STATE OF NEW JERSEY VS. TROY J. HENDERSON (13-09-0786, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3583-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAUN STUKES,
Defendant-Appellant.
__________________________
Submitted April 25, 2017 – Decided May 3, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
05-10-2240.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael C. Kazer, Designated
Counsel, on the brief).
Diane M. Ruberton, Acting Atlantic County
Prosecutor, attorney for respondent (Derrick
Diaz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Shaun Stukes appeals from a November 6, 2014 order
denying his petition for post-conviction relief (PCR) after a
three-day plenary hearing, pursuant to our February 5, 2013 remand.
At the hearing, not only did defendant and his trial counsel
testify, but also a sheriff's officer who had been a member of the
jury. Defendant's claim before us is that his lawyer should have
struck this member of the jury pursuant to defendant's request.
We affirm.
After a two-day jury trial, defendant was convicted of second-
degree certain persons not to have a handgun, N.J.S.A. 2C:39-
7(b)(1). He was sentenced to an extended term of fourteen years
in prison with seven years of parole ineligibility.
At the PCR plenary hearing, defendant testified that he
recognized the sheriff's officer as one who "took [him] back and
forth to court" for proceedings on an unrelated offense. According
to defendant, the officer transported him approximately thirty
times over a period of eight years and "took [his] handcuffs and
shackles off plenty of times."
Defendant testified that he told his trial attorney, who
asked him if he wanted to keep the officer on the jury and defendant
responded, "you['re] my lawyer." Defendant also testified, in a
somewhat contradictory fashion, that he told counsel that he did
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not want the officer on the jury and that she told him she could
not do anything because she had run out of jury challenges.
Trial counsel1 testified that as part of her normal practice,
she gave her clients a pen and paper before jury selection began
so they could write any objections they had to potential jurors.
During jury selection, initially defendant wrote a note objecting
to the officer appearing on the jury for the sole reason that the
officer was in law enforcement. She told defendant that the
officer should be left on the jury because he was an intelligent
African-American man, who appeared to have the ability to be
impartial. She further testified that she told defendant that
"it's very difficult to get African-Americans as part of the jury
pool." Counsel testified that after a few minutes, "[defendant]
agreed to accept [the officer]."
She testified that defendant never told her that he knew the
officer as the person who transported him back and forth to court.
She also testified that after their discussion, defendant did not
tell her he wanted the officer excused from the jury. It was her
normal practice to strike a potential juror if her client wanted
the juror stricken, even if she did not agree with the decision.
1Trial counsel testified that she had been disbarred in 2010 based
on a criminal conviction.
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She would not have chosen the officer if defendant had told her
that he wanted the officer stricken.
The officer testified that he was employed as a sheriff's
officer at the courthouse at the time of jury selection. He drove
a bus that transported inmates from the county jail to the
courthouse. When chosen as a juror, he "[v]ery, very vaguely[]"
remembered transporting defendant. He also testified that his
recollection of defendant did not shape or guide his verdict and
that he did not tell his fellow jurors that he was familiar with
defendant.
The PCR court noted that when the defense said it was
satisfied with the jury, three defense challenges remained. The
court further found trial counsel to be credible and defendant's
testimony to be contradictory and incredible.
Defendant raises the following single issue on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE TRIAL
COUNSEL'S TESTIMONY THAT SHE FAILED TO
CHALLENGE JUROR [], A SHERIFF'S OFFICER WHO
ADMITTED HAVING A "VAGUE RECOLLECTION" OF
TRANSPORTING DEFENDANT FROM THE ATLANTIC
COUNTY JAIL TO COURT AND BACK, BECAUSE HE WAS
AN AFRICAN-AMERICAN, IN CONJUNCTION WITH POST-
CONVICTION RELIEF CRITERIA REQUIRING THAT
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BE
VIEWED IN A LIGHT FAVORING DEFENDANT,
SATISFIED DEFENDANT'S "PREPONDERANCE OF THE
EVIDENCE" BURDEN OF PROOF.
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Defendant's petition for PCR arises from Rule 3:22-2(a),
which permits challenge of a conviction based on ineffective
assistance of counsel. To establish ineffective assistance of
counsel, a defendant must prove that: (1) "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 defense." Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)
(adopting the Strickland two-part test in New Jersey). "[T]o
establish prejudice, a defendant must show not only that the
outcome of his trial would have been different absent the alleged
deficient representation, but also that the deficient
representation rendered the result of his proceeding fundamentally
unfair or unreliable." State v. Holmes, 290 N.J. Super. 302, 311
(App. Div. 1996).
It is well-established that "counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment."
Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.
2d at 695. "[A]n otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or her
counsel's exercise of judgment during the trial." State v.
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Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187
N.J. 293, 314 (2006)).
We defer "to a PCR court's factual findings based on its
review of live witness testimony." State v. Nash, 212 N.J. 518,
540 (2013). We do not second-guess the fact-finder's credibility
findings except in extraordinary circumstances. "An appellate
court's reading of a cold record is a pale substitute for a trial
judge's assessment of the credibility of a witness he has observed
firsthand." Ibid. We uphold the PCR court's factual findings as
long as the findings "are supported by sufficient credible evidence
in the record." Ibid.
Defense counsel testified that defendant only objected to the
officer because he was a law enforcement officer. Counsel told
defendant that although the officer was in law enforcement, it was
nonetheless beneficial to have him on the jury because he was
African-American, intelligent and appeared to be impartial.
Defendant then agreed to have the officer on the jury. Because
counsel believed it was difficult to impanel African-American
jurors in Atlantic County, it was counsel's strategy for the
officer to remain on the jury. "Merely because a trial strategy
fails does not mean that counsel was ineffective." 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). Defendant never told her that he
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was familiar with the officer or that he definitely wanted the
officer stricken. Based on our acceptance of the PCR court's
credibility findings, sufficient credible evidence was presented
to support the court's conclusion that trial counsel's
representation was not deficient.
Affirmed.
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