STATE OF NEW JERSEY VS. MUMEEN A. STARKS (08-07-2240, 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NOT FOR PUBLICATION WITHOUT THE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-3586-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MUMEEN A. STARKS,
Defendant-Appellant.
____________________________
Submitted February 1, 2017 – Decided July 24, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 08-07-2240.
Joseph E. Krakora, Public Defender, attorney
for appellant (William P. Welaj, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Camila A.
Garces, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from a December 2, 2014 order, denying his
first petition for post-conviction relief (PCR). Having reviewed
the record in light of the applicable legal principles, we affirm.
I.
Following a jury trial, defendant was convicted of murder,
N.J.S.A. 2C:11-3(a)(1)(2); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a
firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant
was sentenced on December 7, 2009, to an aggregate term of life
in prison, subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2.1
The convictions stemmed from defendant firing several
gunshots at approximately 10:30 p.m. on April 18, 2008, into a
vehicle occupied by Tynesha Morris and her cousin, Theo Stewart,
following a verbal altercation with Morris. Stewart was struck
by two of the bullets and died as a result of his gunshot wounds.
At trial, the State presented eyewitness testimony from Morris,
her cousin, Frank Parker, and their mutual friend, Demetrius
1
Following the trial, defendant pled guilty to third-degree
unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10, and
second-degree eluding, N.J.S.A. 2C:29-2(b), and was simultaneously
sentenced. Those offenses occurred five days after the homicide,
were charged in a separate indictment, and are not part of this
appeal.
2 A-3586-14T2
Heyward. Parker and Heyward testified to recognizing defendant
from the neighborhood. Heyward saw defendant pull out a gun and
fire three to four shots within two feet of him. Parker heard the
gunshots and saw defendant running from the scene. Morris observed
defendant holding a gun immediately after the shots were fired.
Defendant was described as wearing a black hoodie with a
distinctive multi-colored design.
Defendant filed a direct appeal, asserting the following
arguments:
POINT I: THE TRIAL JUDGE ERRED IN DENYING THE
DEFENDANT'S REPEATED REQUESTS FOR A MISTRIAL,
A REQUEST BASED ON THE INCLUSION OF NUMEROUS
INSTANCES OF PREJUDICIAL TESTIMONY.
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE
DEFENDANT'S REQUEST TO HAVE THE JURY CHARGED
ON PASSION/PROVOCATION MANSLAUGHTER AS A
LESSER OFFENSE OF MURDER.
POINT III: THE DEFENDANT'S SENTENCE IS
EXCESSIVE.
We affirmed defendant's convictions and sentence, State v. Starks,
No. A-2802-09 (App. Div. Oct. 24, 2011), and our Supreme Court
denied defendant's petition for certification. State v. Starks,
210 N.J. 109 (2012).
On June 26, 2012, defendant filed a timely pro se petition
for PCR and was later assigned counsel who filed a supporting
brief. In the brief, defendant argued that his trial counsel was
3 A-3586-14T2
ineffective for: (1) failing to present an alibi defense; (2)
failing to advise defendant about his right to testify at trial;
(3) failing to inform the judge that a juror had been sleeping;
and (4) failing to object to an erroneous stipulation. Defendant
also argued that he was denied a fair trial because of the trial
court's mishandling of a jury question and the cumulative effect
of the errors. In addition, defendant argued that he was denied
the effective assistance of appellate counsel.
Following oral argument, Judge Verna G. Leath rejected
defendant's claim that his "appellate counsel's performance was
deficient or that there was a reasonable probability that but for
counsel's deficient performance (which was not established),
defendant's conviction[s] would have been overturned." Based on
trial counsel's performance at trial as well as the fact that
defendant's convictions and sentence were affirmed on appeal,
Judge Leath also rejected defendant's assertion that "the
cumulative effect of trial counsel's errors rendered his trial
unfair."
Judge Leath did, however, grant defendant's request for an
evidentiary hearing limited to defendant's claims regarding trial
counsel's failure to call alibi witnesses, to advise defendant of
his right to testify, and to object to an erroneous stipulation
entered without defendant's consent. Regarding the sleeping juror
4 A-3586-14T2
claim, Judge Leath considered defendant's averment in his
supporting certification that trial counsel took no action when
he informed him that he observed one of the jurors who later became
the foreperson nodding off during the course of the trial.
However, Judge Leath precluded its exploration at the evidentiary
hearing, finding that such testimony would not elucidate the issue
since there was nothing in the record "to indicate if or when a
juror was sleeping" and nothing to indicate whether a juror's eyes
were closed to enhance the "ability to focus" which "is not
uncommon in . . . trials[.]"
The evidentiary hearing commenced on September 12, 2013, at
which time Judge Leath conducted a preliminary voir dire of trial
counsel focused solely on defendant's waiver of the attorney-
client privilege in order to pursue his ineffective assistance of
counsel claim. Prior to the hearing, the prosecuting attorney
disclosed to Judge Leath and PCR counsel that, three days prior,
he had spoken to trial counsel briefly to prepare him to testify
for the State at the upcoming evidentiary hearing and specifically
discussed with trial counsel the alibi witnesses he spoke with and
his investigator's attempts to locate them. At PCR counsel's
request, Judge Leath sought to ascertain whether trial counsel
violated the attorney-client privilege during that five-minute
conversation with the prosecuting attorney by discussing the case
5 A-3586-14T2
outside the presence of defendant and PCR counsel.2 Judge Leath
also permitted PCR counsel to cross-examine trial counsel on that
specific issue.
During the voir dire, there were inconsistencies between
trial counsel's recollection of the conversation and the
prosecuting attorney's account, prompting defendant to move to
disqualify the prosecuting attorney in order to call him as a
witness to undermine trial counsel's credibility. Defendant's
application to disqualify the prosecuting attorney was denied by
Judge Leath who found that defendant "failed to show a compelling
and legitimate need" for disqualification because the prosecuting
attorney was "willing to stipulate as to what the conversation
. . . was about."
Over defendant's objection, the case was then transferred to
Judge Robert H. Gardner to continue the evidentiary hearing. PCR
counsel opposed the transfer, arguing that because credibility was
2
See ABA Comm. on Ethics & Prof'l Responsibility, Formal Opinion
10-456 (July 14, 2010) (addressing disclosure of information to a
prosecutor by a criminal defense lawyer whose former client claims
ineffective assistance of counsel and providing that "[o]utside
judicial proceedings, . . . the lawyer may not voluntarily disclose
any information, even non-privileged information, relating to the
defendant's representation without the defendant's informed
consent.") available at
https://www.americanbar.org/content/dam/aba/images/crsj/DPDPRP/e
thics_opinion_10_456.authcheckdam.pdf.
6 A-3586-14T2
a key factor, Judge Leath was in a better position to assess PCR
counsel's credibility from the inconsistencies elicited during the
preliminary voir dire. Judge Gardner overruled PCR counsel's
objection to the transfer. Judge Gardner explained that the case
was assigned to Judge Leath while he was assigned to the Family
Part. However, once he returned to the Criminal Division, the
Criminal Presiding Judge transferred the case to him presumably
because he had presided over the trial. Noting that there was no
prejudice to defendant because there was no testimony elicited on
the substantive PCR claims, Judge Gardner proceeded to conduct the
evidentiary hearing over the course of three days.
Six witnesses testified at the evidentiary hearing. Trial
counsel and his investigator testified for the State, and
defendant, his mother, his sister and his grandfather testified
for the defense. Defendant's mother, sister and grandfather, all
of whom resided with defendant, testified consistent with their
respective certifications that defendant was at home on the night
of the homicide. Defendant's mother testified that defendant
returned home at approximately 7:00 p.m. and stayed home for the
rest of the night. She specifically recalled checking on him at
approximately 11:00 p.m. and 2:00 a.m. and he was asleep with his
one-year-old daughter. Although she never provided the
information to the authorities when defendant was arrested and
7 A-3586-14T2
charged, she provided the information to an investigator and
expected to be called as a witness at defendant's trial. However,
despite attending most of the trial proceedings, she was never
called to the stand.
Defendant's grandfather could not specify what time defendant
returned home. However, he testified that defendant was home
before dinner, which was usually about 7:00 p.m., and stayed home
with his daughter the rest of the night. Although he never
provided the information to the authorities and was never
interviewed, he too expected to testify at defendant's trial but
was never called. Defendant's sister testified that she saw
defendant at home at 3:40 p.m. when she returned home from school.
She testified that defendant asked her to babysit his daughter,
but she refused. Although she could not specify exactly where
defendant was in the house between the hours of 10:00 p.m. and
11:00 p.m., she testified that defendant was home all day and
night and she wanted to testify to that effect but was never
interviewed or called as a witness. Nonetheless, she also
acknowledged that she never provided the information to the
authorities once she became aware of defendant's arrest.
Defendant testified that he told his trial attorney, William
Strauss, that he was at home at the time in question and that all
the members of his household could vouch for him being there.
8 A-3586-14T2
Defendant acknowledged that the notice of alibi and the defense
witness list included the names he provided. Defendant testified
he did not know that Strauss was not going to call the alibi
witnesses until Strauss began his summation. When he confronted
Strauss about it, Strauss responded that "he had the case won, he
didn't need to call them." In his supporting certification,
defendant averred that when he confronted Strauss about not calling
the alibi witnesses, Strauss stated that "because they were my
family, the jury would not believe them."
Defendant also testified that he wanted to testify at his
trial. However, rather than prepare him to testify or explain the
ramifications of testifying, Strauss simply "told [him] not to"
and defendant accepted it because he did not know that he could
go against his attorney's advice. Defendant conceded, however,
that during the trial, he answered in the affirmative when Judge
Gardner asked him whether his attorney had explained all the
ramifications of testifying or remaining silent and whether the
decision to remain silent was his choice.
Defendant testified further that he did not become aware of
the trial stipulation agreed to by Strauss regarding the hoodie
until 2012 when he was reading his trial transcripts. According
to defendant, he would not have agreed to such a stipulation. On
cross-examination, when defendant was asked whether he recalled
9 A-3586-14T2
Strauss stating on the record during the trial that he was
stipulating to the hoodie to avoid the State calling the arresting
officer to testify that defendant was wearing the hoodie when he
was arrested on other charges, defendant denied hearing that
colloquy despite being present.
Strauss, an experienced defense attorney who tried over sixty
cases for the Public Defender's Office over twenty-five years,
testified that he did in fact speak with defendant about his case
on multiple occasions, and that defendant advised him of several
family members with whom he resided as well as his girlfriend who
could provide the basis for an alibi defense. According to
Strauss, while the case was pending, he, defendant's mother and
three of his sisters discussed providing an alibi for defendant
in the courthouse hallway after a status conference. In addition,
Strauss testified that he had weekly telephonic conversations with
defendant's mother. Based on these conversations, Strauss filed
a notice of alibi in anticipation of cooperation by the family
members and requested his investigator, Michael Petrillo, to take
statements from the witnesses to support an alibi defense. To
corroborate his testimony, both the notice of intent to rely on
alibi as a defense and the request for investigation were admitted
into evidence at the evidentiary hearing.
10 A-3586-14T2
Petrillo confirmed that he was requested by Strauss to
interview defendant's girlfriend and eight of defendant's family
members, including defendant's mother, grandfather and sister, to
support an alibi defense. He obtained a statement from defendant's
mother that defendant was home on the night in question and that
she checked on him repeatedly during the night. Petrillo also
spoke with defendant's grandfather but did not take a statement
from him. None of the other witnesses provided by defendant
responded or cooperated despite Petrillo's and Strauss' requests
and representations by defendant's mother and family members that
the witnesses would cooperate.
Strauss testified that when he started the trial, he intended
to call the alibi witnesses. However, he "felt that during the
trial [he] was making some headway with some of the [State's]
witnesses" and he did not believe that the alibi witnesses would
"help us win the case." Further, Strauss testified that because
he did not have statements from the alibi witnesses, other than
defendant's mother, he was unable to assess whether there was
consistency among them, and was concerned that none of the
purported alibi witnesses had notified the authorities of
defendant's alibi when he was arrested and charged. Regarding
defendant's mother, Strauss ultimately decided against using her
as an alibi witness. In addition to the fact that she would be
11 A-3586-14T2
subject to impeachment based on her relationship to defendant, he
had additional concerns about her credibility. Specifically, her
statement that it was impossible for defendant to be out of the
house on the night in question because he had a small child was
inconsistent with defendant being arrested about a week later
driving his girlfriend's car.
Strauss testified that "[h]aving a family member or a friend
testify to an alibi is not . . . airtight." According to Strauss,
in his experience, "if you put on an alibi that has any weakness
you risk having the burden [of proof] shift from the State to the
defendant" because "the jury's going to wonder . . . [w]hy are you
putting on this alibi that doesn't really stand up?" Strauss
believed that "you're better off attacking . . . why [the State]
didn't prove their case as opposed to putting on an alibi and risk
losing . . . credibility[.]" Strauss testified that he explained
to defendant why he was resting without calling the alibi
witnesses. When defendant protested that he had eight witnesses
compared to the State's three witnesses, Strauss "tried to explain
to him that the number of witnesses doesn't overcome the
credibility issues." Strauss characterized his decision to not
present an alibi defense as a strategic one, explaining that
because there were three eyewitnesses who knew defendant from the
past and placed him at the scene, "it was almost irrefutable that
12 A-3586-14T2
he was present at the scene. And to put on an alibi in the face
of that . . . , the jury would have not reacted well to that at
all."
Strauss testified further that he did explain to defendant
the advantages and disadvantages of testifying at the trial.
Strauss acknowledged that defendant had no prior criminal record,
lived approximately three miles away from the homicide scene, and
would have denied being at the scene if he had testified. However,
he explained to defendant that since "[t]he strategy is to concede
that you were at the scene. . . . [I]f you get on the stand and
testify to an alibi when the strategy is that none of these people
saw what they claimed they saw then that just puts . . . our case
at risk." According to Strauss, his discussion with defendant was
"very civil" and defendant "agreed with" the strategy. Strauss
testified that nonetheless "prior to going out on the record [he]
made it clear to [defendant] it's his decision whether to testify
or not. It's his right. And based upon that he . . . had to come
out in court and he had to tell the court what his choice was."
Regarding the hoodie, Strauss acknowledged entering into a
stipulation with the prosecutor that the hoodie admitted into
evidence at trial was the hoodie defendant was wearing at the time
of his arrest. Strauss explained that by agreeing to the
stipulation, he avoided any testimony by the arresting officer
13 A-3586-14T2
concerning the circumstances of defendant's arrest, including the
location and the ensuing eluding charge. Strauss testified that
he told defendant what he was doing and why he was doing it and
defendant said "fine." However, instead of instructing the jury
that the parties agreed that the hoodie "was what [defendant] was
wearing at the time of his arrest[,]" the court erroneously
instructed the jury that "[t]he parties agree[d] that this [was]
the hoodie in this particular case." Strauss testified that
although he was aware at the time that the court had misread the
stipulation, as a matter of trial strategy, he did not object and
call attention to the issue because he did not want to "highlight
over and over this [hoodie]." In addition, Strauss did not request
a curative instruction because "what the judge told the jury,
while we didn't agree with that stipulation, was not inconsistent
with my argument to the jury that my client was merely present at
the time of the homicide."
Following the evidentiary hearing, Judge Gardner denied
defendant's petition in a written opinion. Preliminarily, Judge
Gardner found the testimony of "trial counsel and his investigator
. . . to be credible and the facts testified to by [defendant] and
his family not to be consistent or credible." Judge Gardner noted
that while Petrillo "testified consistently with . . . Strauss and
corroborated trial counsel's version of how the investigation
14 A-3586-14T2
unfolded[,]" defendant's family members were neither "consistent"
nor "credible." In rejecting defendant's contention that Strauss
did not adequately investigate, prepare, and produce alibi
witnesses at trial, Judge Gardner explained:
Mr. Strauss is an attorney of extensive
experience. He clearly and consistently
articulated his reasons for not pursuing the
alibi defense in his testimony. Mr. Strauss'
reasons for not calling the family as alibi
witnesses was a strategic decision based on
their lack of cooperation and his inability
to have their statements taken so as to
determine their testimony and how they would
be perceived on the stand. Additionally, he
felt that the alibi testimony they would give
would not provide a uniform story to bolster
the arguments that [defendant] was not at the
location at the time of the incident. His
decisions were clearly grounded in a choice
of trial strategy by an experienced trial
attorney. Mr. Strauss testified that, in his
determination, the alibi that [defendant]
wanted him to argue to the jury was not going
to factually be a "perfect alibi" due to the
lack of cooperation of corroborating
witnesses. It was Mr. Strauss' trial strategy
to argue that [defendant] was at or near the
location, but that the identification made by
the eyewitnesses was faulty. This [c]ourt
does not find that the strategy chosen by
trial counsel was unreasonable given the
circumstances.
Next, Judge Gardner evaluated defendant's claim that he did
not knowingly and voluntarily waive his right to testify at trial
because trial counsel failed to properly advise him of his right
and failed to properly prepare him to testify. Citing State v.
15 A-3586-14T2
Savage, 120 N.J. 594, 631 (1990), certif. denied, 228 N.J. 35
(2016), Judge Gardner noted that while "'counsel's responsibility
includes advising a defendant of the benefits inherent in
exercising that right and the consequences inherent in waiving
it'" our Supreme Court has stated that "'to ensure that counsel
meets that obligation, it may be the better practice for a trial
court to inquire of counsel whether he or she had advised a . . .
defendant[] of his right to testify.'" Ibid. In rejecting
defendant's argument, Judge Gardner accepted Strauss' testimony
that he did, in fact, speak with defendant about testifying at
trial. In addition, Judge Gardner pointed out that
the [c]ourt conducted a voir dire of
[defendant] about his right to testify and the
positive and negative aspects of doing so
. . . . [Defendant] stated under oath that he
had spoken to his attorney, discussed the
matter and had elected not to testify. . . .
Therefore, whether or not [defendant] spoke
with his attorney is of no moment. This
[c]ourt conducted the voir dire of [defendant]
and he acknowledged his waiver of the right
to testify.
Finally, Judge Gardner evaluated defendant's contention that
the "[c]ourt misread the stipulation regarding the hoodie . . .
[and] mistakenly led the jury to believe he was the shooter."
Judge Gardner explained:
[Defendant] contends that while it does appear
that trial counsel stipulated that . . . the
hoodie, was the same hoodie that [defendant]
16 A-3586-14T2
was wearing when he was arrested, it does not
appear that . . . trial counsel stipulated
that this was the hoodie worn by the shooter
in this particular case. This allegation
should have been raised by appellate counsel
on the direct appeal as the issue was wholly
contained within the trial record. R. 3:22-
3; 3:22-4. However, no such claim was made
in the appeal.
Even if this claim was not procedurally
barred, this claim fails substantively as
well. Trial counsel's strategic and tactical
decisions will not ordinarily provide the
basis for a finding of ineffective assistance
of counsel, even if they are miscalculations.
State v. Castagna, 187 N.J. 293, 314-15
(2006). A stipulation such as one in this
case is within the realm of trial counsel's
strategic decision. Mr. Strauss testified at
the PCR hearing that although he was aware at
the time that the court had misread the
stipulation, he, as a matter of trial
strategy, did not object and call attention
to the issues regarding the hoodie to the
jury. Further, [defendant] was in court at
the time and lacks an explanation for why he
did not bring up the topic with Mr. Strauss
at the time it happened. . . .
Even assuming such a strategic decision
to stipulate to the hoodie in question amounts
to ineffective assistance of counsel, however,
it is highly unlikely that without the
stipulation the outcome of the case would have
been different. Thus, [defendant] has failed
to show that trial counsel was ineffective or
that but-for the alleged ineffectiveness of
counsel, the outcome of the case would have
been different.
Judge Gardner concluded that
the trial strategy, decision making, and
performance of Mr. Strauss was not deficient
17 A-3586-14T2
pursuant to Strickland v. Washington[, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)]. Even if this [c]ourt were to assume
that the performance of trial counsel and
appellate counsel were deficient, the evidence
of guilt of [defendant] that was produced at
trial was overwhelming. Therefore, this
[c]ourt finds that there is no reasonable
probability that trial or appellate counsels'
performance would have changed the ultimate
result in this case.
This appeal followed. On appeal, defendant raises the
following arguments for our consideration.
POINT I: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF FOLLOWING AN EVIDENTIARY HEARING SINCE
THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL IN SEVERAL
DIFFERENT RESPECTS, WHILE THE FACTUAL FINDINGS
MADE BY THE TRIAL COURT UNDERLYING ITS DENIAL
WERE NOT SUPPORTED BY THE RECORD ESTABLISHED
AT THE HEARING.
A.3 THE TRIAL COURT ERRED IN
DENYING THAT ASPECT OF THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF MAINTAINING HE
DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO THOROUGHLY INVESTIGATE
AND PRESENT AN ALIBI DEFENSE ON THE
DEFENDANT'S BEHALF.
B. THE TRIAL COURT ERRED IN
DENYING THAT ASPECT OF THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF MAINTAINING HE
DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
3
Defendant's sub-parts have been renumbered for clarity.
18 A-3586-14T2
AS A RESULT OF COUNSEL'S FAILURE TO
THOROUGHLY DISCUSS WITH HIS CLIENT
ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION
WHETHER OR NOT TO TESTIFY, AS A
RESULT OF WHICH THE DEFENDANT DID
NOT TESTIFY IN HIS OWN DEFENSE.
C. THE TRIAL COURT ERRED IN
DENYING THAT ASPECT OF THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF MAINTAINING HE
DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO OBJECT TO THE TRIAL
COURT'S ERRONEOUS RECITATION OF A
STIPULATION TO THE JURY DURING ITS
CHARGE, AND BY FAILING TO REQUEST AN
IMMEDIATE CURATIVE INSTRUCTION TO
AMELIORATE THE RESULTING
PREJUDICIAL IMPACT TO THE
DEFENDANT.
POINT II: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
OF TRIAL COUNSEL'S FAILURE TO INFORM THE COURT
A JUROR HAD BEEN SLEEPING DURING THE COURSE
OF THE TRIAL.
POINT III: THE POST CONVICTION RELIEF JUDGE
ERRED IN DENYING POST CONVICTION RELIEF
COUNSEL'S REQUEST TO RETURN THE EVIDENTIARY
HEARING TO THE POST CONVICTION RELIEF JUDGE
WHO ORIGINALLY PRESIDED OVER LEGAL ARGUMENT
WHICH RESULTED IN ORDERING AN EVIDENTIARY
HEARING, AND WHO ALSO THEREFORE HEARD PARTIAL
TESTIMONY FROM TRIAL COUNSEL.
19 A-3586-14T2
II.
Claims of ineffective assistance of counsel (IAC) are
generally governed by the standards set forth in Strickland v.
Washington, supra, and United States v. Cronic, 466 U.S. 648, 104
S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and adopted by this Court
in interpreting the New Jersey Constitution. See State v. Allah,
170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987).
To be entitled to a new trial based on IAC, a defendant must make
a two-part showing:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction . . . resulted from a breakdown in
the adversary process that renders the result
unreliable.
[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).]
Defendant bears the burden of proving both elements of an IAC
claim by a preponderance of the evidence. State v. Gaitan, 209
N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454,
185 L. Ed. 2d 361 (2013).
20 A-3586-14T2
In determining whether defense counsel's representation was
deficient, "'[j]udicial scrutiny . . . must be highly
deferential,' and must avoid viewing the performance under the
'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5,
37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.
at 2065, 80 L. Ed. 2d at 694). 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.'"
Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.
at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.
Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).
In determining whether defense counsel's alleged deficient
performance prejudiced the defense, "[i]t is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding." Id. at 693, 104 S. Ct. at 2067,
80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing
that "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
21 A-3586-14T2
sufficient to undermine confidence in the outcome." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris,
181 N.J. 391, 432 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.
2973, 162 L. Ed. 2d 898 (2005).
We review the PCR court's findings of fact based on "live
witnesses testimony" to determine whether such findings are
supported by sufficient credible evidence in the record. State
v. Nash, 212 N.J. 518, 540 (2013). However, we review the PCR
court's conclusions of law under a de novo standard. Id. at 540-
41; see also Harris, supra, 181 N.J. at 420-21. For mixed
questions of law and fact, we give deference to the supported
factual findings of the PCR court, but review de novo the PCR
court's application of any legal rules to such factual findings.
Harris, supra, 181 N.J. at 416 (citing State v. Marshall, 148 N.J.
89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997)). "[W]here no evidentiary hearing has been held, we
'may exercise de novo review over the factual inferences drawn
from the documentary record by the [PCR judge].'" State v. Reevey,
417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in
original) (quoting Harris, supra, 181 N.J. at 421), certif. denied,
206 N.J. 64 (2011). Indeed, "[a]ssessing IAC claims involves
matters of fact, but the ultimate determination is one of law[.]"
Harris, supra, 181 N.J. at 419.
22 A-3586-14T2
Judged by these standards, we conclude that trial counsel's
performance was not deficient and we affirm substantially based
upon Judge Gardner's well-reasoned written opinion. Contrary to
defendant's assertions, we are satisfied that Judge Gardner's
factual findings based upon his credibility assessments are
supported by sufficient credible evidence in the record to warrant
our deference, and we concur with his conclusions of law. Notably,
we reject defendant's contention that Judge Gardner erred in
overruling defendant's objection to the transfer of the PCR
proceedings from Judge Leath. Although defendant "believed trial
counsel's credibility had been adversely impacted" during the
preliminary voir dire, rendering Judge Leath better suited to
evaluate trial counsel's credibility, a factual inconsistency
between trial counsel's and the prosecuting attorney's
recollection of a five-minute conversation does not rise to the
level of a credibility finding. We agree with Judge Gardner that
there was no prejudice to defendant because trial counsel's
testimony about the substantive PCR claims occurred before Judge
Gardner who had the "opportunity to hear and see the witness[]"
and make his own credibility findings. State v. Gamble, 218 N.J.
412, 425 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
As a whole, we find the claims defendant offers to establish
IAC lacking in sufficient merit to require more than limited
23 A-3586-14T2
comments in a written opinion. R. 2:11-3(e)(2). Those comments
are as follows. It is well established that "[i]n matters of
trial strategy, we accord great deference to the decisions of
counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991). Moreover,
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other words,
counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must
be directly assessed for reasonableness in all
the circumstances, applying a heavy measure
of deference to counsel's judgments.
[Strickland, supra, 466 U.S. at 690-91, 104
S. Ct. at 2066, 80 L. Ed. 2d 695.]
Defendant argues that "[t]rial counsel, in essence,
intentionally ignored a defense which the defendant believed was
substantiated not merely by himself, but by numerous other
individuals[,]" and "despite the defendant's desire to testify at
trial, counsel . . . failed to call him as a witness[.]" It is
axiomatic that one of the most difficult strategic decisions that
any trial attorney must confront is determining which witnesses
to call to the stand. State v. Arthur, 184 N.J. 307, 320 (2005).
24 A-3586-14T2
A trial attorney must consider what testimony
a witness can be expected to give, whether the
witness's testimony will be subject to
effective impeachment by prior inconsistent
statements or other means, whether the witness
is likely to contradict the testimony of other
witnesses the attorney intends to present and
thereby undermine their credibility, whether
the trier of fact is likely to find the witness
credible, and a variety of other tangible and
intangible factors.
[Id. at 320-21.]
Therefore, like other aspects of trial representation, a defense
attorney's decision concerning which witnesses to call to the
stand is "an art," and a court's review of such a decision should
be "highly deferential." Strickland, supra, 466 U.S. at 689, 693,
104 S. Ct. at 2065, 2067, 80 L. Ed. 2d at 694, 697. Moreover,
"[c]ounsel's fear that a weak alibi could cause more harm than
good is the type of strategic decision that should not be second
guessed on appeal." State v. Drisco, 355 N.J. Super. 283, 291
(App. Div. 2002), certif. denied, 178 N.J. 252 (2003). Here,
trial counsel's decision to withhold an alibi defense from the
jury was entitled to highly deferential review by the PCR court,
a standard to which the PCR court abided in concluding that there
was a reasonable basis for trial counsel's strategic decision.
Even assuming trial counsel was deficient in failing to call
the proffered witnesses, we are unable to find prejudice to the
defense such that there is a "reasonable probability" the outcome
25 A-3586-14T2
of defendant's trial would have been different, or "the factfinder
would have had a reasonable doubt respecting guilt." Strickland,
supra, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at
698. In making a prejudice finding, the PCR court must consider
"the totality of the evidence before the judge or jury" and "a
verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming
record support." Id. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d
at 698-99. Here, as Judge Gardner noted, the verdict had
overwhelming support in the trial record. Cf. State v. Pierre,
223 N.J. 560 (2015) (reversing denial of defendant's petition for
PCR and finding that his attorney was deficient in failing to
present evidence, including the testimony of absent witnesses,
that could have reinforced defendant's alibi and defendant was
prejudiced because there was sparse evidence implicating him in
the crimes).
Defendant argues further that Judge Gardner erred in
determining that his voir dire with defendant regarding his
election to testify or remain silent was dispositive of defendant's
IAC claim that trial counsel failed to sufficiently discuss the
decision with him. However, Judge Gardner's ruling comports with
State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005), where
we held "that regardless of whether defendant was advised by
26 A-3586-14T2
counsel," the trial judge's explanation of defendant's right to
testify and the possible consequences of his choice, as occurred
here, defeats an IAC claim and cures any alleged deficiency in
counsel's performance in that regard.
Defendant also argues that "contrary to the trial court's
conclusion, the effect of the misread stipulation guaranteed the
outcome of the case to the defendant's detriment, and trial
counsel's failure to take appropriate action could not possibly
have been characterized as constituting sound trial strategy." We
disagree.
The quality of counsel's performance
cannot be fairly assessed by focusing on a
handful of issues while ignoring the totality
of counsel's performance in the context of the
State's evidence of defendant's guilt. As a
general rule, strategic miscalculations or
trial mistakes are insufficient to warrant
reversal "except in those rare instances where
they are of such magnitude as to thwart the
fundamental guarantee of [a] fair trial."
[Castagna, supra, 187 N.J. at 314-15
(alteration in original) (citations
omitted).]
This is not such an instance.
Additionally, defendant asserts that an evidentiary hearing
was warranted to further address his claim that trial counsel was
ineffective for failing to take action when he informed him that
a juror was sleeping during the course of the trial. The mere
27 A-3586-14T2
raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial
courts should grant evidentiary hearings only if the defendant has
presented a prima facie claim of ineffective assistance, material
issues of disputed fact lie outside the record, and resolution of
the issues necessitate a hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013). "Rule 3:22-10 recognizes judicial
discretion to conduct such hearings." State v. Preciose, 129 N.J.
451, 462 (1992). Here, we discern no abuse of discretion in Judge
Leath's rejection of defendant's self-serving claim without
granting an evidentiary hearing as defendant's vague assertions
in essence amounted to uncorroborated "bald assertions[.]"
Cummings, supra, 321 N.J. Super. at 170.
The purpose of the constitutional guarantee of effective
assistance of counsel "is simply to ensure that criminal defendants
receive a fair trial." Strickland, supra, 466 U.S. at 689, 104
S. Ct. at 2065, 80 L. Ed. 2d at 694; see also Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) ("The test [of
ineffective assistance] has nothing to do with what the best
lawyers would have done. Nor is the test even what most good
lawyers would have done. . . . We are not interested in grading
lawyers' performances; we are interested in whether the
28 A-3586-14T2
adversarial process at trial, in fact, worked adequately.")
(quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.
1992), cert. denied, 514 U.S. 1131, 115 S. Ct. 2008, 131 L. Ed.
2d 1008 (1995)), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133
L. Ed. 2d 103 (1995). Thus, "[t]he test is not whether defense
counsel could have done better, but whether he met the
constitutional threshold for effectiveness." Nash, supra, 212
N.J. at 543.
A review of the complete record shows that trial counsel made
an objectively reasonable decision regarding his overall strategy
in defending the charges against defendant and that he conducted
this defense in a reasonably effective manner. Therefore, we are
satisfied that trial counsel's representation of defendant fell
"within the wide range of reasonable professional assistance" to
which an accused is entitled and that defendant received a "fair
trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694.
Affirmed.
29 A-3586-14T2