STATE OF NEW JERSEY v. QUAMEIR T. WATERS (13-07-0595, 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NOT FOR PUBLICATION WITHOUT THE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-1653-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUAMEIR T. WATERS,
a/k/a COO COO, and
QUAMEIER WATERS,
Defendant-Appellant.
_______________________
Submitted June 9, 2022 — Decided June 24, 2022
Before Judges Mawla and Alvarez.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 13-07-
0595.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson D. Harkov, Designated Counsel,
on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Kaila L. Diodati,
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Quameir T. Waters appeals from a July 15, 2020 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. 1
We affirm.
We previously recounted the facts of defendant's case when we affirmed
his convictions and sentence. State v. Waters, No. A-5382-14 (App. Div. Sept.
21, 2017) (slip op. at 1-4). To summarize, on November 13, 2012, defendant,
Octavis Spence, and others went to a gathering at Anthony and Thomas Nieves'2
apartment. The next morning, Spence and defendant got into a heated argument,
which led to defendant firing two shots at Spence, hitting him once in the back
and paralyzing him from the waist down. Defendant fled and the gun was never
recovered.
Spence identified defendant as the shooter and described the weapon as a
dark, semiautomatic handgun. Anthony also gave police a statement identifying
defendant. Police recovered one bullet lodged in a wall and two empty casings
1
The order is dated July 15, 2020, but it was filed on July 22, 2020.
2
We refer to Anthony by his first name because he shares a surname with
Thomas. We intend no disrespect.
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fired from a semiautomatic weapon. When police arrested defendant, he denied
being at the Nieves' apartment the morning of the shooting claiming he was
fishing; however, he later admitted he was present. Defendant explained he and
Spence were arguing over a woman and conceded he wanted to fight Spence but
denied shooting him. Defendant claimed another man shot the victim but could
not identify or describe him.
In a search, incident to defendant's arrest, police recovered two cell
phones. Pursuant to a warrant, police recovered a text sent by defendant to a
woman named Marianna on November 14, 2012, at 1:01 p.m., stating: "I got
into some deep shit, bae." Police also retrieved roughly 2,000 images from the
phones, including 200 deleted images. One deleted image showed defendant
holding a black handgun pointing at the camera and another showed a
semiautomatic handgun next to a magazine. Police could not determine the
gun's caliber or where the images were taken.
Defendant was indicted on one count of attempted murder, three counts of
aggravated assault, and three weapons charges. Prior to trial, the State made a
plea offer, which it withdrew, but then re-instated. Defense counsel filed various
pre-trial motions, including a motion to reduce bail, which was denied on August
18, 2014. At this appearance, defense counsel argued the victim was "nowhere
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to be found" and Anthony had given police "different stories" about what he saw
the day of the shooting. The State disagreed and argued its case had "got[ten]
stronger" with the passage of time because it had 1) eyewitnesses, including
Spence, who it had no reason to believe would not attend trial, 2) the cell phone
evidence, and 3) defendant's statement. The judge also reviewed the status of
the plea negotiations and the State's plea offer with defendant because the plea
offer was expiring that day.
Under oath, defendant confirmed he understood the magnitude of the
pretrial conference, the finality of the State's plea offer, and that he would be
unable to control the outcome of a jury trial. The following colloquy ensued:
[The court]: All right. Now, according to the
information that has been provided to me here, and a
copy of which . . . you went over with your attorney,
you understand that you are facing a potential life
sentence if you're convicted in this case . . . ?
[Defendant]: Yes.
[The court]: All right. And one of the things I note
here . . . is that you are [subject to] a discretionary
extended term and I've already been informed by the
State that if you are convicted, they will be seeking an
extended term.
[The defendant]: Yes.
[The court]: . . . You should proceed with the
understanding that there is a high likelihood that I
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would issue an extended term if you're convicted. You
understand that?
[The defendant]: Yes.
The judge then asked the State to reiterate its "last, best offer." The State
previously offered defendant an open plea to second-degree aggravated assault,
a cap of ten years' incarceration subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, and no extended term. However, after negotiations with
defendant and defense counsel, "who rather convincingly represented his client's
position, the State removed uncertainty and offered an alternative of eight years[
subject to] NERA . . . . So[,] the offer is either plead open or take a known eight,
NERA, and that is the State's absolute final offer."
The prosecutor explained if the matter were tried and defendant convicted,
the State would seek an extended term because defendant was a persistent
offender due to "previous convictions . . . involv[ing] weapons and assaultive
behavior, not to mention [twenty-three] other arrests, [and] a lengthy rap sheet."
As a result, if defendant were convicted of the attempted murder offense "instead
of ten to [twenty years], he would face a mandatory . . . [twenty-five] to life,"
subject to NERA. "On the second[-]degree . . . [a]ggravated assault, which is
NERA, instead of five to ten, . . . that would be a ten to [twenty.] The weapons
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offenses, instead of being a second[-]degree five to ten, they would be . . . into
the ten to [twenty] range . . . ."
The judge noted if defendant accepted the State's offer, his eight year
NERA sentence "would be a six year, nine month and [twenty-two] day period
of parole ineligibility[,]" further reduced by the nearly two-year time period
defendant spent in jail awaiting trial. If defendant proceeded to trial and was
convicted, the judge calculated his NERA sentence to sixty-three years, nine
months, and three days.
Defendant responded as follows: "No disrespect to you, [y]our [h]onor,
but I don't care." Nonetheless, the judge offered defendant more time to think
about the offer. Defendant responded he wanted to use the time to talk to the
judge and did not need to talk to his lawyer. Defendant then stated
I offered [the prosecutor] . . . .
. . . seven [years subject to NERA]. He said no. Why
not? Why not . . . seven [years subject to NERA]? You
want a[n] eight. I want a seven. You want a conviction.
I want to go home earlier than eight years.
. . . I'm [twenty-nine] years old. I'll be [thirty] this year.
I got kids to go home to, just like you all got kids to go
home to every night.
If he don't want to give me what I want, we go to
trial and I risk losing everything. That's just how I feel.
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Notwithstanding defendant's statement, the judge stepped off the bench to
give him time to consider his position and discuss the matter with counsel.
When the judge returned, eighteen minutes later, defendant told him he wished
to proceed to trial.
The matter was tried before a jury and a different judge. Defendant moved
in limine to bar, among other things, photos of the gun, arguing they were
inadmissible under N.J.R.E. 403 and 404(b). He argued neither Spence nor
Anthony could identify the gun's specifics, and the pictures did not show where
or when they were taken, whether it was the gun used in the shooting, or if it
was a gun at all.
The trial judge held an evidentiary hearing. Cumberland County
Prosecutor's Office Detective Raymond Cavagnaro testified and explained the
process of retrieving the data, including the deleted gun photos from defendant's
cell phones. He said a picture of defendant was taken around November 7, 2012,
at 5:01 p.m. The image of the gun was taken around November 10, 2012, at
2:59 p.m., a photo of the gun and the bullets was taken November 13, 2012, at
5:59 p.m., and a picture of defendant holding the gun was taken around
November 13, 2012, at 7:58 p.m. Defendant sent the text to Marianna around
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November 14, 2012, at 1:01 p.m. The images showing a gun were deleted
around November 14, 2012, at 12:01 a.m.
Defendant argued the images were not evidential because their creation
and deletion took place outside the time frame of the crime. Therefore, they
were inadmissible, as evidence of prior bad acts. The State argued the images
were admissible to establish consciousness of guilt, were contemporaneous with
the crime, and the best evidence of the gun defendant used since one was not
found, considering Spence and Anthony indicated the gun was like the one in
the pictures and the shell casings and projectile found at the scene. The State
noted the images were not prior bad act evidence because gun possession in the
home is legal and they were taken inside a private residence.
The trial judge analyzed the evidence pursuant to the four-prong test
articulated in State v. Cofield, 127 N.J. 328, 338 (1992). He concluded the first
prong was met because the photos of defendant holding a gun were relevant to
whether he used it to commit the offenses. The second prong was met because
the State showed the photos were contemporaneous with the shooting. The third
prong, requiring the evidence be clear and convincing, was proven through
Cavagnaro's testimony authenticating the extraction of the photos from
defendant's phone and when the photos were taken and deleted. The fourth
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Cofield prong was met because the probative value of the photos was not
outweighed by the prejudice because the jury would ultimately determine the
weight accorded to this evidence. The judge denied the motion.
At trial, Spence testified and identified defendant as the shooter and the
type of gun he used. However, Spence could not say whether a gun defendant
was holding in a picture was the same one used to shoot him. Anthony also
testified and identified defendant as the shooter. He was shown pictures of
defendant with a gun and confirmed defendant used a black nine-millimeter
automatic like the one in the pictures. State Police Detective Edward Brita
testified and identified the projectile and casings from the crime scene as coming
from a nine-millimeter semiautomatic gun.
State Police Detective Arthur Barilotti testified he was the lead detective.
He conducted about a dozen interviews, and defendant emerged as the only
suspect. After Barilotti concluded his testimony, defense counsel recalled him
to ask whether he took a statement from defendant in which he denied
involvement in the shooting. Barilotti testified defendant denied shooting
Spence, claiming he was fishing the day of the incident, but then admitted he
was in the apartment and claimed there was another shooter whom he could not
identify. Defendant then told Barilotti he was in the apartment, had a "beef"
A-1653-20
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with and was fighting Spence over a woman. Barilotti testified it is not
uncommon for people to initially lie before telling police what happened.
Following summations, the judge charged the jury, including that it could
consider the deleted photos as consciousness of guilt evidence. We reproduced
the charge in our prior opinion and incorporate it here by reference. See Waters,
slip op. at 15-16. Defendant was convicted on all counts and received an
aggregate fifty-eight-year NERA sentence.
Defendant filed a PCR petition, raising several arguments, including that
pursuant to Lafler v. Cooper, 566 U.S. 156 (2012), the State should give him its
original plea offer, or an opportunity to renegotiate the plea, because trial
counsel was ineffective for failing to advise defendant to take the plea or tell
him the plea would expire. Defendant argued he received ineffective counsel
because trial counsel recalled Barilotti back to the stand and questioned him
regarding his statement to police. He also claimed appellate counsel was
ineffective for not challenging the court's decision to admit the photos.
Defendant sought an evidentiary hearing to explore the disputed facts, including
his communications with trial counsel regarding the plea.
The PCR judge rejected defendant's arguments noting the plea was
discussed on the record, defendant received "several continuances to get the plea
A-1653-20
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offers lowered," and the judge discussed "what the plea offer would be, or what
the potential sentence could be" if defendant was found guilty. The judge noted
even after defendant rejected the plea, the judge gave him additional time "to
talk to his attorney again and . . . [defendant] was aware that the offer would
expire and that his attorney made multiple attempts to get [defendant] to accept
the offer." The PCR judge dismissed defendant's argument as without merit and
found his claims regarding counsel's performance contradicted by the record.
He also rejected the argument appellate counsel was ineffective for not
challenging the trial judge's evidentiary ruling admitting the photos into
evidence.
Defendant raises the following points on appeal:
POINT ONE — THE PCR COURT ERRED WHEN IT
FAILED TO GRANT DEFENDANT'S REQUEST
FOR AN EVIDENTIARY HEARING BECAUSE THE
FAILURE OF TRIAL COUNSEL TO EXPLAIN TO
DEFENDANT THE RISKS AND CONSEQUENCES
OF TAKING THIS CASE TO TRIAL AND
EXPOSING HIMSELF TO A SENTENCE OF LIFE IN
PRISON, AS OPPOSED TO ACCEPTING THE
STATE'S PLEA OFFER OF AN EIGHT YEAR NERA
SENTENCE, COULD ONLY BE EXPLORED IN AN
EVIDENTIARY HEARING IN THE ABSENCE OF
ANY STATEMENT BY TRIAL COUNSEL TO
DEFENDANT ON THE RECORD THAT HE
ADVISED DEFENDANT TO ACCEPT THE PLEA
OFFER AND THAT SAID PLEA OFFER WOULD
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NO LONGER BE AVAILABLE AFTER THE
PRETRIAL CONFERENCE.
POINT TWO — THE FAILURE OF TRIAL
COUNSEL TO ADVISE DEFENDANT TO ACCEPT
THE STATE'S PLEA OFFER OF AN EIGHT YEAR
NERA SENTENCE CAME AS A DIRECT RESULT
OF HIS DERELICTION OF HIS DUTY TO EXPLAIN
THE RISK AND CONSEQUENCES OF GOING TO
TRIAL AND THE EXTENT AND IMPACT OF THE
EVIDENCE AGAINST DEFENDANT, RESULTING
IN DEFENDANT BEING SENTENCE[D] TO FIFTY-
EIGHT YEARS IN PRISON, THUS DEPRIVING
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT THREE — THE DECISION BY TRIAL
COUNSEL TO CALL THE LEAD DETECTIVE AS A
DEFENSE WITNESS KNOWING THIS WOULD
OPEN THE DOOR TO THE STATE HAVING THE
DETECTIVE INFORM THE JURY DEFENDANT
INITIALLY LIED TO THE POLICE ABOUT HIS
WHEREABOUTS AT THE TIME OF THE
SHOOTING, LATER ADMITTED TO BEING
PRESENT WHEN THE SHOOTING OCCURRED,
AND ARGUED WITH THE VICTIM BEFOREHAND,
WAS SO ASTONISHINGLY MISINFORMED AS TO
CONSTITUTE INEFFECTIVE ASSISTANCE OF
COUNSEL IN AND OF ITSELF.
POINT FOUR — THE FAILURE OF APPELLATE
COUNSEL TO CHALLENGE ON DIRECT APPEAL
THE TRIAL COURT'S ADMISSION OF PHOTO[]S
EXTRACTED FROM DEFENDANT'S CELL PHONE,
ALLEGEDLY DEPICTING HIM HOLDING A GUN
AT LEAST ONE DAY PRIOR TO THE INCIDENT
THAT LED TO THE VICTIM'S SHOOTING, BY
ARGUING THEIR ADMISSION VIOLATED
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N.J.R.E. [404(b)], DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
In his pro se brief, defendant argues: 3
POINT ONE — DEFENDANT . . . WAS DEPRIVED
OF DUE PROCESS AND OF A FAIR TRIAL WHERE
DEFENDANT WOULD SHOW THAT THE VICTIM
HAD PROVIDED FALSE TESTIMONY AGAINST
DEFENDANT. DEFENDANT WILL SHOW THAT
THERE IS EVIDENCE OF THE RECORD OF THIRD
PARTY GUILT.
POINT TWO — . . . DEFENDANT . . . MOVES
BEFORE THIS COURT TO PRESENT NEWLY
PRESENTED EVIDENCE THAT WAS
PREVIOUSLY UNAVAILABLE TO DEFENDANT.
I.
We review a judge's denial of PCR without an evidentiary hearing de
novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). To succeed
on a claim for ineffective assistance of counsel, a defendant must establish both
prongs of the Strickland v. Washington4 test. State v. Parker, 212 N.J. 269, 279-
80 (2012). Under the first prong, counsel's representation must be objectively
unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second
3
We granted defendant's motion to file a pro se supplemental brief and a pro se
reply brief after the initial briefing schedule elapsed.
4
466 U.S. 668, 687 (1984).
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prong, a "reasonable probability [must exist] that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 583 (quoting Strickland, 466 U.S. at 694).
In reviewing ineffective assistance of counsel claims, we apply a strong
presumption that defense counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'
will not serve to ground a constitutional claim of inadequacy of representation
by counsel." State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams,
39 N.J. 471, 489 (1963)); see also State v. Nash, 212 N.J. 518, 543 (2013) ("The
test is not whether defense counsel could have done better, but whether he [or
she] met the constitutional threshold for effectiveness.").
The standard of review for assessing ineffective assistance of appellate
counsel is the same Strickland two-prong test. State v. Gaither, 396 N.J. Super.
508, 513 (App. Div. 2007). Appellate counsel is not required to bring all non-
frivolous claims or claims that are "legally unworthy of pursuit." State v.
Webster, 187 N.J. 254, 256 (2006).
We reject the arguments raised by defendant in points one and two of his
brief related to the need for an evidentiary hearing to explore what plea advice
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counsel gave defendant for the same reasons expressed by the PCR judge. These
arguments lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
In point three, defendant argues trial counsel was ineffective for recalling
Barilotti, who testified defendant provided police with a false alibi before
admitting he was in the apartment and in an altercation with Spence. Defendant
claims this error "compounded the mistake" of going to trial and further
demonstrates how counsel's performance prejudiced the outcome.
Trial strategy is a matter left to the discretion of competent trial counsel.
State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div. 1983). Informed strategic
choices "are virtually unchallengeable[.]" Strickland, 466 U.S. at 690. Strategic
choices made after limited investigation are given great deference and assessed
for reasonableness. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002).
"[S]trategic 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.'" State v. Castagna, 187 N.J. 293, 315
(2006) (second alteration in original) (quoting State v. Buonadonna, 122 N.J.
22, 42 (1991)).
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The fact that a strategy fails does not amount to ineffective assistance of
counsel. State v. Bey, 161 N.J. 233, 251 (1999). "[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[.]'" State v. Arthur, 184
N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 689, 693).
Counsel's decision to recall Barilotti was to bolster the claim that
defendant told Barilotti there were other people present in the apartment at the
time of the shooting. Counsel's strategy was not thoughtless because, in both
the defense's opening and summation, trial counsel told the jury Barilotti knew
other people were in the apartment but failed to investigate who these people
were. Pursuant to our de novo review, and given the deference owed to trial
counsel's strategic decision making, we discern no reversible error.
Finally, we affirm the evidentiary decisions made by a trial court if they
are supported by sufficient, credible evidence in the record and are not clearly
mistaken. State v. Hathaway, 222 N.J. 453, 467 (2015). We cannot conclude
appellate counsel was ineffective for failing to challenge the photographic
evidence adduced at trial. The trial judge's careful analysis of the Cofield factors
before admitting the photo evidence was not clearly mistaken and would be
entitled to our deference had it been raised on the direct appeal. Further, we
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previously held the jury was properly instructed that the photo evidence was
limited to the consciousness of guilt. Waters, slip op. at 18. Given this, and the
other evidence implicating defendant, including his statements, the text
message, and eyewitness testimony, we are unconvinced appellate counsel's
decision not to challenge the photo evidence constituted ineffective assistance.
Appellate counsel was not obliged to make arguments that lacked merit.
Webster, 187 N.J. at 256-57.
To the extent we have not addressed an argument raised by defendant it is
because it lacks sufficient merit to warrant discussion in a written opinion. See
R. 2:11-3(e)(2).
Affirmed.
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