STATE OF NEW JERSEY VS. QUARWEE WALKER (09-03-0975, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4374-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUARWEE WALKER,
Defendant-Appellant.
Submitted October 11, 2017 – Decided November 3, 2017
Before Judges Carroll and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 09-03-0975.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Quarwee Walker appeals from a March 30, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. Following our review of the record and
applicable law, we affirm the denial of PCR but remand for
resentencing.
A grand jury indicted defendant, Bryan Witherspoon, Neil
Herbert, and others with a series of third-degree drug offenses
spanning various dates from December 10, 2008 to January 7, 2009.
Regarding December 10, 2008, defendant was charged with possession
of cocaine, N.J.S.A. 2C:35-10a(1), distribution of cocaine,
N.J.S.A. 2C:35-5a(1) and -5b(3), and distribution of cocaine
within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts one to
three). Regarding December 11, defendant and Witherspoon were
charged with the same three substantive offenses (counts five to
seven), and with conspiracy to possess cocaine with intent to
distribute, N.J.S.A. 2C:5-2 (count four). Regarding December 16,
defendant and Herbert were charged with the same three substantive
offenses (original counts nine to eleven), and with conspiracy
(original count eight). Regarding January 1, 2009, defendant was
charged with the same substantive offenses (original counts
fifteen to seventeen). With respect to January 7, 2009, defendant
was charged with possession of cocaine, possession of cocaine with
intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), and
distributing cocaine within 1,000 feet of a school (counts eighteen
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to twenty), and identical charges with respect to heroin (counts
twenty-one to twenty-three).
Defendant was tried twice. The jury in the first trial
acquitted him of counts eighteen to twenty-three relating to
January 7, 2009. The jury deadlocked on the remaining charges and
a mistrial was declared as to those counts.
Before the second trial, the judge dismissed the original
count eight conspiracy charge, expanded count four to charge
conspiracy from December 10 through January 1, and renumbered the
original counts nine to seventeen as counts eight through sixteen.
The jury thereafter convicted defendant of conspiring to
distribute cocaine from December 10 through January 1 (count four),
as well as all charged offenses relating to December 10 (counts
one to three), December 16 (renumbered counts eight to ten), and
January 1 (renumbered counts fourteen to sixteen). The jury
acquitted defendant of the substantive offenses regarding December
11 (counts five to seven).
The facts underlying the jury's verdict in the second trial
are set forth in our opinion in defendant's direct appeal. We
repeat them here to lend context to the issues defendant raises
in the present appeal:
The State's witnesses were East Orange
Detectives Lance Merrill, Rahsaan Johnson, and
Ramon Rodriguez. They presented evidence that
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[defendant] and Witherspoon conspired to and
did sell crack cocaine from December 10, 2008,
through January 1, 2009, including sales on
December 10, 11, 16, and 30, and on January
1. Each sale was made to Merrill, acting
undercover, with either Johnson or Rodriguez
observing from twenty-five to fifty feet away.
The sales occurred between 8:00 and 8:40 p.m.,
near or on the enclosed front porch of a house
in an area lit by a streetlamp and by the
lights of the adjacent high school football
field and parking lot. Both Johnson and
Rodriguez knew [defendant] and Witherspoon
prior to the events in question.
On December 10, Johnson observed [defendant]
drive up in a GMC Yukon registered to
[defendant]. [Defendant] and Witherspoon
greeted each other and walked toward the
house. Merrill approached [defendant] and
Witherspoon, asked for crack, and gave
[defendant] $50. [Defendant] went inside the
Yukon, emerged, and handed five bags of crack
to Merrill. [Defendant] and Witherspoon then
went into the house together. At trial,
Merrill and Johnson identified [defendant] as
the man who sold the crack.
On December 11, Rodriguez observed Merrill
approach [defendant] and ask for crack.
[Defendant] told Merrill to see "B" in the
house. Merrill entered the porch and met
Bryan Witherspoon. Merrill gave $50 to
Witherspoon in return for five bags of crack.
At trial, Merrill and Rodriguez identified
Witherspoon as the man who sold the crack, and
[defendant] as the man who directed Merrill
to the house.
On December 16, Rodriguez observed [defendant]
sitting in his Yukon. Merrill approached
[defendant] and asked for crack. [Defendant]
gestured towards the house and told Merrill
to see "Buzz" — co-defendant Neil Herbert, who
is Witherspoon's brother. Inside the porch,
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Merrill gave $100 to Herbert in exchange for
ten bags of crack. Merrill and Rodriguez
identified [defendant] at trial.
. . . .
On January 1, Johnson observed as Merrill went
to the house. [Defendant] pulled up in his
Yukon and got out. Merrill asked [defendant]
for crack. [Defendant] got something out of
his Yukon and motioned for Merrill to come
with him into the porch. There, [defendant]
gave Merrill five bags of crack for $50. At
trial, both Merrill and Johnson identified
[defendant]. [Defendant] was later arrested
with $1,110 in cash.
At trial, [defendant] called his sister
Hassana McPherson, his brother-in-law Marc
McPherson, and his fiancée Takiya Knowles, who
was also the mother of his five children. They
testified that he was at his son's birthday
party at or around the time of the December
11 drug sale. [Defendant] also called Calvin
Range and Josephine Witherspoon, residents of
the house, who testified that they were
friends with [defendant] and Witherspoon, that
[defendant] and Witherspoon came to play cards
at the house frequently, and that Range
frequently borrowed [defendant's] Yukon.
[State v. Walker, No. A-2528-11 (App. Div.
Dec. 11, 2013) (slip op. at 2-5), certif.
denied, 218 N.J. 275 (2014).]
In October 2011, defendant was sentenced to an aggregate ten-
year prison term with five years of parole ineligibility.
Appropriate fines and penalties were also imposed.
On direct appeal, defendant challenged his convictions on the
basis that the trial court's jury instructions on identification,
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alibi, and how to consider multiple charges, were erroneous. Id.
(slip op. at 7-18). In rejecting defendant's claims of plain
error,1 we stated:
The State presented a strong case to support
[defendant's] convictions. Even if Rodriguez
and Merrill were mistaken in their
identifications of [defendant] on December 11,
that does not necessarily mean they were
mistaken on other days. Such an error gives
no reason to doubt Johnson's identifications
of [defendant] on December 10 and January 1,
or to ignore the corroboration provided by
[defendant's] use of his Yukon on December 16
and January 1.
[Id. (slip op. at 17-18).]
Defendant also challenged his sentence because of the
confusion that was caused when the original count eight was
dismissed, and the original counts nine through seventeen were
renumbered counts eight through sixteen for purposes of the second
trial. Id. (slip op. 23-24). We agreed that this confusion
resulted in the court's failure to impose a sentence on the
original count seventeen. Id. (slip op. at 24). Accordingly, we
vacated the sentences imposed on the original counts nine through
seventeen and remanded for resentencing on those counts. Ibid.
1
Under the plain error standard, we disregard any error or
omission by the trial court "unless it is of such a nature as to
have been clearly capable of producing an unjust result." R.
2:10-2.
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As noted, the Supreme Court thereafter denied certification. State
v. Walker, 218 N.J. 275 (2014).
Defendant filed a timely PCR petition, supported by a
supplemental certification claiming ineffective assistance of
trial counsel. Among other things, defendant contended trial
counsel was ineffective in failing to challenge the surveillance
location of the back-up police officers and request their location
be revealed because they "may have been too far away to accurately
identify the drug seller." Defendant also alleged that trial
counsel "led [him] to believe" the testimony of the alibi witnesses
regarding the December 11, 2008 charges would lead to his acquittal
on the remaining charges.
Judge Peter V. Ryan, who had also presided over the second
trial, issued a sixteen-page written opinion denying defendant's
petition without an evidentiary hearing. With respect to the
officers' surveillance locations, the judge noted "there were
countless questions and thorough examinations by trial counsel on
this issue" and "the locations were mentioned in detail[.]" The
judge also found "the trial strategy used by defense counsel was
misidentification[,]" and trial counsel called the "alibi
witnesses to testify that [d]efendant was not involved in the
alleged narcotics distribution on December 11, 2008," as a means
of attacking the police officers' credibility and identifications
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regarding the remaining dates. Citing State v. Bey, 161 N.J. 233,
251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L.
Ed. 2d 964 (2000), the judge concluded "[t]he simple fact that a
trial strategy fails does not necessarily mean that counsel was
ineffective."
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS.
A. TRIAL COUNSEL FAILED TO CHALLENGE
THE SURVEILLANCE LOCATIONS OF THE
BACK-UP POLICE OFFICERS AND FAILED
TO REQUEST THAT THEIR LOCATIONS BE
REVEALED.
B. TRIAL COUNSEL FAILED TO
ADEQUATELY ADVISE DEFENDANT
REGARDING ADDITIONAL ALIBI
WITNESSES AND/OR FAILED TO PURSUE
THEM.
Having considered defendant's arguments in light of the
record and applicable legal standards, we conclude they lack
sufficient merit to warrant extensive discussion. R. 2:11-
3(e)(2). We affirm substantially for the reasons expressed in
Judge Ryan's March 30, 2016 written opinion, to which we add the
following comments.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
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in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of
ineffective assistance of counsel, defendant must meet the
following two-prong test: (l) counsel's performance was deficient
and he or she made errors so egregious counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,
80 L. Ed. 2d at 693, 698.
Defendant renews his claim that trial counsel should have
requested the surveilling detectives' locations be revealed so as
to challenge their observations. However, Merrill directly
engaged in the undercover drug purchases and he was able to
identify defendant from those transactions. The two surveilling
officers also knew defendant, and there was extensive questioning
about their locations, one of which was openly discussed. Thus,
even if we were to somehow conclude that trial counsel's
performance was deficient, there is no reasonable probability that
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the result would have been different had the backup officers'
exact surveillance locations been disclosed.
Defendant is also unable to satisfy Strickland's second,
prejudice prong with respect to his claim that counsel was
ineffective for leading him to believe the testimony of his alibi
witnesses would lead to his acquittal on all charges. In his
certification, plaintiff asserts that, if properly advised, he
would have pled guilty to ease the financial strain on his family.
However, he further avers he would have "pled guilty even though
I did not commit these crimes." Given this sworn proclamation of
innocence, there is nothing in the record that leads us to conclude
defendant could provide the requisite factual basis for a guilty
plea.2 Consequently, a trial would have been necessary in any
event. We also note, as we did on defendant's direct appeal, that
the State presented a strong case to support defendant's
convictions, and even if Rodriguez and Merrill were mistaken in
2
Trial courts may not accept a guilty plea unless there is a
factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential
to elicit from the defendant a comprehensive factual basis,
addressing each element of a given offense in substantial detail.'"
State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v.
Campfield, 213 N.J. 218, 236 (2013)). Trial courts "must be
'satisfied from the lips of the defendant' . . . that he committed
every element of the crime charged[.]" Id. at 432-33 (citations
omitted).
10 A-4374-15T1
their identifications of defendant on December 11, that does not
necessarily mean they were mistaken on other days.
To the extent defendant now argues on appeal that trial
counsel should have pursued additional alibi witnesses, he does
not identify them or submit any affidavits or certifications from
any witness attesting to the alibi. Defendant's bald assertions
are insufficient to support this claim. See State v. Cummings,
321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199
(1999).
We are satisfied from our review of the record defendant
failed to make a prima facie showing of ineffectiveness of trial
counsel under the Strickland-Fritz test. The PCR court correctly
concluded an evidentiary hearing was not warranted. See State v.
Preciose, 129 N.J. 452, 462-63 (1992). Accordingly, we affirm the
denial of defendant's PCR petition.
As a final matter, as previously noted, on defendant's direct
appeal we vacated the sentences imposed on the original counts
nine through seventeen and remanded for resentencing on those
counts. Although the parties have not raised the issue, we are
advised there is no record that defendant was ever resentenced.
We therefore remand for resentencing in accordance with our prior
opinion in No. A-2528-11, and direct the resentencing be completed
within sixty days.
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Affirmed, and remanded for resentencing. We do not retain
jurisdiction.
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