STATE OF NEW JERSEY VS. ROBBY R. WILLIS STATE OF NEW JERSEY VS. MARCUS S. WHITE (10-08-0841, BURLINGTON COUNTY AND STATEWIDE) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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-4040-18
A-4456-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBBY R. WILLIS, a/k/a
ROBERT WILLIS, RANDY
WILLIS, ROBBY WILLIS,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS S. WHITE, a/k/a
MARCUS WHITE, MARCUS
ST. CLAIR WHITE, DOT
MARCUS ST.CLAIR,
MARCUS ROBERTS,
Defendant-Appellant.
_________________________
Submitted October 19, 2020 – Decided March 31, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment Nos. 10-08-
0841.
Joseph E. Krakora, Public Defender, attorney for
appellant Robby R. Willis (Louis H. Miron, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Marcus White (Andrew R. Burroughs,
Designated Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent State of New Jersey (Alexis R.
Agre, Assistant Prosecutor, of counsel and on the
briefs).
PER CURIAM
We consolidate these PCR appeals for disposition in a single opinion. For
the reasons set forth below, we affirm.
I.
We incorporate the procedural and factual history from our opinion on
both direct appeals in State v. White, Nos. A-5598-12, A-5611-12 (App. Div.
July 26, 2017) (slip op. at 1-2).
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Following a joint trial, the jury found defendant Robby Willis guilty of
first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree robbery, N.J.S.A.
2C:15-1(a)(1); first-degree carjacking, N.J.S.A. 2C:15-2(a)(4); three counts of
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree
terroristic threats, N.J.S.A. 2C:12-3(a). The jury found co-defendant Marcus St.
Claire White guilty of robbery, carjacking, two counts of felony murder, and
unlawful possession of a handgun, but acquitted him of the other counts in the
indictment.
After appropriate mergers, the judge sentenced Willis to: life
imprisonment, with an eighty-five percent period of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the felony murder
conviction; a consecutive thirty-year term of imprisonment, with a NERA parole
ineligibility period on the kidnapping conviction; a consecutive ten-year term of
imprisonment, with a five-year period of parole ineligibility pursuant to the
Graves Act, N.J.S.A. 2C:43-6(c), on the weapon possession conviction; and a
concurrent twenty-year term of imprisonment, with a NERA period of parole
ineligibility on the robbery conviction.
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As to White, after appropriate mergers, the judge imposed a life sentence
with a NERA period of ineligibility on the felony murder conviction; a
concurrent twenty-year term of imprisonment with a NERA period of parole
ineligibility on the robbery conviction; and a consecutive ten-year term of
imprisonment, with a five-year parole ineligibility period under the Graves Act
for the weapon possession conviction.
II.
On September 2, 2009, police discovered the lifeless body of Lyudmilla
Bershteyn in a field in Mansfield Township, a short distance from the New
Jersey Turnpike. A witness who was jogging nearby told police he saw the
woman staggering in the field before she collapsed; another witness described
an SUV entering the road from a nearby wooded area at a high rate of speed.
The victim operated a property management company and was last seen earlier
in the morning of September 2 after inspecting an apartment in Philadelphia. At
the time, she was sitting in her silver 2009 Murano SUV. An autopsy revealed
she died from a single contact gunshot wound below her ear.
In the morning of September 3, at approximately 1:30 a.m., Officer
Charles Coleman of the Summerton Police Department in South Carolina,
stopped a speeding silver Murano with Pennsylvania license plates driven by
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Lenroy Laurance. Five other people were inside, including both defendants;
Willis's cousin, seventeen-year-old Kareem Harrison; White's girlfriend,
eighteen-year-old Shaniqua Williams; and Williams's half-sister, sixteen-year-
old Bacquea Thomas. Laurance could not produce a driver's license and, upon
producing Bershteyn's registration, he told the officer the SUV belonged to his
girlfriend's mother. The officer saw the occupants passing around a bag of
snacks, grew suspicious and ordered everyone out of the car. A subsequent
search of the Murano revealed three handguns, including one hidden inside the
snack bag, the victim's debit card and other personal items, a portable navigation
unit, an EZ-Pass transponder and a New Jersey Turnpike toll ticket. All six
individuals were taken into custody and South Carolina authorities confirmed
with Philadelphia police that the owner of the car had been reported missing.
Local police and members of the Burlington County Prosecutor's Office who
arrived in South Carolina questioned the occupants. Both defendants provided
statements that were introduced to the jury in redacted form. Police pieced
together events of the days leading up to, and following, the September 2
carjacking of Bershteyn.
Williams, Thomas, and Harrison testified as State's witnesses at trial.
Harrison's testimony was critical to the State's case. He provided eyewitness
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testimony of Bershteyn's abduction by himself, Laurance and Willis, and her
shooting death at Laurance's hand. From the EZ-Pass transponder and
navigational device, the State introduced details of the SUV's location at various
points and times, which corroborated much of this testimony and placed the car
near the murder site at the time of the shooting.
In his statement, White claimed he was not involved in the abduction o f
the victim but joined the others thereafter and knew she was in the car. He
remained in the SUV as Laurance dragged the victim into the field and shot her
with Harrison's gun.
Willis denied any involvement at all and said he checked into an
employment and training agency the morning of September 2, but claimed he
was sent home without any work. He remained home all day until late in the
afternoon, when he and the others left for South Carolina. The State called a
witness from the employment and training agency who testified the program was
closed on September 2. The State introduced a letter, written by Willis to
Harrison while both were in jail, in which Willis expressed anger at Harrison's
"snitching," and told him to blame everything on Laurance.
Defendants neither testified nor produced any witnesses at trial.
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III.
The PCR appeals were heard by Judge Gerard H. Breland, who addressed
the defendants' claims in separate opinions. We recount Judge Breland's
treatment of these claims separately.
A.
Willis alleged that his trial counsel was ineffective for five reasons: failing
to investigate alternative alibi theories; declining the court's offer of a curative
instruction on gang affiliation testimony; failing to object to the state's
comments in summation; failing to object to the state's comments in its opening
statement; and failing to object to the comments of the State and the victim's
family at sentencing. Willis also alleged his appellate counsel was ineffective
for failing to raise the issue of territorial jurisdiction on appeal.
Willis first argued his trial counsel was ineffective for failing to
investigate an alibi he belatedly raised. Willis's alleged he was picked up by the
co-defendants at an Applebee's restaurant, and defense counsel should have
investigated to find corroborating video evidence. The trial judge found Willis
had given a video-recorded statement to police providing a different alibi; he
said in the statement he had been picked up at his house, not Applebee's. The
two teenage sisters in the car that day, Williams and Thomas, testified that Willis
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was already in the car when they got in at Applebee's. The PCR judge concluded
that it was reasonable for trial counsel to not investigate Willis's Applebee's
claim, given his failure to provide that alibi to the police, the overwhelming
evidence at trial disproving the claim, and his failure to raise this defense at trial.
The judge found trial counsel's election not to investigate was not ineffective
assistance of counsel.
Willis next argued trial counsel was ineffective for refusing the judge's
offer of a curative instruction after testimony alluding to the gang affiliation of
a co-defendant, Laurence. The PCR judge, after reviewing the trial record,
concluded that Willis' trial counsel promptly objected to the testimony and
moved for a mistrial. The mistrial motion was denied, and the judge proposed
a curative instruction to the jury, which trial counsel refused. The trial judge
gave the curative instruction to the jury anyway. The PCR judge expressly
found trial counsel's refusal of a curative instruction was consistent with his
mistrial motion strategy. The judge concluded that the trial counsel's act of
refusing the curative instruction was not ineffective assistance of counsel and
"was well within [a] wide range of reasonable professional assistance."
Third, Willis argued his trial counsel was ineffective for failing to object
to various comments by the state during both openings and summations. Willis
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argued his trial counsel should have objected during openings when the
prosecutor described the victim as a hardworking immigrant, and during
summation when the State offered several opinions about defense counsel's
theory of the case and trial tactics, including: arguing defense counsel attempted
to convince the jury to "misapply the law"; told the jury, "you've been
consistently urged by the defense to consider issues that are legally totally,
totally irrelevant and have no bearing under the law", stated that defense counsel
was making "inaccurate representations"; stated the defense was trying to "sell"
something to the jury that was "just not the truth"; and finally, argued to the jury
that, "this is like a big jigsaw puzzle. [Defense counsel wants] to start pulling
pieces of the puzzle to the point that you can't see the picture."
The PCR judge found that all the statements were direct responses to
arguments raised by Willis' trial counsel. The judge found mentioning that the
victim was a hardworking immigrant was not egregious and did not deprive
defendant of a fair trial; and there was little likelihood that the state's comments
in its closing would have yielded sustainable objections. The PCR judge also
found the State's presentation of a video of Willis' accomplices sitting in a police
car during its opening was not egregious and did not deprive defendant of a fair
trial when there was subsequent trial testimony that he and his accomplices were
A-4040-18
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in police cars on August 30, 2009, and on September 3, 2009. The judge
concluded that it was a reasonable tactic for defense counsel not to object to the
statements, and there was no ineffective assistance of counsel based on these
arguments.
Willis' PCR counsel raised an ineffectiveness of trial counsel claim based
on the failure to object to certain arguments made by the State and certain
statements made by the victim's family at sentencing. The PCR judge dismissed
these claims because they were resolved during the direct appeal. We affirmed
the sentence on appeal,1 and the PCR judge concluded that Willis made no
showing that the appropriate sentence was affected in any way by these remarks.
Willis also raised a PCR claim alleging appellate counsel should have appealed
the trial judge's dismissal of defendant's territorial jurisdiction defense. The
PCR judge quickly and properly dismissed this claim as "meritless," finding
that, in fact, Willis did not raise a territorial jurisdiction claim below, but rather
a personal jurisdiction defense.
After dismissing Willis' pro se allegations of ineffective assistance of
counsel as "bald assertions," the PCR judge concluded that Willis' had not made
a prima facie claim in support of post-conviction relief, State v. Preciose, 129
1
White, slip op. at 29.
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N.J. 451, 462 (1992). He found Willis did not make a case for an evidentiary
hearing and denied post-conviction relief.
B.
Given the joint trial, there was predictable overlap between White's PCR
arguments and those made by Willis. The PCR judge addressed White's claims
in a separate and thorough opinion. We will be brief where the arguments on
appeal and the findings before the PCR court are identical to Willis'.
White argued ineffective assistance of his trial counsel for failing to object
to the State's comments about the victim's background and its use of video
showing White sitting in a police car during openings. White also argued in a
pro se brief that defense counsel should have objected to the trial judge's curative
instruction on the gang affiliation reference during testimony before the jury. In
both instances, the PCR judge rejected the claims, finding no ineffective
assistance of counsel for the same reasons he expressed in the Willis PCR
decision.
White next argued that trial counsel was ineffective because he did not
seek an accomplice liability charge. The PCR judge rejected this claim, finding
that White had been charged only as a principal in the felony-murder. Further,
the PCR judge found that White himself asserted that he was "not involved in
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the crime at all." The State's theory of the case and White's defense of actual
innocence left White's case in a posture where the trial judge was not required
to provide an accomplice liability charge.
White then argued that trial counsel was ineffective for failing to object
to a read-back of witness testimony that included street gang references. He
also argued that appellate counsel was ineffective for failing to appeal the denial
of trial counsel's mistrial motion. We resolved this issue on direct appeal,
concluding there was no prejudice at trial to Willis or White resulting from the
gang affiliation testimony, and that the trial judge gave proper curative
instructions. 2 Consequently, the PCR judge found that there was no prejudice
to White from the failure to object to the read back or to appeal the denial of the
mistrial motion.
As with Willis, the PCR judge concluded White failed to make a prima
facie ineffective assistance of counsel case warranting an evidentiary hearing.
The judge denied both applications.
Willis makes the following arguments on appeal:
I. Defendant Was Deprived of His Constitutional Right
to the Effective Assistance of Trial Counsel and
Appellate Counsel Under the United States
Constitution and the New Jersey Constitution.
2
White, slip op. at 12.
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A. Trial Counsel Deprived Defendant of a
Fair Trial by Failing to Conduct a Full Pre-
Trial Investigation and Rendered the Jury's
Verdict as Fundamentally Unreliable.
B. Trial Counsel Failed to Represent
Defendant Effectively During the Course
of the Trial Insofar as Counsel Failed to
Accept the Trial Court's Proposal to
Provide the Jury with a Curative Charge
Concerning the Highly Prejudicial
Reference to Gangs During the Testimony
of the State's Witness.
C. Trial Counsel Failed to Represent
Defendant Effectively During Sentencing
Insofar as Counsel Failed to Zealously
Advocate for Defendant and Challenge the
State's Highly Inflammatory Presentation
of Witnesses and Facts.
II. Defendant Was Deprived of His Constitutional Right
to the Effective Assistance of Appellate Counsel
Because Counsel Failed to Argue the Territorial
Jurisdiction Issue Accurately.
III. The PCR Court Abused its Discretion in Not
Conducting an Evidentiary Hearing to Address
Defendant's Claim.
In his brief, White makes the following arguments on appeal:
I. As Mr. White Has Established, He Was Denied
Ineffective Assistance of Trial and Appellate Counsel,
the PCR Court Erred When It Denied His Petition for
Post-Conviction Relief Without Holding an
Evidentiary Hearing.
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(1) Trial counsel's failure to make a timely
objection to the State's opening remarks
was prejudicial to his client's interest to
receive a fair and reliable trial.
(2) Trial counsel's failure to object to the
State playing a video showing Mr. White
detained in a police vehicle was
prejudicial.
(3) Trial counsel was ineffective for not
seeking an accomplice liability charge.
II. Appellate Counsel Was Ineffective for Failing to
Raise Certain Cognizable Claims on Direct Appeal.
(1) Appellate counsel failed to argue that
the trial court erred by not sua sponte
instructing the jury on accomplice liability.
(2) Appellate counsel was ineffective for
not appealing the denial of a mistrial and
the read-back of testimony concerning
gang affiliation.
III. As There Were Genuine Issues of Material Facts in
Dispute, an Evidentiary Hearing Was Required.
IV.
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
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by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 (1984).
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 unprofessional errors, the result of the proceeding would have been
different.'" Id. at 463-64 (quoting Strickland, 466 U.S. at 694).
To obtain a new trial based on ineffective assistance of appellate counsel,
a defendant must establish that appellate counsel failed to raise an issue that
would have constituted reversible error on direct appeal. State v. Echols, 199
N.J. 344, 361 (2009). Appellate counsel will not be found ineffective if
counsel's failure to appeal the issue could not have prejudiced the defendant
because the appellate court would have found either, that no error had occurred
or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State
v. Harris, 181 N.J. 391, 499 (2004). Consequently, appellate counsel is not
required to raise every possible issue and need only raise issues that have a
reasonable possibility of success. State v. Gaither, 396 N.J. Super. 508, 515-16
(App. Div. 2007); see also State v. Morrison, 215 N.J. Super. 540, 549 (App.
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Div. 1987) (noting "appellate counsel does not have a constitutional duty to raise
every nonfrivolous issue requested by the defendant").
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, 290 (App. Div. 2002) (citing U.S. v. Cronic, 466 U.S. 648, 659 (1984)).
V.
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
Harris, 181 N.J. at 421). We find that neither Willis nor White have overcome
the "strong presumption that [trial] counsel rendered adequate assistance," and
that their respective counsel "exercise[d] reasonable professional judgment."
Strickland, 466 U.S. at 689. After reviewing the extensive record and for the
reasons stated in Judge Breland's cogent written opinions, we are satisfied the
defendants failed to prove ineffective assistance of counsel, trial or appellate.
Preciose, 129 N.J. at 463. For completeness' sake, we note that Willis and
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White also failed to satisfy the second prong of Strickland. Neither defendant
showed their proceedings would have been different but for the errors they
alleged. Id. at 463-64. Prejudice cannot be presumed. Defendants failed to
draw the required nexus between "specific errors of counsel" and any harm to
the reliability of their trial. Drisco, 355 N.J. Super at 290 (citing Cronic, 466
U.S. at 659). No evidentiary hearing is merited.
Affirmed.
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