State of New Jersey v. Donald Easterling ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2383-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD EASTERLING,
Defendant-Appellant.
_________________________
Argued September 11, 2024 – Decided September 19, 2024
Before Judges Mayer and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 15-04-0865
and 15-04-0866.
Michael Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael
Confusione, of counsel and on the brief).
Hannah Kurt, Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens, II, Essex
County Prosecutor, attorney; Braden Couch, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Donald Easterling appeals from the March 1, 2023 order of the
Law Division denying his petition for post-conviction relief (PCR) after an
evidentiary hearing. We affirm.
I.
In 2015, a grand jury indicted defendant, charging him with eleven counts
arising from an armed robbery of a 99-cent store in Newark. During the robbery,
a detective responding to the scene was shot in the knee.
The State alleged that defendant brought a Glock handgun into the store
to commit the robbery, but his plans were foiled by the store owner and several
others who trapped him in the store prior to the arrival of police. According to
the State, the first officer on scene observed through the plexiglass front door
that defendant was armed. He fired twice, injuring defendant. Seeing defendant
was wounded, the store owner and others overpowered him and forced him to
the floor.
The detective arrived at about that time and saw defendant struggling with
three people. Although he originally thought defendant was being robbed, once
the detective made eye contact with defendant, he heard a bang, saw muzzle fire,
and realized defendant had shot him through the front door. Other officers soon
arrived, arrested defendant, and removed him from the floor, where they found
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a Glock handgun. The three other firearms recovered from the scene were the
police officers' service weapons, none of which were Glocks. A bullet was
recovered from the detective's knee.
At trial, defendant took the position that he was an unarmed bystander and
was attacked by the storeowner and his associates because they were selling
marijuana from the store. He testified that he struggled to get away from them
when he was shot and the Glock belonged to the store owner, who presumably
used the weapon to protect his drug sales operation.
The State's ballistics expert testified that a bullet casing recovered from
the store was fired from the Glock. In addition, he testified that the bullet
recovered from the detective's knee was discharged from the Glock.
After the jury was selected, the State added a name to the list of potential
witnesses shown during jury selection. Juror No. 14 saw the amended list and
recognized the added name as a man with whom she was familiar. She told other
jurors that she needed to inform the court that she knew the potential witness.
In front of other jurors, she told a sheriff's officer that she knew the witness.
When questioned by the court outside the presence of the other jurors,
Juror No. 14 explained that she knew the witness years earlier when he was in a
relationship with her daughter's grandmother. The court excused the juror. In
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response to a question by the court, both defendant's counsel and the State
agreed that there was no need to question the other jurors about the incident
because the excused juror stated that she had not conveyed any information
about the witness to the remaining jurors. Defense counsel expressed concern
that further questioning would highlight the witness unnecessarily .
The jury convicted defendant of six counts, including first-degree robbery,
N.J.S.A. 2C:15-2, and three weapons offenses. He was acquitted on three counts
and the court dismissed one count. The court sentenced defendant to an
aggregate extended term of forty-five years of imprisonment, subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2.1
On direct appeal, defendant argued, among other things, that the trial court
should have individually voir dired the remaining jurors after excusing Juror No.
14. We rejected that argument. State v. Easterling, No. A-4211-16 (App. Div.
Aug. 16, 2019). We vacated defendant's conviction on one count on other
grounds, affirmed his remaining convictions, and remanded for merger of two
1
Defendant subsequently entered a guilty plea to a separate indictment with a
single count of second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b), arising from the robbery. His guilty plea was contingent on his
convictions of the charges in the robbery indictment being upheld on appeal.
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counts and resentencing. Ibid. The Supreme Court denied defendant's petition
for certification. State v. Easterling, 240 N.J. 401 (2020).
In May 2022, defendant filed a petition for PCR alleging his trial counsel
was ineffective because she: (1) did not retain a ballistics expert to evaluate the
evidence or cross-examine the State's ballistics expert; and (2) failed to request
the trial court voir dire the remaining jurors. The PCR judge, who also presided
at defendant's trial, held a two-day evidentiary hearing at which defendant, his
trial counsel, and Carl Leisinger, a ballistics expert, testified.
Defendant testified that before trial, he requested his trial counsel obtain
an expert. He could not, however, identify the type of expert he requested.
Defendant's trial counsel testified that defendant's position at trial was that he
was not in possession of a gun and could not, therefore, have committed armed
robbery or shot the detective. She testified that she did not consult a ballistics
expert or cross-examine the State's ballistics expert because eliciting evidence
with respect to which weapon discharged the bullet that struck the detective
would not have advanced defendant's theory of defense.
Leisinger testified that he was retained by defendant's PCR counsel to
review the findings of the State's expert. The Glock recovered from the scene
was available for his inspection. Leisinger discharged two bullets from the
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Glock under controlled conditions. He testified that he compared the shells from
the bullets he discharged with the discharged shell recovered at the scene and
found that they matched. He knew, therefore, that the Glock had been
discharged at the scene. However, when he examined the bullets that he
discharged from the Glock, he noticed that they had limited markings of the type
used for expert comparisons. Thus, Leisinger testified, it would have been
difficult, but not impossible, to match a bullet from the Glock to the bullet
removed from the detective. He testified that the State's expert should have been
cross-examined on this point. He also testified that the bullet removed from the
detective was not available to him because it had not been retained as evidence
and that the same was true for the officers' guns, fragments of the front door,
and the clothing defendant wore that day.
On March 1, 2023, the PCR court issued a twenty-one-page written
decision denying defendant's petition. The PCR court found defendant's trial
counsel and Leisinger were credible witnesses. However, the court found
defendant to not be "fully credible," because his testimony was inconsistent and
he "appear[ed] to have a strong motive to deceive the court."
The court found that trial counsel's decisions not to consult a ballistics
expert or cross-examine the State's ballistics expert were trial strategies
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consistent with the defense presented at trial. Thus, the court concluded,
defendant failed to establish ineffective assistance of counsel on this point.
The PCR court also found that trial counsel's decision not to request voir
dire of the remaining jurors to avoid highlighting the importance of a State's
witness in the minds of the jurors was appropriate trial strategy. In addition, the
court noted that on defendant's direct appeal, we held that the trial court acted
within its discretion in declining to voir dire the remaining jurors. Thus, the
PCR court concluded, defendant did not establish that his trial counsel provided
ineffective assistance on this point. A March 1, 2023 order memorialized the
trial court's decision.
This appeal followed. Defendant raises the following arguments.
POINT I
THE TRIAL COURT ERRED IN RULING THAT
DEFENDANT'S TRIAL COUNSEL PROVIDED
CONSTITUTIONALLY EFFECTIVE ASSISTANCE
WITH REGARD TO COUNTERING AT TRIAL THE
STATE'S BALLISTICS EXPERT.
POINT II
THE TRIAL COURT ERRED IN RULING THAT
DEFENDANT'S TRIAL COUNSEL PROVIDED
CONSTITUTIONALLY EFFECTIVE ASSISTANCE
WITH REGARD TO VOIR DIRE OF THE JURY
PANEL FOLLOWING THE REVELATION ABOUT
JUROR NO. 14.
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II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-
2(a), a defendant is entitled to post-conviction relief if there was a "'substantial
denial in the conviction proceedings' of a defendant's state or federal
constitutional rights . . . ." Ibid. "A petitioner must establish the right to such
relief by a preponderance of the credible evidence." Ibid. (citing State v.
Mitchell, 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts" that
"provide the court with an adequate basis on which to rest its decision" must be
articulated. Mitchell, 126 N.J. at 579.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
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guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant then must show that counsel's "deficient performance
prejudiced the defense[,]" id. at 687, because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceed ing would
have been different . . . ." Id. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A] court
need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed."
Strickland, 466 U.S. at 697.
"We defer to [a] trial court's factual findings made after an evidentiary
hearing on a petition for PCR." State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). "However, we do not defer to legal conclusions, which we review
de novo." State v. Holland, 449 N.J. Super. 427, 434 (App. Div. 2017).
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Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the March 1, 2023 order for the
reasons stated by Judge Siobhan A. Teare in her thorough and well-reasoned
written opinion. Her conclusions regarding the strategic decisions made by
defendant's trial counsel, and defendant's resulting failure to establish
ineffective assistance of counsel, are well supported by the record.
Affirmed.
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