STATE OF NEW JERSEY VS. WILLIE E. SHUMAN, JR. (08-06-0597, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0013-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIE E. SHUMAN, JR., a/k/a
PUMPKIN SHUMAN,
Defendant-Appellant.
__________________________________________________________
Submitted September 27, 2017 – Decided October 12, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
08-06-0597.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen Ann Lodeserto, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Joseph Paravecchia,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Willie Shuman, Jr. appeals from the April 20, 2016
order of the trial court denying his petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm.
A Mercer County grand jury charged defendant and co-
defendants Michael Smith, Dennis Merritt (Dennis),1 and Melanie
Merritt (Melanie) with first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four);
second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b) (count six); and first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3
(count seven).
Defendant moved to suppress the videotaped statements he gave
to the police after he was arrested. A Miranda2 hearing was
conducted on July 23, 2009. Detective Matthew Kemp of the West
Windsor Police Department testified on behalf of the State at the
1
Because two co-defendants share the same surname, we use their
first names to avoid confusion. We intend no disrespect in doing
so.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-0013-16T2
hearing. Defendant did not testify or call any witnesses at the
hearing. The portions of the videotapes regarding the Miranda
warnings defendant received and other aspects of the voluntariness
of his statements were played during the hearing.
In a detailed oral decision rendered on November 4, 2009, the
motion judge noted that the defendant read the Miranda warning
form aloud and signed the form before each statement was given.
The judge found that defendant understood his rights and knowingly
waived them. She further found that defendant never asked to stop
the interviews and never asked for an attorney. The judge also
found that no promises were made to defendant regarding his bail
or seeing his family. When defendant asked for certain assurances
the detectives told him they could not do that. At one point the
detective told defendant: "We can't promise you anything."
The second interview was initiated by defendant's own request
to speak to the investigating detective. Defendant was given
breaks and a cigarette during the interviews. The police did not
intimidate or threaten defendant. For these reasons, the motion
judge held that the statements were given voluntarily and were
admissible at trial.
Defendant was tried separately. Following a five-day trial,
the jury acquitted defendant of conspiracy to commit murder (count
seven) but convicted him of the lesser-included offense of second-
3 A-0013-16T2
degree conspiracy to commit aggravated assault and counts one
through six of the indictment.
The facts underlying defendant's convictions are set forth
in our opinion in his direct appeal. Therefore, we review only
the facts pertinent to the issues raised.
On December 15, 2007, Chaz Mathis helped
Melanie and her husband Dennis move their
apartment furnishings from Trenton into a
storage unit in Ewing, New Jersey. Mathis
transported the couple's belongings in his
van.
Five days later, on December 20, 2007,
Melanie called Mathis and accused him of
stealing a television and a gold chain during
the move. Mathis denied the allegations. Later
that day, Mathis was approached outside his
Trenton boarding house by Smith. Smith
questioned Mathis about the items, and Mathis
again denied the allegations. Mathis invited
Smith to inspect his bedroom for the items,
but Smith said "I believe you" and left.
Following his conversation with Smith,
Mathis went to his second-floor bedroom to
take a nap. About forty-five minutes later,
he heard his name being called and woke up to
see a man in the doorway, holding a gun. Mathis
tried "to roll out of the way," but the gunman
shot him four times.
. . . .
Detective Matthew Kemp of the West
Windsor Township Police Department
investigated the shooting. When Kemp spoke
with Mathis at the hospital, Mathis said he
believed Dennis was involved, and that a
"black male, very big, tall, six foot four,
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[weighing] 300 pounds" was involved. This
matched the description of Smith.
Kemp met with Smith on December 26, 2007.
According to Smith, he only gave Kemp "a
little bit" of information about the incident
at that time. However, when they met a second
time on January 2, 2008, Smith provided Kemp
with a formal statement, which explained what
happened.
On January 17, 2008, Smith was arrested
and charged with attempted murder and other
offenses. The following day, while in custody,
Smith asked to speak with Kemp. During that
meeting, Smith identified defendant as the
shooter. Defendant was arrested on January 23,
2008.
When Kemp interviewed defendant on
January 24, 2008, he confessed to shooting
Mathis and provided the police with a
videotaped statement, which was admitted into
evidence at defendant's trial. In his
statement, defendant confirmed that Smith led
him to Mathis' bedroom. Defendant also
admitted that he pushed open the unlocked door
to Mathis' room, saw Mathis "on the bed," and
"squeezed [the gun] four times."
Neither Dennis nor Melanie testified at
trial. However, Smith testified for the State,
and he made an in-court identification of
defendant as the shooter. . . .
Defendant testified on his own behalf.
On direct examination, defendant denied he was
involved in the shooting. Defendant admitted
he told Kemp he shot Mathis, but defendant
claimed he did so because he "felt it was the
only way [he] was going to get home to [his]
fiancée and kids."
On cross-examination, defendant conceded
he had signed a Miranda form and a waiver of
5 A-0013-16T2
rights prior to his videotaped statement.
Nevertheless, he testified his confession was
a lie[.]
[State v. Shuman, No. A-0859-10 (App. Div.
March 11, 2013) (slip op. at 3-7), certif.
denied, 217 N.J. 52 (2014).]
At sentencing, the court merged counts two, three, and four
into count one and sentenced defendant to a seventeen-and-one-
half-year prison term subject to the eighty-five percent period
of parole ineligibility mandated by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant received concurrent
sentences on counts five and six. Appropriate penalties, fees,
and assessments were also imposed.
On direct appeal, defendant raised the following arguments:
(1) the admission of testimonial hearsay of non-testifying alleged
accomplices violated defendant's constitutional right to
confrontation; (2) the conviction for possession of a weapon for
an unlawful purpose (count five) should have been merged into
count one (attempted murder); and (3) defendant's sentence was
manifestly excessive. Shuman, supra, (slip op. at 3). Notably,
defendant did not argue that the denial of his suppression motion
was error.
We concluded that defendant received a fair trial and an
appropriate sentence. We affirmed the convictions and sentence
but remanded for entry of an amended judgment of conviction merging
6 A-0013-16T2
count five into count one. On March 12, 2013, an amended judgment
of conviction was entered. Defendant's petition for certification
was denied by the Supreme Court on January 14, 2014. State v.
Shuman, 217 N.J. 52 (2014).
Defendant filed a timely pro se PCR petition that was
supplemented with a brief by appointed PCR counsel. Through
counsel, defendant raised the following issues:
POINT I
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO CALL THE DEFENDANT TO TESTIFY AT THE
MIRANDA HEARING AND SUCH FAILURE RESULTED IN
THE ADMISSION OF DEFENDANT'S INCULPATORY
STATEMENT.
POINT II
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO PRESENT AN ALIBI DEFENSE.
POINT III
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO ARGUE THAT MICHAEL SMITH WAS UNABLE
TO IDENTIFY THE DEFENDANT AS THE SHOOTER.
7 A-0013-16T2
POINT IV
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO ARGUE THAT A FAMILY COURT JUDGE
IMPERMISSIBLY ISSUED THE ARREST WARRANT.
Defendant claims that at the time of the shooting he was with
a man named "Orlando" at Orlando's grandmother's house, located
at Randle and Elm Streets in Trenton, New Jersey. He argues that
even though he shared this information with trial counsel, his
counsel was ineffective by failing to investigate this alibi and
present it as a defense at trial.
Defendant did not provide the full name of, or identifying
information for, the alleged alibi witness to his trial counsel
or the PCR court. Nor did he provide the specific facts that an
investigation would have revealed. His PCR application did not
include any affidavits or certifications regarding the alibi from
any alibi witness.
The State submitted a certification of defendant's trial
counsel in opposition to defendant's PCR claims. In his
certification, trial counsel stated: "At one point he briefly
remarked that he was 'probably' at a friend's grandmother's house
at the time of the shooting. He indicated he would get her name
and address. I do not believe I was ever given her name." Trial
8 A-0013-16T2
counsel then stated: "The fact that this could be a weak alibi
was certainly a consideration; however there were other factors
that questioned the value and credibility of the 'alibi[.]'" Those
factors included: (1) defendant's failure to raise the alibi
shortly after arrest; (2) the alibi was not supported by
independent objective evidence; (3) defendant gave a statement
admitting he was present and involved in the shooting incident;
and (4) defendant rarely mentioned his possible presence elsewhere
during conversations with trial counsel. Taking these factors
into account, trial counsel concluded that defendant's unsupported
suggestion that he may have been at someone's residence at the
time of the incident "was not a provable alibi that could have
altered the outcome of the case."
Defendant did not testify at the Miranda hearing. He claims
that he would have testified that he only gave the incriminating
statement to the police because they promised him that he could
go home to his family. The transcripts of the videotaped
statements are devoid of any such promises. Moreover, as noted
by the PCR judge,
the facts surrounding the statements made to
police by the Petitioner do not support his
claim. On January 23, 2008, Detective Kemp
placed the Petitioner under arrest.
Immediately following his arrest, Petitioner
waived his Miranda rights and spoke to the
detective investigating the shooting. The
9 A-0013-16T2
Petitioner stated he had no information
regarding the shooting. On the following day,
January 24, 2008, the Petitioner requested to
speak to Detective Kemp about the shooting.
Detective Kemp did not initiate the second
interview. During the second interview, after
waiving his Miranda rights, the Petitioner
admitted to shooting Mathis at the request of
[Dennis] Merritt and [Melanie] Gerald.
[(citations omitted).]
The PCR was heard by Judge Robert C. Billmeier, who issued a
seventeen-page written decision denying defendant's petition
without conducting an evidentiary hearing. The judge found that
defendant failed to establish a prima facie case of ineffective
assistance of counsel, concluding that: (1) defendant failed to
show that trial counsel's representation fell below an objective
standard of reasonableness; (2) defendant failed to demonstrate a
reasonable probability that, but for trial counsel's alleged
unprofessional errors, the outcome of the trial would have been
different; (3) trial counsel was not ineffective by failing to
argue in summation that Smith did not see defendant actually shoot
the victim; and (4) trial counsel was not ineffective by failing
to argue that a Family Law judge impermissibly issued his arrest
warrant, since that claim was legally baseless. Defendant appeals
from that ruling.
In his present appeal, defendant raises the following
arguments:
10 A-0013-16T2
POINT ONE
A. DEFENDANT SHOULD BE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE HIS TRIAL ATTORNEY
WAS INEFFECTIVE IN FAILING TO PRESENT AN ALIBI
DEFENSE.
B. DEFENDANT SHOULD BE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE HIS TRIAL ATTORNEY
WAS INEFFECTIVE IN FAILING TO CALL HIM TO
TESTIFY AT HIS MIRANDA HEARING.
We affirm substantially for the reasons stated by Judge
Billmeier in his thorough and well-reasoned written decision. We
add only the following comments.
PCR petitioners are not automatically entitled to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div.), certif. denied, 162 N.J. 199 (1999). Rather,
[a] defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
[R. 3:22-10(b).]
To establish a prima facie claim of ineffectiveness of
counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
11 A-0013-16T2
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"A court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusionary or
speculative[.]" R. 3:22-10(d); see State v. Marshall, 148 N.J.
89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d
88 (1997). "Rather, defendant must allege specific facts and
evidence supporting his allegations." State v. Porter, 216 N.J.
343, 355 (2013). As we explained in Cummings:
[I]n order to establish a prima facie claim,
a petitioner must do more than make bald
assertions that he was denied the effective
assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged
substandard performance. Thus, when a
petitioner claims his trial attorney
inadequately investigated his case, he must
assert the facts that an investigation would
have revealed, supported by affidavits or
certifications based upon the personal
knowledge of the affiant or the person making
the certification.
12 A-0013-16T2
[Cummings, supra, 321 N.J. Super. at 170.]
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
Defendant claims that his trial counsel was ineffective by
inadequately investigating his alibi defense and not presenting
it at trial. We disagree.
Rule 3:22-10(c) requires the factual assertions in support
of defendant's alibi defense be made by affidavit or certification
based on personal knowledge in order to secure an evidential
hearing. State v. Jones, 219 N.J. 298, 312 (2014); Porter, supra,
216 N.J. at 355. Defendant did not satisfy this requirement. As
noted by Judge Billmeier, defendant did not provide the full name
of, or identifying information for, the alleged alibi witness. He
did not assert specific facts that an investigation would have
revealed and failed to submit any affidavits or certifications
from any witness attesting to the alibi. Moreover, the alibi is
contradicted by defendant's own statement to the police. This led
trial counsel to conclude that the alibi defense was too weak to
pursue at trial.
"[A]ny claimed errors of counsel must amount to more than
mere tactical strategy." State v. Drisco, 355 N.J. Super. 283,
13 A-0013-16T2
290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003) (citing
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
2065, 80 L. Ed. 2d 674, 694-95 (1984)). A trial counsel's
strategic decision to withhold a weak alibi defense does not
constitute ineffective assistance of counsel. See id. at 290-91
(explaining that a trial counsel's fear that a weak alibi defense
could cause more harm than good is the type of strategic decision
that should not be second guessed on appeal).
For the reasons recounted in his certification, trial counsel
reasonably concluded that defendant's unsupported suggestion that
he may have been at someone's residence at the time of the incident
"was not a provable alibi that could have altered the outcome of
the case." Our review of the record leads us to conclude that the
judge's determination that trial counsel made a strategic decision
not to present the alibi defense was based on substantial credible
evidence in the record. Moreover, defendant has not shown that
there is a reasonable likelihood that the alibi defense would have
been successful if properly investigated and presented at trial.
Defendant also argues that his trial counsel was ineffective
by failing to have him testify at the Miranda hearing, resulting
in the admission of his inculpatory statement in which he confessed
to shooting the victim. Defendant claims he would have testified
14 A-0013-16T2
that he only gave the statement to police because they promised
him he could go home to his family if he did so.
Deciding whether to call defendant as a witness at the Miranda
hearing is one of the most difficult strategic decisions that
trial counsel must confront. See State v. Arthur, 184 N.J. 307,
320 (2005).
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.]
Our review of such decisions is highly deferential. Id. at 321.
In order to prevail on this claim, defendant must show that
the failure to call him as a witness was a serious professional
error, and that had he testified during the hearing the effect
would have been the suppression of the statement and a different
trial outcome. Defendant failed to satisfy either prong.
Defendant has not shown that his testimony at the Miranda
hearing would have resulted in the suppression of his statement
and a different trial outcome. His bare allegation that he
confessed to the police only because he was promised that he would
15 A-0013-16T2
be able to reunite with his family is contradicted by the record.
The decision to not have him testify at the hearing appears to
have been a reasonable, strategic decision made by an experienced
attorney, not a serious professional error.
In summary, we discern no abuse of discretion by the PCR
court. Judge Billmeier correctly concluded that defendant did not
establish a prima facie case of ineffective assistance of counsel
and was not entitled to an evidentiary hearing.
The remaining issues raised by defendant lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
16 A-0013-16T2