBJECT TO IMPORTANT HEARSAY EVIDENCE
AND THEN FAILING TO IMPEACH THAT
HEARSAY WITH RELATED EXCULPATORY
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HEARSAY THAT HE HAD IN HIS FILE, UNDER
EVID[ENCE] RULE 806.
POINT IV
COUNSEL COMMITTED A SERIOUS ERROR BY
OPENING WITH WHAT AMOUNTED TO A
PROMISE THAT THE JURY WOULD HEAR FROM
HEATHER BERKEY.
POINT V
THE PCR CLAIM OF INEFFECTIVE ASSISTANCE
FOR TRIAL COUNSEL'S FAILURE TO OBJECT TO
[THE] PROSECUTOR'S ARGUMENT IN PHASE II
OF TRIAL WAS NOT IDENTICAL OR
SUBSTANTIALLY EQUIVALENT TO ANY
ARGUMENT RAISED BY TRIAL COUNSEL OR
APPELLATE COUNSEL; IT IS AN ARGUMENT
AND ISSUE THAT COUNSEL MISSED, TO THE
PETITIONER'S DETRIMENT.
II.
Claims of ineffective assistance of counsel are governed by the standards
set forth in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Fritz,
105 N.J. 42, 58 (1987) (adopting the Strickland standard in New Jersey). For a
defendant to establish a prima facie case of ineffective assistance of counsel
under Strickland, the defendant must show that defense "counsel's performance
was deficient" and that "there exists 'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
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different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland,
466 U.S. at 694); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"The first prong of the [Strickland] test is satisfied by a showing that
counsel's acts or omissions fell outside the wide range of professionally
competent assistance considered in light of all the circumstances of the case."
Allegro, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).
To satisfy the second prong of Strickland, a defendant must prove "'that there is
a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.'" Id. at 367 (quoting State v.
Loftin, 191 N.J. 172, 198 (2007)). The second prong is "an exacting standard:
'[t]he error committed must be so serious as to undermine the court's confidence
in the jury's verdict or the result reached.'" Ibid. (alteration in original) (quoting
Castagna, 187 N.J. at 315).
Where there has been an evidentiary hearing, we review a PCR petition
with deference to the trial court's factual findings. State v. Nash, 212 N.J. 518,
540 (2013). To the extent defendant's arguments challenge the PCR court's legal
conclusion, our review is de novo. State v. Parker, 212 N.J. 269, 278 (2012).
Here, the testimony adduced at the evidentiary hearing belies defendant's
contention that trial counsel was ineffective in his handling of the cellular phone
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and tower records. The record clearly shows trial counsel argued for exclusion
of these records. Moreover, the Sprint subscriber information verified that the
phone number in question was actually registered to someone else. Defendant's
sister identified yet another number as defendant's number in her statement,
which was one digit different than the number given by Heather Berkey. At
trial, defendant's witnesses testified that the phone number listed in the police
report did not belong to defendant. Further, Judge Garrenger aptly determined
that defendant's trial counsel "reasonably employed" trial strategies, such as
declining to retain an expert witness. We see no reason to disturb the judge's
factual and credibility findings. State v. Robinson, 200 N.J. 1, 15 (2009).
We are also not persuaded by defendant's argument that his trial counsel
was ineffective for deciding not to call Heather Berkey to testify at trial. The
judge elaborated:
The court recognizes that the test under
Strickland is not one of hindsight, but of a totality of
circumstances at the time the alleged error occurred. At
the hearing, counsel for [p]etitioner elicited from [trial
counsel] that it was petitioner, engaging his right to
assist counsel, who had discussed utilizing Berkey as a
witness for the defense. Trial counsel further testified,
credibly, that petitioner had produced the letter
recanting Ms. Berkey's earlier statement and had
insisted that counsel use the statement. Trial counsel
conceded legitimate reservations regarding its use,
noting that Berkey was "on again, off again," but the
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decision ultimately relied on several assurances from
the petitioner. It was not until later that counsel was
informed by petitioner that Berkey refused . . . to testify
at trial. In consideration of the testimony of trial
counsel, the [c]ourt finds that counsel acted reasonably
based on the information available to him at the time of
trial. This court finds no error or deficiency in
representation by [trial counsel].
We note that "complaints merely of matters of trial strategy will not serve
to ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54(quoting State v. Williams, 39 N.J. 471, 489 (1963)). A legitimate, strategic
decision does not warrant reversal. "'[A]n otherwise valid conviction will not
be overturned merely because the defendant is dissatisfied with his or her
counsel's exercise of judgment during the trial.'" Allegro, 193 N.J. at 367(quoting Castagna, 187 N.J. at 314). The judge's conclusion that trial counsel
was not ineffective for refraining from calling Heather Berkey as a witness is
based upon substantial, credible evidence in the record.
Defendant's PCR petition also claimed that his appellate counsel should
have argued the cellular phone records issue and should have "engaged in more
diligent efforts" to obtain the in limine hearing transcript addressing the trial
court's decision to admit the records without the "requisite expert testimony."
However, "a defendant does not have a constitutional right to have appellate
counsel raise every non-frivolous issue that defendant requests on appeal." State
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v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007) (citing Jones v. Barnes,
463 U.S. 745, 753-54 (1983)). Indeed, "[a] brief that raises every colorable issue
runs the risk of burying good arguments . . . in a verbal mound made up of strong
and weak contentions." Jones, 463 U.S. at 753. "This process of 'winnowing
out weaker arguments on appeal and focusing on' those more likely to prevail,
far from being evidence of incompetence, is the hallmark of effective appellate
advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S.
at 751-52.) We reject this claim for the reasons set forth by the PCR judge,
"[t]he concerns and issues raised by appellate counsel are substantially similar
in nature to the issues raised by [p]etitioner in the instant petition."
Moreover, we cannot overlook the fact that trial counsel successfully
obtained an acquittal for defendant on the first-degree robbery charge and
possession of a firearm for an unlawful purpose. We have considered
defendant's arguments raised on this appeal in view of the record, the applicable
legal principles, and our deferential standards of review, and conclude
defendant's reprised contentions lack sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2). Having conducted a de novo
review of the PCR judge's legal conclusions, Nash, 212 N.J. at 540-41, we
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likewise find no reason to disturb Judge Garrenger's decision. We rely instead
on the judge's thorough and reasoned analyses of the issues raised.
Affirmed.
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