STATE OF NEW JERSEY v. MARVIN SHERWOOD (10-11-2711, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3212-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN SHERWOOD,
Defendant-Appellant.
___________________________
Submitted June 7, 2022 – Decided August 9, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 10-11-2711.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira R. Scurato, Designated Counsel, on
the brief).
William Reynolds, Acting Atlantic County Prosecutor,
attorney for respondent (Alyssa M. Gilboy, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Marvin Sherwood appeals from a Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Before us, he presents the following arguments:
POINT I
THE PCR 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
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM COUNSEL.
A. Counsel was Ineffective for Failing to
Request an Accomplice Liability Charge.
B. Counsel was Ineffective for Failing to File a
Motion to Suppress and for Failing to Object to
Numerous Trial Errors.
POINT II
THE PCR JUDGE ERRED IN FINDING THAT THIS
PETITION FOR POST-CONVICTION RELIEF WAS
TIME BARRED.
Having reviewed the record considering the applicable legal standards, we are
unpersuaded by defendant's arguments and affirm substantially for the reasons
set forth by the PCR judge in her written decision.
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I
The procedural history and trial evidence are detailed in our unpublished
decision affirming defendant's conviction and sentence on direct appeal, State
v. Sherwood, No. A-3097-12 (App. Div. Dec. 16, 2015), and in the PCR judge's
written decision issued April 13, 2021. A brief summary of the relevant facts
and proceedings will suffice here.
In the early morning hours of August 3, 2010, a male assailant entered the
Atlantic County home of an eighty-nine-year-old woman, who lived alone. The
assailant sexually assaulted the victim twice; threatened to kill her with a knife;
and stole her cell phone, jewelry, and wallet. Before leaving the house, the
assailant attempted to clean the evidence of his crimes. However, the ensuing
police investigation discovered DNA evidence in the victim's home and on
objects––including a knife––found in a trashcan a few blocks from the victim's
home linking defendant as the assailant. Following his arrest and after being
given Miranda1 warnings, defendant gave a statement admitting that he entered
the victim's home but did so only with the intent to commit a theft. He claimed
he was accompanied by an Atlantic City man he identified only as "Streets," but
left him at the victim's house when Streets became violent with her. He stated
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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he did not witness any sexual assaults. Defendant's trial testimony differed
from his statement. He told the jury that he did not witness any physical violence
against the victim. He also testified that Streets wielded the knife to frighten
the victim, and defendant accidentally cut his hand on the knife.
The State presented evidence that Justin Street, the man defendant
identified in a photograph as his accomplice, lived in Essex County and was five
feet, five inches tall, significantly shorter than the man the victim described as
her lone six-foot-tall attacker. Also contradicting defendant's claim of a second
assailant, the State's expert opined that the only footprints police found at the
scene matched defendant's shoes, and a police canine found the scent of only
one person leading away from the victim's house. Despite the State's evidence,
the trial judge granted defendant's request and instructed the jury regarding
third-party guilt––the claim that Streets attacked and sexually assaulted the
victim. An accomplice liability charge was not requested by either party.
The jury rejected defendant's defense, finding him guilty of all fifteen
charges: second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree
bodily injury burglary, N.J.S.A. 2C:18-2; first-degree armed robbery, N.J.S.A.
2C:15-1; first-degree aggravated sexual assault during a burglary, N.J.S.A.
2C:14-2(a); first-degree aggravated sexual assault with a weapon, N.J.S.A.
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2C:14-2(a); first-degree aggravated sexual assault of a physically helpless
person, N.J.S.A. 2C:14-2(a); second-degree attempt to commit sexual
penetration, N.J.S.A. 2C:5-1 and 2C:14-2(a); second-degree attempt to commit
sexual penetration while armed, N.J.S.A. 2C:5-1 and 2C:14-2(a); second-degree
attempt to commit sexual penetration of a physically helpless person, N.J.S.A.
2C:5-1 and 2C:14-2(a); third-degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2); third-degree significant bodily injury aggravated
assault, N.J.S.A. 2C:12-1(b)(7); third-degree terroristic threat, N.J.S.A.
2C:12-3(b); fourth-degree tampering with physical evidence, N.J.S.A.
2C:28-6(1); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A.
2C:39-5(d); and third-degree possession of a weapon, a knife, for an unlawful
purpose, N.J.S.A. 2C:39-4(d). Upon defendant's waiver of a jury, the court
found defendant guilty of fourth-degree possession of a weapon by a convicted
person, N.J.S.A. 2C:39-7.
On September 27, 2012, defendant's judgment of conviction was entered
sentencing him to an aggregate sentence of fifty-seven years with forty-two-and-
a-half-years of parole ineligibility pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2, and requiring his compliance with Megan's Law, N.J.S.A.
2C:7-2, and parole supervision for life.
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On defendant's direct appeal, we "reject[ed] [his] argument that it was
plain error [by the trial court] not to deliver, sua sponte, an accomplice liability
[jury] instruction." Sherwood, slip op. at 16. As for defendant's challenge to
his sentence, we "discern[ed] no error in the court's decision to impose
consecutive sentences," nor was there "error in the court's imposition of
maximum terms for the most serious crimes of which defendant was convicted."
Id. at 19.
After our Supreme Court denied defendant's petition for certification,
State v. Sherwood, 230 N.J. 527 (2017), defendant filed a pro se PCR petition
on December 18, 2017. PCR counsel was subsequently appointed to represent
defendant. The petition contended trial counsel was ineffective because:
(1) she failed to seek an accomplice liability charge; (2)
. . . seek suppression of the knife based on chain of
custody; (3) . . . object to the presentation of the
footprint expert's qualifications; (4) . . . object to the
State's use of Power Point presentations [that included
the word "GUILTY" during the State's summation]; and
(5) . . . ask the court to voir dire or excuse a crying juror.
After hearing argument, the PCR judge issued a written decision denying
defendant's petition without an evidentiary hearing and memorialized his ruling
in a confirming order. Despite acknowledging that based on the five-year
limitation period to file a PCR petition under Rule 3:22-12(a)(1), and finding
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defendant's filing was about three months late, the PCR judge determined it was
appropriate to relax the application of the rule pursuant to Rule 1:1-2 based on
the interests of justice. Applying the well-recognized two-prong test to establish
ineffectiveness of counsel, Strickland v. Washington, 466 U.S. 668, 687 (1984)
and State v. Fritz, 105 N.J. 42, 58 (1987), the judge found that none of
defendant's evidence established a prima facie case of ineffective assistance of
counsel.
In this appeal, defendant renews the same ineffective assistance claims
raised before the PCR judge, contending she erred in denying him relief. We
address these contentions in turn.
Accomplice Liability Jury Charge
Contrary to defendant's contention, there was no clear error capable of
producing an unjust result when counsel did not request an accomplice liability
charge. Under Rule 3:22-5, PCR claims that are "identical or substantially
equivalent" to claims addressed on direct appeal, are procedurally barred. State
v. Marshall, 173 N.J. 343, 351 (2002); see also State v. Goodwin 173 N.J. 583,
593 (2002) ("defendant may not employ post-conviction relief . . . to relitigate
a claim already decided on the merits . . . .").
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On direct appeal, we held that an accomplice liability charge was
unwarranted given "the utter lack of evidence that there was a second
participant," thus "the omission of the charge was harmless beyond a reasonable
doubt." Sherwood, slip op. at 15. In addition, we pointed out "the court's
third-party guilt charge acknowledged that 'evidence has been introduced that a
person other than the defendant committed the crimes charged'" and "[t]he court
instructed the jurors that if they had reasonable doubt that defendant committed
the crimes charged, they should find him not guilty." Id. at 16. Hence, the PCR
judge correctly determined this court's direct appeal ruling regarding the lack of
an accomplice liability charge dictates that the contention in defendant's petition
is procedurally barred.
Suppression of the Knife Based on Chain of Custody
There is no dispute that counsel did not formally move to suppress the
knife. However, the trial court held a Rule 104 hearing regarding the chain of
custody for the knife and determined the knife was admissible trial evidence.
The judge noted that counsel attempted to prevent evidence relating to the knife,
along with other evidence, once she received the police report just prior to trial.
Counsel objected to the report as "'attempting to tie up loose ends' with regard
to the chain of custody and asserted the State's last production of discovery
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'extremely prejudice[d]' [defendant]." Thus, the PCR judge correctly reasoned,
"the relief sought by trial counsel—preclusion of the evidence from the State's
case—was the functional equivalent." Moreover, given the other overwhelming
evidence against him, defendant has not shown that a different outcome would
have occurred had the knife been excluded as evidence.
Objection to the Footprint Expert's Qualifications
Defendant argues that trial counsel's failure to object to the qualification
of the State's witness "as an expert in 'forensics and other matters' permitted the
State to improperly 'bolster the credibility of the witness with irrelevant
expertise.'" We disagree.
The record shows that trial counsel not only objected to the State's expert
but also to the footprint analysis offered by the witness by attempting to suppress
the analysis due to the State's late production of the opinion. The trial court
rejected the contention because the State's decision to present the expert was to
rebut defendant's claim that it was Streets who physically and sexually
brutalized the victim. The court permitted the expert to testify in his " field of
forensic science and criminalistics with respect to footprint analysis."
We discern no reason to upset the PCR judge's finding that because the
expert's testimony was restricted to his training and experience involving
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footprint identification qualifications, he was competent to testify and there was
no showing that defendant was prejudiced by counsel's decision not to object to
the expert's qualifications.
Thus, the PCR judge did not find that trial counsel's position on the
expert's qualifications "failed to meet the standard of 'reasonable competence,'"
nor could the judge find that defendant "was prejudiced by trial counsel's
performance in this regard." We agree with the judge.
Object to the State's "Guilty" PowerPoint Presentation
Defendant contends trial counsel was ineffective for failing to review the
PowerPoint presentation used by the State in its summation and failing to object
"to the final slide, which repeatedly 'flashed the word GUILTY . . . in large white
letters.'" Citing State v. Rivera, 437 N.J. Super 434 (App. Div. 2014), defendant
maintains this was improper because it was a nonevidential personal opinion of
the prosecutor meant to "inflame the jury." We disagree.
First, as the PCR judge recognized, our Supreme Court "declined to adopt
a rule requiring the State to provide criminal defendants with copies of its
PowerPoint presentations before openings and closings." State v. Williams, 244
N.J. 592, 616-17 (2021). Second, the judge found that because the word
"GUILTY" in the presentation reflected the State's position based upon its view
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of the evidence, it did not have an improper prejudicial effect on the jury.
According to the judge, the PowerPoint presentation was no different than the
prosecutor verbally stating in summation the defendant was "guilty." We
conclude her analysis was sound and there is no basis to disturb the judge's
finding.
Object to Voir Dire or Excuse a Crying Juror
Defendant contends trial counsel was ineffective for her failure to ask the
trial court to question the juror counsel believed was upset and cried during the
State's opening statements. We agree with the PCR judge that defendant failed
to show counsel was ineffective because the record clearly shows that counsel
expressed her concern about the juror to the trial court. Neither the trial court
nor the State saw the juror cry. After hearing the State's objection to questioning
the juror, the trial court decided not to do so at the time but stated he would
revisit the situation if the juror appeared to be distraught. Apparently. there was
no further concerns because neither the court nor the parties observed any juror
becoming emotional thereafter. The PCR judge further noted that defendant
failed to demonstrate any prejudice caused by counsel's action or inaction.
There is no basis to disturb the judge's finding.
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Because defendant failed to set forth a prima facie case of ineffective
assistance of counsel, he was not entitled to an evidentiary hearing. See State
v. Preciose, 129 N.J. 451, 462 (1992).
To the extent we have not discussed any other arguments raised by
defendants lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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