STATE OF NEW JERSEY VS. WAYNE PARKER(04-02-0178, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-3990-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE PARKER,
Defendant-Appellant.
_______________________________
Submitted May 25, 2017 - Decided July 6, 2017
Before Judges Lihotz and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 04-02-0178.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Wayne Parker appeals from a January 19, 2015 order
denying his application for post-conviction relief (PCR). For the
reasons stated below, we affirm.
These facts are taken from the record. On June 30, 2005,
defendant was convicted of two counts of first degree kidnapping
N.J.S.A. 2C:13-1(b)(1), two counts of third degree criminal
restraint N.J.S.A. 2C:13-2(a), one count of first degree robbery
and one count of second degree robbery N.J.S.A. 2C:15-1(a)(1), one
count of first degree conspiracy and one count of second degree
conspiracy N.J.S.A. 2C:5-2, one count of second degree burglary
N.J.S.A. 2C:18-2, two counts of second degree aggravated assault
N.J.S.A. 2C:12-1(b)(1), and one count of third degree aggravated
assault N.J.S.A. 2C:12-1(b)(7).
After sentencing, defendant appealed from his conviction,
which we affirmed. State v. Parker, No. A-1593-05 (App. Div. July
13, 2009). Defendant filed a petition for PCR on January 29,
2010, which was denied without prejudice. On October 18, 2010,
defendant re-filed his petition and it was denied following a non-
evidentiary hearing. In this appeal, defendant advances the
following arguments:
2 A-3990-14T2
POINT I
MR. PARKER IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THIS MATTER MUST BE REMANDED BECAUSE THE PCR
COURT DENIED RELIEF WITHOUT STATING FINDINGS
OF FACT OR CONCLUSIONS OF LAW (NOT RAISED
BELOW).
I.
The PCR process affords an adjudged criminal defendant a
"last chance to challenge the 'fairness and reliability of a
criminal verdict[.']" State v. Nash, 212 N.J. 518, 540 (2013);
see also Rule 3:22-1. As to our standard of review, "where the
[PCR] court does not hold an evidentiary hearing, we may exercise
de novo review over the factual inferences the trial court has
drawn from the documentary record." State v. O'Donnell, 435 N.J.
Super. 351, 373 (App. Div. 2014).
A petition for PCR may be granted upon the following grounds:
(a) Substantial denial in the conviction
proceedings of defendant's rights under the
Constitution of the United States or the
Constitution or laws of the State of New
Jersey;
(b) Lack of jurisdiction of the court to
impose the judgment rendered upon defendant's
conviction;
(c) Imposition of sentence in excess of or
otherwise not in accordance with the sentence
3 A-3990-14T2
authorized by law if raised together with
other grounds cognizable under paragraph (a),
(b), or (d) of this rule. Otherwise a claim
alleging the imposition of sentence in excess
of or otherwise not in accordance with the
sentence authorized by law shall be filed
pursuant to R. 3:21-10(b)(5).
(d) Any ground heretofore available as a
basis for collateral attack upon a conviction
by habeas corpus or any other common-law or
statutory remedy.
[R. 3:22-2.]
"Post-conviction relief is neither a substitute for direct appeal,
[Rule] 3:22-3, nor an opportunity to relitigate cases already
decided on the merits, [Rule] 3:22-5." State v. Preciose, 129
N.J. 451, 459 (1992).
Consequently, petitioners may be procedurally
barred from post-conviction relief under Rule
3:22-4 if they could have, but did not, raise
the claim in a prior proceeding, unless they
satisfy one of the following exceptions:
(a) that the ground for relief not
previously asserted could not
reasonably have been raised in any
prior proceeding; or (b) that
enforcement of the bar would result
in fundamental injustice; or (c)
that denial of relief would be
contrary to the Constitution of the
United States or the State of New
Jersey.
[Ibid.]
II.
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We first turn to defendant's argument he was entitled to an
evidentiary hearing to address his claim of ineffective assistance
of counsel. In order to establish ineffective assistance of
counsel, defendant must satisfy the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must
show: (1) "counsel's performance was deficient[,]" which requires
defendant to prove "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment" and (2) "the deficient performance prejudiced
the defendant" because "counsel's errors were so serious as to
deprive defendant of a fair trial[.]" Fritz, supra, 105 N.J. at
52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693).
As to prong one, the Strickland Court "endorsed extreme
deference in evaluating the performance of counsel, requiring 'a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. . . .'" Fritz, supra,
105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104
S. Ct. at 2065, 80 L. Ed. 2d at 694). As to prong two, defendant
must prove he was prejudiced, it is not presumed. Fritz, supra,
105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104
5 A-3990-14T2
S. Ct. at 2067, 80 L. Ed. 2d 696-97). Also, 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." Strickland,
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"To establish a prima facie claim of ineffective assistance of
counsel, a defendant must demonstrate the reasonable likelihood
of succeeding under the test set forth in [Strickland.]" Preciose,
supra, 129 N.J. at 463.
A.
Defendant asserts his attorney was ineffective "for failing
to challenge the evidence elicited about [the victim's] injuries,
failing to present [a] conflict of interest issue adequately,
[and] failing to file motions to suppress evidence seized because
the warrants lacked probable cause . . . ." He states he
demonstrated a prima facie showing of ineffective assistance of
counsel to the PCR court, and "his overall claim is dependent on
evidence outside of the record, namely, testimony from his trial
attorney." As a result, he argues he was entitled to an
evidentiary hearing on this issue and challenges the PCR court's
findings to the contrary.
6 A-3990-14T2
An evidentiary hearing should only be granted if a defendant
has presented a prima facie claim of ineffective assistance of
counsel. Id. at 462.
Thus, in determining the propriety of an
evidentiary hearing, the PCR court should
ascertain whether the defendant would be
entitled to post-conviction relief if the
facts were viewed "in the light most favorable
to defendant." If that inquiry is answered
affirmatively, then the defendant generally is
entitled to an evidentiary hearing in order
to prove the allegations. We observe,
however, that there is a pragmatic dimension
to the PCR court's determination. If the
court perceives that holding an evidentiary
hearing will not aid the court's analysis of
whether the defendant is entitled to post-
conviction relief, or that the defendant's
allegations are too vague, conclusory, or
speculative to warrant an evidentiary hearing,
then an evidentiary hearing need not be
granted.
[State v. Marshall, 148 N.J. 89, 158 (1997)
(citations omitted).]
At defendant's trial, a victim and two police officers
testified regarding the injuries the victim suffered leading to
defendant's conviction on aggravated assault. Defendant claims
his counsel "failed to obtain and review [the victim's] medical
records, interview her doctors, or consult with an independent
medical expert." As a result, he claims he was unable to exercise
his constitutional right to confront the victim and witnesses, as
to whether the victim's injuries were minor or serious. He states
7 A-3990-14T2
his medical expert reviewed the victim's medical records in support
of defendant's PCR application, and concluded she had not suffered
significant bodily injuries. Defendant argues expert testimony
and medical records would have allowed the jury to conclude the
victim exaggerated the incident. He points to the fact the jury
acquitted him on other charges, despite the victim's testimony,
to demonstrate the jury may have also acquitted him of the
aggravated assault charge.
The PCR court stated: "[defendant] ignores the fact that both
the robbery and aggravated assault charges [defendant] was
convicted of require [him] to either cause serious bodily injury
or attempt to cause serious bodily injury. [Defendant's] report
does not and cannot speculate on whether [defendant] attempted to
cause serious bodily injury." We agree with the PCR judge.
Defendant failed to meet the second prong of Strickland because
the jury could have found him guilty whether he caused or attempted
to cause serious bodily injury by repeatedly striking the victim,
an eighty-year-old woman, in the face.
Moreover, we agree with the PCR judge's assessment an
ineffective assistance of counsel claim does not arise merely
because medical expert testimony was not presented on defendant's
behalf. We recognize trial counsel has discretion in defending a
prosecution. "[C]ounsel has a duty to make 'reasonable
8 A-3990-14T2
investigations or to make a reasonable decision that makes
particular investigations unnecessary.' A failure to do so will
render the lawyer's performance deficient." State v. Chew, 179
N.J. 186, 205 (2004) (quoting State v. Savage, 120 N.J. 594, 617-
18 (1990)).
Defendant has failed to meet the second prong of the
Strickland test, because the arguments he advances do not show the
jury would have acquitted him of attempting to cause serious bodily
injury to the victim. Also, the fact the jury acquitted defendant
of other charges has no discernable link to demonstrate a
likelihood of acquittal for aggravated assault. Indeed, defendant
was acquitted of aggravated sexual assault, sexual assault, and a
count of first degree robbery, which are charges bearing different
characteristics than aggravated assault.
B.
Next, defendant argues his counsel was ineffective because
he failed to present a conflict of interest issue, namely, counsel
made advances towards defendant's fiancé, Lena Wilson, which
compromised his representation. He states, "trial counsel failed
to properly serve Lena Wilson pursuant to [Rule] 1:9-1 and [Rule]
1:9-3 because he left a subpoena at her home when she was not
there." Defendant asserts his counsel's failure to produce Wilson
was important because "a report by his PCR counsel's investigator
9 A-3990-14T2
indicat[ed] that Lena Wilson confirmed that trial counsel made a
sexual advance toward her and then ignored her when she rebuffed
[trial counsel]."
Defendant claims the trial court conducted the hearing
without Wilson and with trial counsel who could not adequately
represent him because of the conflict of interest. Defendant
asserts trial counsel's conflict of interest impacted his
performance as demonstrated by the failure to file motions to
suppress search warrants issued without probable cause for
Wilson's car and home and defendant's home.
The PCR judge fully addressed this issue. He considered a
certification defendant submitted from Wilson claiming she was
never served with the subpoena. The PCR judge found trial
counsel's query of Wilson: "If I scratch your back will you scratch
mine?" was not a sexual advance. He found the assertion Wilson
never received the subpoena conflicts with the testimony of the
investigator certifying Wilson called him after he left the
subpoena at her residence. The PCR judge noted defendant
repeatedly played a "cat and mouse" game with the court by waiting
to the eve of a hearing, submitting last minute certifications,
such as the one from Wilson, requesting his counsel be relieved.
The PCR judge further stated:
10 A-3990-14T2
[Wilson's] assertion that her subjective
perception of this one statement that was
allegedly made is without support. This
assertion [in her certification] is actually
less than that which was alleged and
considered by the trial court. Furthermore,
and most importantly, there is no argument
that has been made or advanced that this newly
presented certification would change the
opinion of our Appellate Division which has
already concluded, "Moreover, defendant
offers no evidence of defense counsel's
failure to fulfil his ethical and professional
responsibilities to him in conformity with the
Rules of Professional Conduct. In contrast,
the record supports the conclusion that
counsel's professional representation of
defendant surpassed that required by the Sixth
Amendment."
"It is undisputed that a defendant has the right to counsel
whose representation is unimpaired and whose loyalty is
undivided." State v. Murray, 162 N.J. 240, 249 (2000). When a
conflict has been alleged, "[t]he relevant inquiry in potential
conflict of interest situations is the potential impact the alleged
conflict will likely have upon defendant." Id. at 250. Here, we
previously held trial counsel's performance exceeded the standard
required by the Sixth Amendment under Strickland. Defendant offers
no proof trial counsel failed to make motions to suppress because
of an alleged sexual advance on Wilson. The record contradicts
Wilson's unsupported certification claiming she was not served a
subpoena. Defendant failed to provide prima facie evidence of how
her testimony would have led to a different outcome.
11 A-3990-14T2
C.
Defendant also argues trial counsel was ineffective for
"failing to file motions to suppress evidence seized because the
warrants lacked probable cause." Defendant asserts the warrant
for Wilson's car and home were based on: (1) an anonymous tip
whose veracity and basis were not identified; information from a
citizen contact indicating Wilson may have knowledge of the crime,
although Wilson then refused to speak with police; and (2) a
conversation with Lena Bricker, Wilson's grandmother, who informed
police Wilson told her defendant had the proceeds of the robbery.
Defendant contends Bricker told defendant's investigator she had
been threatened by two detectives into making Wilson cooperate
with the State's investigation. Defendant asserts Wilson also
informed defense investigators she was threatened with removal of
her children if she failed to cooperate and implicate defendant.
He argues Wilson and Bricker's statements corroborate one another
and evidence the search warrant lacked probable cause.
Defendant argues the search warrant for his home lacked
probable cause because it was based on the same information the
police used to secure the warrant for Wilson's car and home.
Specifically, he states, "[b]ecause the warrant for Lena Wilson's
home was issued based on an affidavit without probable cause . . .
the proceeds from that search were fruits of the poisonous tree,
12 A-3990-14T2
and could not be used to support a finding of probable cause in
this subsequent affidavit."
Defendant contends trial counsel was ineffective because
anything derived from these invalid searches should have been
suppressed, yet counsel failed to make any such motion.
The PCR judge addressed these claims at length and found:
the State's Exhibits C and D show that
[Wilson] initially reaffirmed her statement
from Ms. Bricker which led to the warrant.
Ms. Bricker's statement was sufficient to
establish probable cause for the warrant, as
she named petitioner and directly accused him
of a specific crime for which he was already
a reasonable suspect. If trial counsel had
challenged the warrant the challenge would
have been fruitless. There is a high standard
when one seeks suppression based upon a
warrant. Assuming that statement to be false,
it would still require the absence of probable
cause with that information redacted. The
Petitioner has failed to establish how that
application could have been successful in the
absence of those statements. Furthermore,
assuming there was an omission of facts
provided in the affidavit, e.g. where the
challenger alleges the affidavit is fatally
inaccurate by reason of omission, the issue
is whether the information omitted from the
affidavit is material. The test for
materiality is whether inclusion of the
omitted information would defeat a finding of
probable cause[.] [See State v. Smith, 212
N.J. 365, 399 (2012)].
In the case at bar, the search warrants were
based upon competent and credible evidence.
The statements provided to the Office of the
Public Defender were provided well after the
warrant was prepared and executed. The
13 A-3990-14T2
warrants were obtained based upon information
available to the investigating officers.
Therefore the petitioner cannot satisfy the
Strickland test. As noted above, Strickland
requires counsel to abide by professional
norms. Strickland, supra, 466 U.S. at 688.
Here, a professional may have chosen not to
object to the search because of the likelihood
of failure. Because a challenge to the
warrant would have likely failed and counsel
likely made the reasoned decision not to
pursue based on the futility of that argument,
Petitioner's argument fails.
We agree with this assessment. "[A] search executed pursuant
to a warrant is presumed valid[.]" State v. Marshall, 199 N.J.
602, 612 (2009). "Once the issuing judge has made a finding of
probable cause on the proof submitted and has issued a search
warrant, a reviewing court is obliged to pay substantial deference
to his determination." State v. Sheehan, 217 N.J. Super. 20, 27
(App. Div. 1987). "The facts should not be reviewed from the
vantage point of twenty-twenty hindsight by interpreting the
supporting affidavit in a hypertechnical, rather than a
commonsense manner." Id. at 27 (citing United States v. Ventresca,
supra, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684,
689 (1965)).
It is undisputed the claims of threats by Wilson and Bricker
were made years after they gave their original statements and
after the warrants were issued. Indeed, defendant does not
challenge the judge's findings of probable cause when issuing the
14 A-3990-14T2
warrants. The standard is clear, it is not what is known later,
but what was known at the time, which governs the probable cause
to issue a warrant. Therefore, the PCR judge was correct in
finding defendant failed to meet Strickland's requirements on this
issue.
For these reasons, we reject defendant's assertion his trial
counsel was deficient for failing to file motions to suppress the
warrants. "'Judicial scrutiny . . . must be highly deferential,'
and must avoid viewing [counsel's] performance under the
'distorting effects of hindsight.'" State v. Arthur, 184 N.J.
307, 318-319 (2005) (quoting State v. Norman, 151 N.J. 5, 37
(1997)).
Because of the inherent difficulties in
evaluating a defense counsel's tactical
decisions from his or her perspective during
trial, "a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
'might be considered sound trial strategy.'"
[Id. at 319 (citations omitted).]
Trial counsel has latitude regarding tactical decisions up
to and during trial. Moreover, as noted by the PCR judge, even
if trial counsel had filed a motion to suppress, it would have
been fruitless based on the viability of the warrants issued. We
15 A-3990-14T2
agree. Defendant failed to establish a prima facie case of
ineffective assistance of counsel, thereby warranting an
evidentiary hearing.
III.
Defendant argues this matter must be remanded because the PCR
judge did not make findings relating to his ineffective counsel
claim, specifically the following five points:
(1) failing to file a motion to question
prospective jurors about drugs or a motion to
exclude testimony about drugs at trial; (2)
failing to challenge adequately the court's
accomplice charge; (3) failing to request
criminal records of the state's witnesses; (4)
failing to object to the jury learning that
[defendant] was in custody pretrial; and (5)
failing to request a charge as to a
cooperating co-defendant.
Rule 3:22-4 states:
(a) First Petition for Post-Conviction Relief.
Any ground for relief not raised in the
proceedings resulting in the conviction, or
in a post-conviction proceeding brought and
decided prior to the adoption of this rule,
or in any appeal taken in any such proceedings
is barred from assertion in a proceeding under
this rule unless the court on motion or at the
hearing finds:
(1) that the ground for relief not
previously asserted could not
reasonably have been raised in any
prior proceeding; or
(2) that enforcement of the bar to
preclude claims, including one for
ineffective assistance of counsel,
16 A-3990-14T2
would result in fundamental
injustice; or
(3) that denial of relief would be
contrary to a new rule of
constitutional law under either the
Constitution of the United States or
the State of New Jersey.
. . . .
Of the five issues raised, only the fifth -- "failing to
request a charge as to a cooperating co-defendant" -- was presented
on appeal. Therefore, pursuant to Rule 3:22-4, defendant is barred
from asserting the four aforementioned claims, unless he meets one
of the aforementioned exceptions.
Defendant does not meet the exceptions under Rule 3:22-
4(a)(1) or (3). Although he had ample opportunity to raise these
issues on appeal, he did not. Further, the claims do not arise
from a new rule of constitutional law. As to Rule 3:22-4(a)(2),
"'[f]undamental injustice' within the meaning of [Rule] 3:22-
4(a)(2) expressly includes claims for ineffective assistance of
counsel." Pressler & Verniero, Current N.J. Court Rules, cmt. 4
on R. 3:22-4(a)(2) (2017) (citing State v. Reevey, 417 N.J. Super.
134, (App. Div. 2010), certif. denied, 206 N.J. 64 (2011)).
Additionally, the PCR judge did not address whether trial
counsel was ineffective as to the five claims raised by defendant.
However, points one (failing to file a motion to question
17 A-3990-14T2
prospective jurors about drugs or a motion to exclude testimony
about drugs at trial) and three (failing to request criminal
records of the State's witnesses) were not briefed and appeared
only as point headings. Pursuant to Rule 3:22-10(c), "[a]ny
factual assertion that provides the predicate for a claim of relief
must be made by an affidavit or certification pursuant to [Rule]
1:4-4 and based upon personal knowledge of the declarant before
the court may grant an evidentiary hearing." Additionally, Rule
3:22-10(e)(2) states a court shall not grant an evidentiary
hearing, where "the defendant's allegations are too vague,
conclusory or speculative[.]" Thus, defendant is barred from
asserting claims not attested to by affidavit or certification.
The PCR court was not required to make findings as to points one
and three and we do not consider them further.
As to point two (failing to challenge adequately the court's
accomplice charge), defendant's PCR brief argues because the jury
requested clarification on the accomplice liability charge, they
were not adequately charged. However, a jury charge will not be
grounds for appeal unless it amounts to plain error. State v.
Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.
Ct. 2254, 26 L. Ed. 2d 797 (1970). Plain error is shown by "legal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant and sufficiently grievous to justify notice
18 A-3990-14T2
by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust
result." Ibid. Defendant's argument is so sparse he has not
sufficiently briefed the issue. R. 3:22-10(c). Therefore, we
decline to address the assertions.
Lastly, defendant correctly argues the PCR judge failed to
discuss points four and five, even though the issues were
adequately briefed before the PCR court. We address these issues.
Following our review we conclude defendant does not prove
counsel's failure to object to testimony referencing his
incarceration changed the outcome of his trial. Importantly, the
trial judge instructed the jury on this issue stating:
[A]s you know, there was some testimony that
at some point, Mr. Parker was in the
Cumberland County Correctional Facility, or
that he had some form or relationship to that
facility. This information is not to be used
to show in any way that Mr. Parker is a bad
person or that he is disposed to commit
crimes. An innocent person could be in jail
simply by reason of an inability to make bail
on a given charge. Whatever brought Mr.
Parker to that facility is irrelevant to your
determinations in this case, and you should
not speculate about it. You should not
consider this in your deliberations in any
way. This evidence is before you solely for
the limited purpose as it pertains to the
evidence introduced to show ... discussions
between Mr. Parker and Mr. Palmer.
19 A-3990-14T2
We are satisfied the limiting instruction given by the trial
judge clearly and expressly instructed the jury defendant's pre-
trial incarceration was not relevant to their deliberation.
Defendant has not pointed to any evidence the jury either ignored
or misunderstood this instruction. Jurors are presumed to follow
instructions. State v. Patterson, 435 N.J. Super. 498, 511 (2014).
In point five, defendant argues trial counsel was ineffective
for failing to request the jury be given the New Jersey Criminal
Model Jury Charge: Testimony of a Cooperating Co-defendant or
Witness relating to testimony the State offered against defendant
by a co-defendant John Palmer. He states that if the jury was
given the proper charge they would have been alerted to Palmer's
potentially biased testimony.
Regarding credibility, we have previously stated "[i]n some
cases, the trial court may be required to give special instructions
to guide the jury's consideration of evidence which poses
particular credibility issues not adequately addressed by general
credibility instructions. The kinds of evidence which require
special credibility instructions include . . . accomplice
testimony . . . ." State v. Walker, 322 N.J. Super. 535, 546
(App. Div. 1999).
On the other hand, the court's instructions
regarding the jury's assessment of credibility
are provided solely to assist the jury in
20 A-3990-14T2
performing its fact-finding responsibilities.
Thus, general credibility instructions
identify various factors, such as the manner
in which a witness testified, his or her means
of obtaining knowledge of the facts and his
or her interest in the outcome of the trial,
which the jury "may take into consideration"
in determining credibility. Model Jury
Charges (Criminal) Criminal Final Charge:
Credibility of Witness (Feb. 24, 1997).
. . . .
Moreover, because general and special
credibility instructions relate to the jury's
performance of its fact-finding
responsibilities, the prosecutor and defense
counsel may comment at length in their
summations regarding the criteria applicable
to the jury's evaluation of the witnesses'
credibility. Therefore, in determining
whether a trial court's failure to give a
special credibility instruction constitutes
reversible error, a reviewing court must
consider not only the entire trial record,
including the cross-examination of any witness
whose testimony calls for a special
credibility instruction, but also the
prosecutor's and defense counsel's
summations.
[Id. at 547.]
Here, the State offered Palmer's testimony, which addressed
his role in the crime and plea agreement. He was subjected to
direct and cross-examination, giving the jury the opportunity to
assess his credibility. Also, both defense counsel and the
prosecutor spoke at length during summations regarding the
credibility of Palmer. Specifically, defendant's counsel argued
21 A-3990-14T2
"[w]hat's very important about your weighing of the testimony of
John Palmer is that he is not believable and that he is not
credible. And the reason for this is that he has a reason and he
has a motive. It's called the art of self-preservation." Defense
counsel further argued to the jury there was "reasonable doubt"
and a basis to question Palmer's credibility, due to the fact his
sentence was directly tied to his testimony. Defense counsel
argued "[Palmer] has a noose around his neck that opens and shuts
according to his testimony."
The prosecutor also addressed Palmer's sentence in her
summation, stating: "his sentence recommendation is ten to
[twenty] years, [in] New Jersey State Prison, that will run
concurrent." The prosecutor also argued, "not once has [Palmer]
ever said that it wasn't himself [sic] who committed this crime.
And not once has he ever said that it was anyone other than Keith
Kenion, Wayne Parker, and John Palmer who committed these crimes
against Mr. and Mrs. Young."
Lastly, the trial judge gave the following instruction
regarding credibility of witnesses generally:
If you believe that any witness or party
willfully or knowingly testified falsely to
any material facts in the case with the intent
to deceive you, you may give it such weight
to his or her testimony as you may deem it to
be entitled. You may believe some of it, or
22 A-3990-14T2
you may in your discretion, disregard all of
it.
Even though the specific co-defendant credibility charge was
not given, defendant failed to show how this lapse impacted the
outcome. There was an expansive discussion of Palmer's
credibility. The judge's instructions provided the jury with
guidance on the issue. The jury was able to assess Palmer's
credibility through the lens of his testimony and argumentation
of counsel. The trial judge's charge instructing the jury on the
mechanics of determining credibility was sufficient.
Affirmed.
23 A-3990-14T2