STATE OF NEW JERSEY VS. VIRGIL SUGGS (13-03-0524 AND 13-03-0525, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0474-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VIRGIL SUGGS, a/k/a
MALIK SUGGS, and
MALIK HINTON,
Defendant-Appellant.
________________________
Submitted October 15, 2020 – Decided January 6, 2021
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 13-03-0524
and 13-03-0525.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Virgil Suggs, appeals from the August 25, 2018, denial of his
petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2),
and related charges, for shooting multiple passengers stopped in a vehicle. He
received a sentence of life in prison. After reviewing the record, we reverse and
remand for an evidentiary hearing.
The underlying facts supporting defendant's convictions are outlined in
our opinion on his direct appeal, which affirmed his conviction, and need not be
fully repeated here. 1 A subsequent petition for certification to our Supreme
Court was also denied. 2 However, we highlight the relevant procedural and
factual history for the issues raised in this appeal.
On October 1, 2012, at 11:00 p.m., a man fired shots into a vehicle stopped
at a traffic light in Newark, striking two passengers, while Sirmeerah Bunion-
Clemmons and Philip Smith were in the car. At the hospital, one of the
passengers later died. In the early hours of October 2, 2012, Philip Smith and
1
State v. Suggs, No. A-0073-14 (App. Div. Sept. 20, 2016).
2
State v. Suggs, 228 N.J. 478 (2017).
A-0474-18T3
2
Bunion-Clemmons were taken to the police station to give statements regarding
the incident. Smith and Bunion-Clemmons, separately, identified the photo of
defendant as that of the shooter. Defendant was later charged with the shooting
and a jury trial found he was guilty on all counts. He was sentenced to life
imprisonment on July 31, 2014.
On February 21, 2017, defendant, pro se, filed a petition for PCR asserting
he was afforded inadequate time to meet with counsel given the seriousness of
the charges; his trial counsel failed to properly communicate with him during
jury selection and did not dismiss jurors defendant requested, which affected the
guilty verdict; his motion to relieve trial counsel was ignored; when he
suggested questioning two of the witnesses about a relationship, his attorney
failed to do so; and his attorney should have found a State witness 's bias and
prejudice before trial.
After PCR counsel was assigned, a supplemental brief in support of PCR
was filed in June 2018. Oral arguments for the PCR petition were held on July
27, 2018. The PCR judge, in a written decision, denied the petition, without an
evidentiary hearing, on August 25, 2018. This appeal followed. Defendant filed
a motion to supplement the record, which we granted on January 17, 2020.
Defendant raises the following issues in appealing the PCR denial:
A-0474-18T3
3
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
TRIAL COUNSEL'S FAILURE TO CONDUCT AN
INVESTIGATION OF THREE STATE WITNESSES,
WHO WERE ALL INVOLVED IN VARIOUS
UNETHICAL BEHAVIORS, WHICH WOULD HAVE
WEAKENED THEIR CREDIBILITY AT TRIAL.
POINT TWO
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO DISCLOSE TO MR.
SUGGS THAT HE WAS FRIENDS WITH VICTIM
PHILIP SMITH.
In short, "[PCR] is New Jersey's analogue to the federal writ of habeas
corpus." State v. Preciose, 129 N.J. 451, 459, 609 A.2d 1280 (1992). Pursuant
to Rule 3:22-2(a), a criminal defendant is entitled to PCR if there was a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey."
In order to prove ineffective assistance of counsel, it must be
demonstrated that counsel's handling of the case "fell below an objective
standard of reasonableness" and that "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
A-0474-18T3
4
Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
State v. Fritz, 105 N.J. 42, 52 (1987) (adopting the Strickland two-part test in
New Jersey). Moreover, defendant must prove counsel's "deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice is established
by showing a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694.
Furthermore, the mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Rather, trial courts should grant evidentiary hearings and
decide on the merits only if the defendant has presented a prima facie claim of
ineffective assistance, material issues of disputed facts are outside the record,
and resolution of the issues necessitates a hearing. R. 3:22-10(b); see State v.
Porter, 216 N.J. 343, 355 (2013).
When a PCR petitioner contends that trial counsel was ineffective, he or
she "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." Porter, 216 N.J. at 353 (quoting
Cummings, 321 N.J. Super. at 170). "Even a suspicious or questionable affidavit
supporting a PCR petition 'must be tested for credibility and cannot be
A-0474-18T3
5
summarily rejected.'" Id. at 355 (quoting State v. Allen, 398 N.J. Super. 247,
258 (App. Div. 2008)).
The PCR court must consider the facts in a light favorable to defendant in
determining whether to grant an evidentiary hearing. Preciose, 129 N.J. at 462-
63. We apply an abuse of discretion standard to a trial court's decision regarding
an evidentiary PCR hearing. State v. Brewster, 429 N.J. Super. 387, 401 (App.
Div. 2013). Based on these principles, with the newly discovered evidence, we
conclude defendant was entitled to an evidentiary hearing. As our Supreme
Court stated in Porter:
Certain factual questions, "including those relating to
the nature and content of off-the-record conferences
between defendant and [the] trial attorney," are critical
to claims of ineffective assistance of counsel and can
"only be resolved by meticulous analysis and weighing
of factual allegations, including assessments of
credibility." These determinations are "best made"
through an evidentiary hearing.
[Porter, 216 N.J. at 355 (quoting State v. Pyatt, 316 N.J.
Super. 46, 51 (App. Div. 1998)).]
In his first argument, defendant offers three instances of trial counsel's
"failure to conduct an investigation" into the State's witnesses. We reject the
argument that counsel failed to investigate the State's ballistic expert's
problematic social media account and did not notice he knew one of the
A-0474-18T3
6
witnesses. Our concern focuses on an alleged extramarital relationship, which
would have allowed defendant to cast doubt on the prosecution's case if properly
investigated.
Defendant contends that trial counsel failed to properly investigate his
case and, as such, defendant did not receive effective legal counsel during trial.
Defendant argues that trial counsel failed to properly investigate the credibility
of witnesses Bunion-Clemmons, Smith, and Detective Laterza. He asserts an
investigation into these witnesses would have revealed information with which
they could have been impeached with at trial.
Regarding Detective Laterza, the State's ballistics expert, a series of
prejudicial tweets on social media were discovered and brought to the attention
of a United States District Judge for the District of New Jersey, by the United
States Attorney's Office in Newark. The PCR judge found defendant's claim
without merit because "[a]t the time of the investigation and subsequent trial in
2014," Laterza "did not have the capacity to prejudice [defendant] or influence
[the] jury's verdict." Detective Laterza's tweets became problematic in 2017,
while defendant's trial was in 2014. If the tweets were discoverable in 2014,
defendant failed to provide any evidence of such. Thus, there exists no basis for
casting doubt on trial counsel's investigatory decisions.
A-0474-18T3
7
Defendant also argues trial counsel failed to investigate Bunion-
Clemmons, Smith, and their alleged affair. Defendant believes an investigation
into this affair could have supported "the possibility of third-party guilt," with
Bunion-Clemmons's husband as a potential suspect. In her decision, the PCR
judge found that defendant's "allegations [did] not establish a prima facie claim
of ineffective assistance of counsel entitling [defendant] to post-conviction
relief from the jury's sound verdict; or in the alternative[,] warrant an evidentiary
hearing." The judge found that there was nothing in the record supporting
defendant's allegation that there was a romantic relationship between Smith and
Bunion-Clemmons. However, the record was supplemented later with Ms.
Bunion-Clemmons's statement to police from October 2, 2012.
Bunion-Clemmons, who was separated from her husband, disclosed that
she and Smith had "been talking lately and [her] husband found out about it,"
but she also asserts that she does not think her husband "has something like this
in him." When asked if she was having trouble with anyone, she responded that
someone had broken into her house the previous Friday. Bunion-Clemmons was
under the impression that burglary was committed by someone she knew
personally because her children's possessions were not taken or touched, while
her possessions were stolen.
A-0474-18T3
8
Although Bunion-Clemmons asserts that she and Smith were "talking,"
there is no evidence that they were involved in a dating or physical relationship.
However, because the PCR judge did not have the opportunity to review and
consider this statement and given her determination on this issue was largely
based on the lack of evidence, this question of effective assistance of counsel
should be remanded for consideration of Bunion-Clemmons's statement to
police.
We need not reach the merits of defendant's remaining argument, wherein
he contends additional testimony at an evidentiary hearing is needed to show
trial counsel's personal connection with Smith. Defendant may pursue this claim
at the evidentiary hearing.
Reversed and remanded for an evidentiary hearing consistent with this
opinion. We do not retain jurisdiction.
A-0474-18T3
9