STATE OF NEW JERSEY VS. JAWORSKI SNEED (11-10-1910, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0638-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAWORSKI SNEED, a/k/a
JAWORSKI SNEET,
Defendant-Appellant.
_________________________
Submitted December 14, 2020 – Decided December 29, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-10-1910.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a June 28, 2018 order denying his petition for
post-conviction relief (PCR). Defendant argues that his trial counsel rendered
ineffective assistance by failing to call alibi witnesses, and that he established
his prima facie claim for PCR, therefore entitling him to an evidentiary hearing.
We agree, reverse, and remand for further proceedings consistent with this
opinion.
A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-
3(a)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);1
and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4. A judge sentenced defendant to a life term pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. We upheld the convictions and
remanded for resentencing, State v. Sneed, No. A-5865-12 (App. Div. Aug. 5,
2016), and the Supreme Court denied certification. State v. Sneed, 228 N.J. 239(2016). A judge resentenced defendant to a thirty-years' prison term with a
thirty-years' period of parole ineligibility. Thereafter, the PCR judge entered
the order under review.
1
The second-degree unlawful possession of a weapon charge was later merged
into first-degree murder charge.
A-0638-18T4
2
On appeal, defendant raises the following argument for this court's
consideration:
POINT I
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
INVESTIGATE AND PRESENT AN ALIBI
WITNESS.
In his pro se brief, defendant raises the following arguments for this
court's consideration, which we have renumbered:
[POINT II]
Since [defendant] presented a prima facie claim that
defense counsel was ineffective in failing to present his
alibi witness, such deficiency required an evidentiary
hearing to be conducted; as such, the PCR [judge]
abused [her] discretion in acting as a "thirteenth juror"
by concluding that defense counsel's conduct was
"strategic[.]"
A. Standard of Review[.]
B. The PCR [Judge] Abused [Her] Discretion [i]n
Concluding [i]t [w]as [a] "Strategic" Decision
[i]n Refusing Brittany Toliver's Alibi Witness
Testimony[.]
C. The PCR [Judge] Abused [Her] Discretion [i]n
Concluding [i]t [w]as [a] "Strategic" Decision
[i]n Refusing Jimmie Nickerson and Willie
Toliver's Alibi Witness Testimony[.]
A-0638-18T4
3
We incorporate the facts as set forth in State v. Sneed, A-5865-12 (App
Div. Aug. 5, 2016). At trial, defendant's trial counsel argued that defendant
could not have been the shooter because he was not present at the time of the
shooting, however trial counsel did not produce witnesses to support defendant's
alibi. The State called multiple eyewitnesses who identified defendant as the
shooter. S.L. testified that she did not see the shooter's face and stated that she
assumed that defendant was the shooter because he was always with J.N. and
W.T. R.H. told the police that the shooter was wearing a mask, which would
have made a proper identification difficult. W.P. told the police that he could
not see the shooter's face because he "had a hoodie and . . . dreadlocks . . .
covering his face." J.Y. testified that the shooter was not defendant based on
her knowledge of his clothing.
In support of his PCR petition, defendant certified that he was "in the
apartment of [B.T.] . . . using her bathroom when the shooting occurred." B.T.
confirmed this, certifying that defendant "could not have committed this crime
because he was in [her] apartment at the time this crime took place," and
although she told defendant's trial counsel that she wanted to testify and waited
outside the courtroom to be called as an alibi witness, defendant's trial counsel
informed her that her testimony would not be needed. J.N., who was present at
A-0638-18T4
4
the shooting, certified that defendant "was not at the crime scene when the
victim was shot and killed[.]" Defendant's mother, C.S., certified that when
defendant left her house that day to visit his girlfriend, he was wearing different
clothing than the clothing the State's eyewitnesses described the shooter as
wearing.
Without conducting an evidentiary hearing, the PCR judge rejected each
alibi certification defendant provided as "incredible," and specifically noted that
B.T. and J.N.'s certifications were "questionable." As to all the alibi witnesses,
the PCR judge found that defendant's witnesses were "lacking, at times
incredible," and would not have changed the outcome of defendant's trial
because of "the evidence presented at trial." She found J.N.'s certification
"questionable" because "five years after [defendant's] conviction he [came]
forward and [indicated] that the defendant was not there." The PCR judge
assessed the credibility of the affiants as she believed they would have likely
been viewed alongside the witnesses at trial. She found that "the credibility of
[B.T.'s] testimony would've significantly been outweighed by the other four
witnesses." The PCR judge concluded that the proposed testimony was
"significantly vague, bias[ed]" and "incredible."
A-0638-18T4
5
The PCR judge also found that trial counsel's failure to call alibi witnesses
was reasonable trial strategy. She specifically found trial counsel's failure to
call C.S. was reasonable trial strategy because "there [was] a good reason to
question the witness's credibility[.]" She also found that because J.N. was
initially on the State's witness list, it was "reasonable [for defendant's trial
counsel] to infer that he would've had a proffer based on the reports and the
evidence that existed as to what [J.N.] and [W.T.'s] involvement was at the time
and the information that they would have." The State did not call J.N. as a
witness during trial.
When a PCR court does not hold an evidentiary hearing, this court's
standard of review is de novo as to both the factual inferences drawn by the PCR
judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016).
Although not required, "Rule 3:22-10 recognizes judicial discretion to
conduct [evidentiary] hearings." State v. Preciose, 129 N.J. 451, 462 (1992).
"A defendant's claim of ineffective assistance of trial and appellate counsel is
more likely to require an evidentiary hearing because the facts often lie outside
the trial record and because the attorney's testimony may be required." Ibid.A-0638-18T4
6
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. The defendant must rebut the "strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance[.]" Id. at 689. Thus, this court must consider whether
counsel's performance fell below an object standard of reasonableness. Id. at
688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "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
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
A-0638-18T4
7
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58.
A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
Preciose, 129 N.J. at 463). A defendant must "do more than make bald
assertions that he was denied the effective assistance of counsel" to establish a
prima facie claim entitling him to an evidentiary hearing. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the burden of
establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350 (2012). We
"view the facts in the light most favorable to a defendant to determine whether
a defendant has established a prima facie claim." Preciose, 129 N.J. at 463-64.
Our Supreme Court has noted that "[d]etermining which witnesses to call
to the stand is one of the most difficult strategic decisions any trial attorney must
confront." State v. Arthur, 184 N.J. 307, 320 (2005). "[L]ike 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.'" Id. at 321 (quoting Strickland, 466 U.S. at 693).
A-0638-18T4
8
"[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." State v.
Chew, 179 N.J. 186, 217 (2004) (alteration in original) (quoting Strickland, 466
U.S. at 691). However, counsel's "[f]ailure to investigate an alibi defense is a
serious deficiency that can result in the reversal of a conviction. Indeed, 'few
defenses have greater potential for creating reasonable doubt as to a defendant's
guilt in the minds of the jury [than an alibi].'" State v. Porter, 216 N.J. 343, 353
(2013) (second alteration in original) (quoting State v. Mitchell, 149 N.J. Super.
259, 262 (App. Div. 1977)). Counsel's decision to "forego evidence that could
have reinforced [an] alibi" may "[fall] below the objective standard of
reasonableness guaranteed by the United States and New Jersey constitutions."
State v. Pierre, 223 N.J. 560, 583 (2015). So long as an alibi witness could
bolster the defense or refute the State's position if believed by the jury, the
testimony of an alibi witness need not be without credibility issues. Id. at 586-
88. If the testimony of a witness who was not presented at trial or properly
investigated by counsel could have had a reasonable probability of altering the
outcome of the trial, a court should find that "counsel's errors were sufficiently
serious so as to undermine confidence that defendant's trial was fair, and that
the jury properly convicted him." Id. at 588.
A-0638-18T4
9
The testimony of a defendant's alibi witness that is supported by a
witness's affidavit or certification should not be dismissed as not credible
without an evidentiary hearing to make a proper credibility determination. See
State v. Jones, 219 N.J. 298, 314 (2014) (noting that "[a]lthough the timing and
motivation of [the alibi witness's] statement and [their] reason for not voluntarily
appearing to testify as apparently had been expected raise important questions,
those questions cannot be assessed and resolved without determining
credibility"); Porter, 216 N.J. at 356 (noting that "[t]he court's findings regarding
defendant's and his girlfriend's credibility, based only on their affidavits, was an
improper approach to deciding this PCR claim and effectively denied defendant
an opportunity to establish ineffective assistance of trial counsel"). Even when
a defendant's witness's affidavit or certification appears "suspicious or
questionable," they "'must be tested for credibility and cannot be summarily
rejected.'" Porter, 216 N.J. at 355 (quoting State v. Allen, 398 N.J. Super. 247,
258 (App. Div. 2008)). "Assessments of credibility [are] the kind of
determinations 'best made through an evidentiary proceeding with all its
explorative benefits, including the truth-revealing power which the opportunity
to cross-examine bestows.'" Id. at 347 (quoting State v. Pyatt, 316 N.J. Super.
46, 51 (App. Div. 1998)).
A-0638-18T4
10
Viewing the facts in the light most favorable to the defendant, defendant
has established a prima facie claim of ineffective assistance of counsel.
Defendant's alibi was that he was not present at the time of the shooting.
However, defendant's trial counsel failed to call witnesses that would have
corroborated defendant's alibi, and therefore fell below the objective standard
of reasonableness. See Pierre, 223 N.J. at 583 (noting that counsel's choice to
forego evidence that could have bolstered an alibi defense "fell below the
objective standard of reasonableness" and met the first prong of
Strickland/Fritz). Defendant's trial counsel called no witnesses of his own to
support defendant's alibi defense, even knowing that B.T. was ready and willing
to testify on defendant's behalf. Additionally, defendant's alibi defense carried
a "reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 694.
Establishing defendant's alibi that he was not present at the time of the shooting
through B.T., J.N., and C.S.'s testimony could reasonably have affected the
outcome of the trial. Therefore, defendant has met both prongs of
Strickland/Fritz.
Therefore, the PCR judge should have conducted an evidentiary hearing
to resolve credibility issues relating to defendant's alibi witnesses. The PCR
A-0638-18T4
11
judge made credibility determinations as to defendant's alibi witnesses based
solely on the certifications and speculated that some may be biased. But "the
proper way to determine [an alibi witness's] veracity [is] to assess [their]
testimony on direct and cross-examination." Porter, 216 N.J. at 356.
In fairness to the PCR judge, since she previously made credibility
findings, we direct that the evidentiary hearing be conducted by a different
judge. See State v. Gomez, 341 N.J. Super. 560, 579 (App. Div. 2001)
(reversing and remanding with instructions to assign a different trial judge "who
[would] be unfettered by comments on the record which could be interpreted as
an advance evidential ruling on admissibility").
Reversed and remanded. We do not retain jurisdiction.
A-0638-18T4
12