STATE OF NEW JERSEY VS. PETER LEONCE (11-02-0440, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1446-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER LEONCE,
Defendant-Appellant.
______________________________
Submitted March 2, 2020 – Decided June 2, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 11-02-0440.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodesetro, Designated Counsel on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Regina M. Oberholzer, Deputy Attorney
General, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant, Peter Leonce, appeals from the denial of his petition for post-
conviction relief (PCR). He was convicted at trial for his role in a gang-related
double homicide. The jury found him guilty of murder with respect to on e of
the victims, twenty-three-year-old Michael Hawkins, and aggravated
manslaughter with respect to the other victim, eighteen-year-old Muriah Huff.
Defendant, who was a minor when the crimes were committed, raises numerous
contentions in this appeal. Most were decided by the PCR court without an
evidentiary hearing. All of defendant's PCR claims assert that he received
ineffective assistance of counsel at various stages of the criminal proceedings.
With respect to all but two of defendant's contentions, the PCR judge,
Judge John Thomas Kelly, concluded that defendant failed to establish that
counsel rendered ineffective assistance. Judge Kelly found that counsel had
rendered ineffective assistance with respect to the State's motion to transfer the
case from juvenile to adult criminal court. Judge Kelly nonetheless concluded
that defendant, who was one month shy of his eighteenth birthday when the
homicides were committed, did not suffer prejudice from counsel's failure to
contest the transfer of jurisdiction to adult criminal court. Judge Kelly
concluded that it was not reasonably probable that the outcome would have been
different had defendant opposed the State's waiver motion.
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After convening a three-day evidentiary hearing, Judge Kelly further
found that counsel rendered ineffective assistance in failing to thoroughly
investigate a potential alibi witness. However, based on his observation of the
witness's testimony at the hearing, Judge Kelly determined that he would have
been a poor alibi witness and ultimately would have caused more harm than
good for the defense had he testified at trial. Judge Kelly thus found that
defendant failed to establish that he suffered prejudice from counsel's failure to
thoroughly investigate that witness's potential testimony.
We have reviewed the record in light of defendant's contentions, the
parties' briefs, including defendant's pro se submissions, and the applicable legal
principles that govern this appeal. We agree with the PCR court that with two
exceptions, defendant's PCR claims are either procedurally barred or else fail to
meet the Strickland1 standard for proving that counsel's performance fell outside
the range of reasonable professional assistance. With respect to defendant's
juvenile waiver contention, we agree with the PCR judge that while counsel's
performance was deficient, it is not reasonably probable that jurisdiction would
have remained in juvenile court had counsel advised defendant to contest the
State's waiver motion. We also agree with the PCR court that while counsel was
1
Strickland v. Washington, 466 U.S. 668 (1984).
A-1446-18T4
3
obligated to more thoroughly investigate the potential alibi witness, his
testimony at trial would not have changed the verdict and if anything would have
undermined the defense. We therefore affirm the denial of PCR substantially
for the reasons set forth in Judge Kelly's thorough and cogent oral opinion.
I.
We briefly summarize the procedural history leading up to this appeal.
Defendant was one of nine persons who were charged in connection with the
gang-related double homicide. The State filed a motion pursuant to N.J.S.A.
2A:4A-26 (repealed 2016) to transfer jurisdiction from juvenile to adult criminal
court. The Family Part judge granted the application after defendant waived his
right to a hearing on advice of counsel.
Defendant was thereafter charged by indictment with multiple counts
including (1) first-degree murder, (2) first-degree felony murder, (3) first-degree
kidnapping, (4) first-degree conspiracy to commit murder/kidnapping, (5) third-
degree possession of a weapon for an unlawful purpose, (6) fourth -degree
unlawful possession of a weapon, and (7) third-degree hindering apprehension
or prosecution.
Defendant moved to suppress an incriminating statement he gave to police
during a custodial interrogation. The trial court conducted an evidentiary
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4
hearing after which it denied defendant's suppression motion. The case
proceeded to trial. The jury found defendant guilty of the murder of Michael
Hawkins, the aggravated manslaughter of Muriah Huff, criminal restraint,
kidnapping, conspiracy to commit murder, and hindering apprehension.
The trial judge sentenced defendant to an aggregate term of forty-five
years in state prison. More specifically, the judge sentenced defendant to a
thirty-year term of imprisonment and parole ineligibility on the murder
conviction and a consecutive fifteen-year sentence subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter
conviction. The sentences imposed on the remaining counts run concurrently to
the murder/aggravated manslaughter consecutive sentences.
On direct appeal, we affirmed the trial convictions and consecutive
sentences but remanded for the trial court to merge the conspiracy counts with
the substantive offenses. State v. Leonce, No. A-3711-13 (App. Div. Sept. 16,
2016). The New Jersey Supreme Court denied certification. State v. Leonce,
229 N.J. 602 (2017).
Defendant filed a pro se PCR petition that was followed by an amended
petition submitted on defendant's behalf by assigned counsel. Defendant raised
nine distinct issues for the PCR court's consideration. All of defendant's PCR
A-1446-18T4
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contentions assert that he received ineffective assistance of counsel pertaining
to the waiver to adult court, the motion to suppress his statement, the jury trial,
and the sentencing hearing. Judge Kelley ordered an evidentiary hearing only
on whether trial counsel was ineffective for failing to investigate and call three
specified witnesses at trial. The PCR court denied defendant's request for an
evidentiary hearing with respect to the other contentions. After hearing oral
argument, Judge Kelly denied defendant's petition for PCR for reasons spelled
out in a comprehensive and highly detailed oral opinion that spans forty-nine
pages of transcript. Defendant now appeals from that decision.
II.
The facts adduced at trial concerning defendant's role in the brutal killing
of Michael Hawkins and Muriah Huff are recounted in our prior opinion and
need only be briefly summarized in this opinion. Defendant was a member of
the Luerdes Park Piru gang, which is associated with the Bloods. Michael
Hawkins was a member of a rival gang, the Hoover Crips. Muriah Huff was not
affiliated with a gang.
On February 22, 2010, both victims visited the residence of codefendant
Dennis Welch on Berkley Street in Camden. Other members of the Luerdes
Park Piru gang lived in that house, which was rented by Welch's mother. Gang
A-1446-18T4
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members who were present believed Hawkins had previously stolen a bottle of
liquor from them. At some point, Huff left Welch's bedroom and went
downstairs. Hawkins remained in the bedroom with defendant, Welch, and
several other Luerdes Park Piru gang members. An upper-echelon gang member
ordered female gang members in the house to distract Huff. After a few minutes,
Hawkins began screaming, "stop, please help me." Huff tried to go upstairs
when she heard the screaming but the female gang members prevented her from
assisting Hawkins.
Defendant, Welch, and several other gang members kicked Hawkins and
beat him with their fists and a baseball bat. They tied him up, placed duct tape
over his mouth, and shoved him into the bedroom closet. They then rummaged
through Hawkins's backpack and discovered a piece of paper linking him to the
rival Crips gang. They took a photograph of Hawkins showing him bound and
beaten and electronically sent the photo to other Luerdes Park Piru gang
members with instruction to come to the house immediately.
When they arrived at the house, the other gang members, including the
gang leader, proceeded upstairs to Welch's bedroom. One of the gang members
opened the closet door whereupon the leader shot Hawkins in the head five times
from a distance of six inches. Hawkins was still breathing, however. The leader
A-1446-18T4
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told the other members, including defendant, to "finish him." The leader and
Welch then went downstairs to confront Huff. The gang members remaining in
the bedroom proceeded to beat Hawkins to death, breaking every bone in his
face.
Defendant went downstairs to find the gang leader screaming at Huff that
she "set him up." Huff pleaded for her life, claiming she "didn't do it." The
gang leader put his gun against Huff's head and pulled the trigger, but the gun
was empty. He then struck Huff with the gun twice in the face and ordered the
female gang members to "F her up." As instructed, the females began beating
Huff.
During the attack, Huff pleaded for the female assailants to stop,
screaming that "she didn't know, and she didn't do it." Welch's mother, who
rented the house, attempted to intervene. The female gang members ignored
her, and Welch escorted his mother to her bedroom and told her to stay there.
The assault on Huff continued mercilessly. One of the female assailants
broke a chair over Huff. The females then used parts of the broken chair to
strike the victim. Despite Huff's continuing pleas and her promise that she
would remain silent, the gang leader ordered the females to kill Huff. One
female attempted to strangle Huff with her hands. Eventually, one of the mal e
A-1446-18T4
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gang members handed her a rope to use as a ligature. The female assailant
placed the rope around Huff's neck, put her knee against Huff's back, and pulled
on the rope. When that technique failed, a male gang member joined in pulling
on the rope as Huff tried desperately to resist. The female then picked up a knife
and attempted to stab Huff while the male gang member continued to pull on the
rope around Huff's neck. The female tried to stab Huff, but the knife "just kept
bouncing off." A male gang member took the knife and stabbed Huff several
times. Defendant checked Huff's pulse and determined she was still alive. 2 The
State maintains that defendant then took a plastic bag and placed it over Huff's
head, finally killing her. 3
The gang members stripped the victims' clothing and carried the bodies to
the basement. Defendant participated in cleaning up the house and disposing
the baseball bat, rope, and victims' clothing. Defendant, Welch, and a third male
gang member then dug a hole in the back yard and buried the victims. Police
discovered the bodies three days later.
2
One of the female gang members, Shatara Carter, who was also Leonce's
girlfriend, gave conflicting testimony, initially stating that defendant had
checked Huff's pulse but later claimed that "he didn't touch her."
3
Shatara Carter also told police that defendant placed the plastic bag over Huff's
head. She testified at trial, however, that she was the one who placed the bag
over the victim's head.
A-1446-18T4
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III.
Defendant, through his assigned counsel, raises the following contentions
for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE DEFENDANT
ESTABLISHED THE TESTIMONY OF DONALD
WILLIAMS WOULD HAVE ESTABLISHED AN
ALIBI TO THE MURDERS OF HAWKINS AND
HUFF, THEREBY RAISING REASONABLE DOUBT
REGARDING DEFENDANT'S GUILT.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TRIAL COUNSEL WAS INEFFECTIVE AT
SENTENCING IN FAILING TO ARGUE
DEFENDANT WAS RECEIVING A SENTENCE
THAT WAS THE EQUIVALENT OF LIFE
IMPRISONMENT.
POINT III
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO ADVISE DEFENDANT REGARDING ALL
ASPECTS OF HIS JUVENILE WAIVER HEARING,
INCLUDING HIS RIGHT TO CALL WITNESSES ON
HIS BEHALF AND FAILING TO INFORM HIM HE
A-1446-18T4
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COULD CHALLENGE EVIDENCE THE STATE
WAS PRESENTING AGAINST HIM.
Defendant also submitted a pro se brief raising the following contentions:
POINT I
THE PCR COURT ERRED IN FAILING TO GRANT
THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF OR IN THE ALTERNATIVE,
ORDERING AN EVIDENTIARY HEARING ON
[DEFENDANT]'S CLAIMS OF INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL
A. TRIAL COUNSEL WAS
INEFFECTIVE FOR ALLOWING THE
STATE TO PRESENT CONFLICTED
THEORIES THAT WAS VIRTUALLY
UNCONTESTED. THIS VIOLATION
DEPRIVED DEFENDANT OF
EFFECTIVE ASSISTANCE OF
COUNSEL.
B. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR FAILING TO INFORM
PETITIONER AND/OR HIS PARENT OF
THE RISKS AND CONSEQUENCES OF
AGREEING TO A VOLUNTARY
WAIVER TO ADULT COURT AND FOR
FAILING TO ADVISE PETITIONER OF
HIS RIGHTS AT THE JUVENILE
WAIVER HEARING.
C. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR FAILING TO CALL PETITIONER
A-1446-18T4
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AND HIS MOTHER TO TESTIFY AT
HIS SUPPRESSION HEARING.
D. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR NOT CALLING PETITIONER TO
TESTIFY AT TRIAL.
E. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR FAILING TO OBJECT TO
DETECTIVE PATRICIA TULANE'S
INADMISSIBLE HEARSAY
TESTIMONY.
F. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR FAILING TO CALL ARNETTA
WELCH, DONALD WILLIAMS JR. [,]
AND CLIVE HINDS AS DEFENSE
WITNESSES AT TRIAL.
G. TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE
FOR FAILING TO OBJECT TO THE
PROSECUTOR DISMISSING COUNTS
SEVENTEEN AND EIGHTEEN OF THE
INDICTMENT.
POINT II
THE STATE'S STAR WITNESS DARRLY [SIC]
PIERRE RECANTED HIS TESTIMONY ON
DEFENDANT'S POST-CONVICTION RELIEF,
WHICH SUBSTANTIALLY DEPLETED THE
STATE'S EVIDENCE AGAINST THE DEFENDANT.
A-1446-18T4
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POINT III
THE DEFENDANT MUST BE RESENTENCED
WITH THE COURT GIVING DUE
CONSIDERATION THAT THE MILLER /ZUBER[5]
[4]
FACTORS WHICH ARE CONSTITUTIONALLY
REQUIRED FOR IMPOSING LENGTHY,
CONSECUTIVE TERMS OF IMPRISONMENT ON
JUVENILE OFFENDERS BEING SENTENCED IN
ADULT COURT.
IV.
We begin our analysis by acknowledging the legal principles governing
this appeal. Post-conviction relief serves the same function as a federal writ of
habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning
for PCR, a defendant must establish by a preponderance of the credible evidence
that he or she is entitled to the requested relief. Ibid. (citations omitted). The
defendant must allege and articulate specific facts that "provide the court with
an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
Both the Sixth Amendment of the United States Constitution and Article
1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland, 466 U.S.
4
Miller v. Alabama, 567 U.S. 460 (2012).
5
State v. Zuber, 227 N.J. 422 (2017).
A-1446-18T4
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at 686 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); State v.
Fritz, 105 N.J. 42, 58 (1987). To establish a violation of the right to the effective
assistance of counsel, a defendant must meet the two-part test articulated in
Strickland. Fritz, 105 N.J. at 58. "First, the defendant must show that counsel's
performance was deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. A defendant, in other words,
"must overcome the presumption that, under the circumstances, the challenged
action 'might be considered sound trial strategy.'" Ibid. (citation omitted).
Furthermore, in determining whether defense counsel's representation was
deficient, "'[j]udicial scrutiny . . . must be highly deferential,' and must avoid
viewing the performance under the 'distorting effects of hindsight.'" State v.
Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, 466 U.S. at 689). Moreover,
"[t]he quality of counsel's performance cannot be fairly assessed by focusing on
a handful of issues while ignoring the totality of counsel's performance in the
A-1446-18T4
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context of the State's evidence of [a] defendant's guilt." State v. Castagna, 187
N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991)).
The second prong of the Strickland test requires the defendant to 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. In determining whether defense
counsel's alleged deficient performance prejudiced the defense, "[i]t is not
enough for the defendant to show that the errors had some conceivable effect on
the outcome of the proceeding." Id. at 693. Rather, defendant bears the burden
of showing that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 694.
The second Strickland prong is particularly demanding. "[T]he error
committed must be so serious as to undermine the court's confidence in the jury's
verdict or the result reached." State v. Allegro, 193 N.J. 352, 367 (2008)
(quoting Castagna, 187 N.J. at 315).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record in connection with
his or her ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR
court should grant an evidentiary hearing when a defendant is able to prove a
A-1446-18T4
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prima facie case of ineffective assistance of counsel, there are material issues of
disputed fact that must be resolved with evidence outside of the record, and the
hearing is necessary to resolve the claims for relief. Id. at 462; R. 3:22-10(b).
To meet the burden of proving a prima facie case, a defendant must show a
reasonable likelihood of success under the Strickland test. Preciose, 129 N.J. at
463. "[C]ourts should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie claim." Id. at
462–63.
"In order to establish a prima facie claim, a petitioner must do more than
make bald assertions that [he or she] was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The
petitioner must allege specific facts sufficient to support a prima facie claim.
Ibid. Furthermore, the petitioner must present these facts in the form of
admissible evidence. In other words, the relevant facts must be shown through
"affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification." Ibid.; see also R. 3:22-10(c) ("Any factual
assertion that provides the predicate for a claim of relief must be made by an
affidavit or certification . . . and based upon personal knowledge of the declarant
before the court may grant an evidentiary hearing.").
A-1446-18T4
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As a general proposition, we defer to a PCR court's factual findings "when
supported by adequate, substantial and credible evidence." State v. Harris, 181
N.J. 391, 415 (2004) (quoting Toll Bros, Inc. v. Twp. of W. Windsor, 173 N.J.
502, 549 (2002)). However, when the trial court does not hold an evidentiary
hearing, we "may exercise de novo review over the factual inferences drawn
from the documentary record." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923
F.2d 284, 291 n.5 (3d Cir. 1991)). Similarly, we review de novo the PCR court's
legal conclusions. State v. Nash, 212 N.J. 518, 540–41 (2013) (citing Harris,
181 N.J. at 415–16).
V.
We first address defendant's contention that his counsel was ineffective
for failing to argue that the consecutive sentences he received on his murder and
aggravated manslaughter convictions violate the principles set forth in Miller
and Zuber. The United States Supreme Court in Miller held that youth and its
attendant characteristics must be considered at the time a juvenile is sentenced
to life imprisonment without the possibility of parole. 567 U.S. at 465. The
Court outlined a series of relevant factors that courts must consider before
imposing that sentence. Id. at 479–80 (identifying certain characteristics of the
juvenile defendants relevant to sentencing, including the juvenile's role in the
A-1446-18T4
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offense, the juvenile's history of abuse or neglect, periods of time spent in foster
care, prior suicide attempts, and a limited prior criminal history).
In Zuber, the New Jersey Supreme Court concluded that the same Eighth
Amendment principles addressed in Miller apply to sentences that are the
practical equivalent of life without parole. 227 N.J. at 429. The Court in Zuber
held that before a judge imposes consecutive terms that would result in a lengthy
overall term of imprisonment for a juvenile, the court must consider the Miller
factors along with other traditional concerns. Ibid.
This is not the first time defendant has presented the Miller/Zuber
argument to us. We addressed this contention on the merits when we reviewed,
and ultimately affirmed, defendant's aggregate sentence on his direct appeal .
Leonce, slip op. at 31–32. Rule 3:22-5 provides that "a prior adjudication upon
the merits . . . is conclusive." We therefore agree with the PCR court that
defendant is barred from raising the Miller/Zuber contention in the present PCR
petition under the guise of ineffective assistance of counsel.
Even if we were to disregard the procedural bar, defendant's claim that
counsel rendered ineffective assistance at the sentencing hearing lacks merit
under Strickland analysis. For one thing, contrary to defendant's present claim,
A-1446-18T4
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his trial counsel did not fail to argue the Miller factors at the time of sentencing. 6
Rather, counsel in his sentencing allocution highlighted defendant's youth and
argued that imposition of consecutive sentences on the homicide convictions
would be the equivalent of life without parole. Counsel, in other words ,
explicitly addressed the Miller factors at the sentencing hearing, arguing that the
sentences imposed on defendant's murder and aggravated manslaughter
convictions should be served concurrently, not consecutively, even though they
involve two different victims. See generally State v. Yarbough, 100 N.J. 627
(1985) (providing guidance on when to impose consecutive sentences); see also
State v. Carey, 168 N.J. 413, 429–30 (2001) (noting that "the multiple-victims
factor [in Yarbough] is entitled to great weight and should ordinarily result in
the imposition of at least two consecutive terms when multiple deaths or serious
bodily injuries have been inflicted upon multiple victims by the defendant");
State v. Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009), aff'd, 201 N.J. 471
(2010) (affirming consecutive sentences imposed for a double murder).
The first Strickland prong requires a defendant to show that counsel,
"made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." 466 U.S. at 687. In this instance,
6
At the time of sentencing, Zuber had not yet been decided.
A-1446-18T4
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counsel's performance at the sentencing hearing was not constitutionally
deficient. Counsel made appropriate arguments on defendant's behalf with
respect to the factors set forth in Miller and preserved the issue for appellate
review. See State v. DiFrisco, 174 N.J. 195, 219–20 (2002) (observing that a
trial strategy's failure to obtain the optimal outcome for a defendant is
insufficient to show that counsel was ineffective) (citing State v. Bey, 161 N.J.
233, 252 (1999)). Accordingly, defendant has not overcome the strong
presumption that counsel's performance at the sentencing hearing fell within the
wide range of reasonable professional assistance. Strickland, 467 U.S. at 689.
Furthermore, defendant cannot show that he was prejudiced by counsel's
performance at the sentencing hearing, especially in view of our ruling on direct
appeal in which we rejected defendant's Miller/Zuber argument and affirmed the
consecutive homicide sentences. Defendant has failed to establish that it is
reasonably probable that any additional arguments counsel might have made at
the sentencing hearing would have led to concurrent sentences or a shorter
aggregate sentence. 7 Defendant has thus failed to establish the second prong of
the two-part Strickland test. 466 U.S. at 694.
7
We note that the thirty-year period of parole ineligibility was the minimum
sentence that could be imposed on defendant's murder conviction. N.J.S.A.
A-1446-18T4
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VI.
Defendant next contends his counsel rendered ineffective assistance in
challenging the admissibility of the incriminating statement defendant gave to
police. Specifically, defendant contends counsel was ineffective by not calling
him and his mother to testify at the suppression hearing.
Counsel argued before the motion court that defendant's statement was not
voluntary because (1) his sister accompanied him to the interview and her
children were also being investigated in this case; (2) neither of his parents were
present; and (3) he did not understand some of the language used to explain his
Miranda rights. The motion court rejected those arguments, finding that the
investigator's testimony concerning her efforts to reach out to defendant's
parents was credible and that those efforts were constitutionally sufficient. See
State v. Presha, 163 N.J. 304, 316 (2000) (holding that police officers must use
their best efforts to locate a parent or legal guardian before beginning a custodial
interrogation of a minor; the prosecutor must show to the trial court's satisfaction
2C:11-3(b). The trial judge did not impose the life sentence authorized by
N.J.S.A. 2C:11-3(b), which, under NERA, would have resulted in a parole
ineligibility term of almost sixty-nine years. Furthermore, the fifteen-year
sentence imposed on defendant's aggravated manslaughter conviction is at the
lower end of the ten-to-thirty-year range authorized pursuant to N.J.S.A. 2C:11-
4(c).
A-1446-18T4
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that police were unable to locate a parent (citing In re J.F., 286 N.J. Super. 89,
98 (App. Div. 1995))). The motion court concluded ultimately that defendant's
statement was voluntary and admissible.
On direct appeal, we affirmed the motion court's denial of defendant's
suppression motion. Leonce, slip op. at 22–28. In reaching our conclusion that
defendant's statement was properly admitted, we relied in part on the motion
court's finding that Investigator Tulane was credible when she testified as to the
efforts she made to locate defendant's parents prior to questioning him. We
ruled that the efforts that were undertaken by Investigator Tulane to locate
defendant's parents were sufficient and that the interrogation was properly
conducted with defendant's older sister standing in place of a parent. Leonce,
slip op. at 27–28.
As we have noted, Rule 3:22-5 precludes consideration of a PCR claim
that has already been adjudicated on the merits. In an effort to circumvent that
procedural bar, defendant seeks to recast his previously adjudicated suppression
argument as an ineffective assistance of counsel claim. We agree with the PCR
court that defendant's present ineffective assistance claim is substantially similar
to the voluntariness argument we have already rejected. But even assuming that
defendant's ineffective assistance contention is not procedurally barred under
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Rule 3:22-5, we conclude defendant has failed to establish either prong of the
Strickland test with respect to counsel's performance at the suppression hearing.
We first address defendant's contention that counsel was ineffective for
failing to have defendant testify at the hearing. In order to establish that counsel
rendered constitutionally deficient assistance based on the failure to call a
witness, a defendant seeking to establish the first prong of the Strickland test
must overcome the presumption that the failure to call the witness "might be
considered sound trial strategy." State v. Arthur, 184 N.J. 307, 320 (2005)
(quoting Strickland, 466 U.S. at 689). Determining which witnesses to call to
the stand is an "an art." Id. at 321 (quoting Strickland, 466 U.S. at 693).
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.]
Given the difficulty inherent in selecting witnesses, a court's review of counsel's
decision must be "highly deferential." Id. at 321 (quoting Strickland, 466 U.S.
at 689).
A-1446-18T4
23
Applying that deferential standard of review to the circumstances
presented in this case, we agree with the PCR court that it was a reasonable
strategic decision to prevent defendant from being subjected to cross -
examination by the prosecutor. We therefore conclude that the decision not to
have defendant testify fell within the range of reasonable professional
assistance. Strickland, 466 U.S. at 689.
Furthermore, defendant has not established that he was prejudiced by the
decision not to call him as a witness at the suppression hearing. Defendant has
not presented any new legal or fact-sensitive arguments that his testimony would
have addressed. As we have noted, the motion court found Investigator Tulane
credible as to the circumstances of the interrogation. We therefore agree with
Judge Kelly's conclusion that defendant's testimony would not have had a
reasonable probability of changing the outcome of the suppression motion.
Strickland, 466 U.S. at 694.
We turn to counsel's decision not to call defendant's mother as a witness
at the suppression hearing. Defendant claims in his pro se brief that his mother
would have testified that police prevented her from being present during his
interrogation. Cf. Presha, 163 N.J. at 320 (observing that when there has been
a deliberate exclusion of a parent or legal guardian, the juvenile's confession
A-1446-18T4
24
"almost invariably will be suppressed"). However, defendant fails to support
this contention with sufficient, competent proofs.
Defendant "must do more than make bald assertions that [he or she] was
denied the effective assistance of counsel." Cummings, 321 N.J. Super. at 170.
Rather, he must present facts in the form of admissible evidence, that is,
"affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification." Ibid. Given the absence of any
certification or affidavit from defendant's mother asserting that police
affirmatively prevented her from attending the interrogation, we treat this PCR
contention as a bald assertion and reject it.
Defendant also claims his mother would not have allowed defendant's
sister to "fill in" as his guardian for purposes of protecting his Fifth and Sixth
Amendment rights. Defendant asserts in his pro se brief that he presented a
certification to this effect to the court that heard the suppression motion.
However, the record before us does not include any such certification. 8
8
The only certification from defendant in the record asserts that the investigator
who took his statement never asked him for his mother's contact infor mation or
allowed him to try to contact his mother. This assertion is not enough to warrant
an evidentiary hearing to expand the PCR record, much less warrant a new
suppression hearing. As noted, to meet the burden of proving a prima facie case,
a defendant must show a reasonable likelihood of success under the Strickland
A-1446-18T4
25
In any event, his mother's testimony that she would not have consented to
the interrogation had she been present would not have created a reasonable
probability that the outcome of the suppression hearing would have been
different. Strickland, 466 U.S. at 694. One of the critical issues framed at the
suppression hearing was whether police complied with the rules set forth in
Presha governing the interrogation of minors over the age of fourteen. 163 N.J.
at 317 (explaining that because the defendant was nearly seventeen years old at
the time of the interrogation, stricter rules governing the interrogation of
juveniles under the age of fourteen did not apply).
When the custodial interrogation of a juvenile is lawfully conducted in the
absence of a parent, a parent cannot void that ruling by later claiming he or she
would not have consented to the interrogation had he or she been present. To
hold otherwise would upend the holding in Presha by imposing, for all practical
purposes, a per se rule that requires police to refrain in all cases from conducting
a custodial interrogation without a parent present or else risk suppression of an
two-part test. Preciose, 129 N.J. at 463. We conclude defendant cannot show a
reasonable likelihood of satisfying the second prong of the Strickland test in
view of the motion court's finding that the investigator was credible in
describing her efforts to contact defendant's parents before taking his statement.
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26
otherwise voluntary confession at the parent's subsequent election. 9 Defendant
offers no authority for the proposition that an absent parent holds such power to
nullify a trial court's ruling—and in this case, an appellate court's ruling as
well—that police were permitted to proceed with the interrogation in the parent's
absence after having made reasonable efforts to contact the parent.
In sum, the admissibility of a juvenile's confession is determined from the
totality of circumstances that existed when the custodial interrogation was
conducted, including whether police had made a reasonable effort to contact a
parent. When as in this case police made such an effort, thereby satisfying the
rule announced in Presha, admissibility of a confession does not depend on what
might have happened had an absent parent been present. Because we have
already ruled that the custodial interrogation was lawfully conducted in the
absence of defendant's mother, her testimony at the suppression hearing would
not have changed the conclusion that defendant's statement was admissible.
9
Presha held the absence of a parent or legal guardian from the interrogation of
a juvenile is a "highly significant factor" when determining whether the minor's
waiver of rights was knowing, intelligent, and voluntary. 163 N.J. at 315. The
Court did not, however, impose a per se rule requiring in all cases that a parent
be present.
A-1446-18T4
27
VII.
We turn next to defendant's claim that his counsel was ineffective by
failing to advise him of his right to contest the State's motion to transfer the case
from juvenile to adult criminal court. Judge Kelly found that defendant was
afforded only fifteen minutes notice before being asked to waive his right to
contest the transfer of jurisdiction. Judge Kelly aptly described the lack of prior
notice as "problematic," especially considering the significant sentencing
consequences of an adult homicide conviction as compared to a juvenile
adjudication of delinquency. 10
Judge Kelly concluded that given the abrupt manner in which defendant
was induced by his counsel to consent to the transfer of jurisdiction, defendant
has established the first prong of the Strickland test. The PCR court concluded,
however, that defendant failed to establish the second prong in the Strickland
analysis because it is not reasonably probable that the Family Part judge would
10
A juvenile adjudicated delinquent for murder is not subject to NERA or any
other mandatory sentence or term of parole ineligibility. See N.J.S.A. 2A:4A-
44 (permitting the sentencing court to impose a term of imprisonment but not a
period of parole ineligibility). The record shows that the Family Part judge
explained to defendant the difference between the potential adult sentence and
juvenile disposition. Defendant responded that he understood. Defendant and
his attorney engaged in a colloquy on the record in which defendant indicated
he understood the nature of the proceedings and wished to waive the hearing.
A-1446-18T4
28
have denied the State's waiver motion had it been contested. We agree that
defendant has failed to establish that he was prejudiced by counsel's handling of
the State's waiver motion. Given the nature of the charges and the strength of
the State's proofs, it is highly unlikely that counsel could have done anything to
have prevented the transfer of this double homicide prosecution to adult criminal
court.
The statutory framework for waiving a juvenile prosecution to adult
criminal court in force at the time was codified in N.J.S.A. 2A:4A-26 (repealed
2016). That statute provided:
a. On motion of the prosecutor, the court shall, without
the consent of the juvenile, waive jurisdiction over a
case and refer that case from the Superior Court,
Chancery Division, Family Part to the appropriate court
and prosecuting authority having jurisdiction if it finds,
after hearing, that:
(1) The juvenile was 14 years of age or older at
the time of the charged delinquent act; and
(2) There is probable cause to believe that the
juvenile committed a delinquent act or acts which
if committed by an adult would constitute:
(a) Criminal homicide other than death by
auto . . . .
[Ibid. (emphasis added).]
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29
Our review of the statutory elements set forth in N.J.S.A. 2A:4A-26 shows
that waiver to adult court in this case was virtually assured upon the State's
motion. It is not disputed that defendant was older than fourteen when the
homicides occurred. Indeed, he was just one month shy of turning eighteen.
Nor can it be disputed that defendant was charged with "homicide other than
death by auto." Thus, the only waiver element under N.J.S.A. 2A:4A-26 that
could have been contested was whether there was probable cause to believe that
defendant committed the crimes. 11
Probable cause "is 'a well-grounded suspicion or belief that the juvenile
committed the alleged crime.'" A.D., 212 N.J. at 205 (quoting State v. J.M., 182
N.J. 402, 417 (2005)). "The trial court should find probable cause if the
evidence presented and the reasonable inferences supported by that evidence
give rise to a well-grounded suspicion or belief in the juvenile's guilt." Id. at
221. This standard of proof is similar to the one that guides a grand jury's
determination whether or not to indict. Id. at 205–06.
11
As a result of a 2000 amendment to the waiver statute, juveniles sixteen or
older were no longer entitled to present evidence that the prospect of
rehabilitation substantially outweighs the reasons supporting the waiver once
the State has established probable cause. State ex rel. A.D., 212 N.J. 200, 204
(2012). Accordingly, involuntary waiver in this case essentially would have
been automatic once probable cause had been established.
A-1446-18T4
30
The record shows that at the time of the State's waiver application, the
prosecutor was in possession of statements from multiple codefendants that
defendant participated in the homicides. Had the waiver motion been
challenged, the State would have been able to present evidence that satisfies the
probable cause standard of proof. We thus conclude, as did the PCR court, that
defendant suffered no prejudice under the second Strickland prong because the
ultimate outcome of the State's waiver application would have been the same
even if counsel had vigorously opposed the State's motion. Accordingly,
defendant is not entitled to post-conviction relief regarding the transfer of
jurisdiction and ensuing penal consequences. Strickland, 466 U.S. at 687.
VIII.
Defendant contends his counsel rendered ineffective assistance at trial by
failing to object to what defendant now characterizes as "conflicting theories"
as to the manner in which Muriah Huff was killed. Specifically, defendant
contends the State presented conflicting evidence as to whether Huff was
strangled with a rope or suffocated with a plastic bag. He contends that counsel
somehow rendered constitutionally deficient assistance by failing to object to
the introduction of evidence concerning the use of both a rope and plastic bag
to finish off the helpless victim.
A-1446-18T4
31
This contention lacks merit and warrants only brief discussion. R. 2:11-
3(e)(2). It is legally irrelevant for purposes of this appeal whether the victim's
death resulted ultimately from strangulation by ligature or suffocation. The
State adduced evidence the victim was subjected to both forms of lethal force,
as well as to stabbing and beating. In these circumstances, defendant's
culpability as an active participant in this brutal crime does not depend on which
of these types of lethal force finally caused the victim's death. The State was
permitted, in other words, to present multiple "theories," to use defendant's
characterization. Any objection made by counsel on the grounds defendant now
posits would have been frivolous. We therefore affirm the denial of PCR on this
contention substantially for the reasons succinctly explained by Judge Kelly.
IX.
We turn next to defendant's contention that counsel was ineffective in
advising him not to testify at trial. He further argues that the PCR court should
have convened an evidentiary hearing to examine counsel's basis for advising
defendant not to testify. We agree with the PCR court that defendant has failed
to establish a prima facie case warranting an evidentiary hearing much less
grounds for a new trial.
A-1446-18T4
32
Defendant claims he told his attorney he wanted to testify on his own
behalf in order to rebut the State's "lies," but his attorney advised him not to take
the stand because that would increase the chance of conviction. Defendant
acknowledges on appeal that in the statement he gave to police, he admitted to
being a gang member and also admitted to being present at the murder scene.
He now contends that had he testified at trial, he would have acknowledged that
he assaulted Hawkins but was outside the house when the gang leader came by
to kill Hawkins. He also maintains that his credibility as a witness would have
swayed the jurors.
These assertions are unpersuasive. We do not believe that counsel was
ineffective in advising defendant not to testify. As the PCR judge correctly
ruled, defendant has failed to establish a reasonable likelihood of su ccess under
the Strickland two-pronged test. Defendant therefore has not established a prima
facie case warranting a hearing to expand the record. Preciose, 129 N.J. at 463.
The testimony that defendant now claims he would have given would only have
corroborated the State's proofs that he had beaten Hawkins shortly before his
death. Defendant also would have been subject to cross-examination as to the
timing and sequence of events that might further have exposed his culpability.
We therefore conclude that counsel's advice was sound strategy that we decline
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33
to second guess. See Norman, 151 N.J. at 37 ("'Judicial scrutiny of counsel's
performance must be highly deferential,' and must avoid viewing the
performance under the 'distorting effects of hindsight.'" (quoting Strickland, 466
U.S. at 689)).
We further conclude that defendant has failed to establish the second
Strickland prong. Despite defendant's confidence in his ability to sway the
jurors, he has not established that it is reasonably likely that had he testified and
admitted that he had beaten Hawkins but did not intend for him to die, the trial
verdict would have been more favorable.
We add with respect to the potential prejudicial effect of counsel's advice
that the record clearly shows that defendant was told that the decision whether
to testify was his and his alone to make. The trial court engaged defendant in
an appropriate colloquy on the record during which the judge made clear that
defendant had the right to testify on his own behalf notwithstanding the
recommendation of his counsel. Defendant unequivocally stated that he did not
wish to testify. In these circumstances, defendant is hard pressed to show that
he was in any way prejudiced by his attorney's advice.
A-1446-18T4
34
X.
Defendant next claims counsel was ineffective by failing to object to a
hearsay statement made at trial by Investigator Tulane. During direct
examination, the prosecutor asked the investigator where she had received
information that defendant placed the plastic bag on Muriah Huff's head. The
investigator answered that one of the female gang members, Shatara Carter, had
implicated defendant while testifying at trial for another defendant, Clive Hinds.
Defense counsel did not object to this hearsay testimony. Instead, he used
Tulane's hearsay statement in an attempt to discredit her competence and
objectivity, and to highlight the absence of forensic evidence against his client.
During cross-examination, counsel questioned Tulane on this issue and induced
her to admit there was no physical evidence linking defendant to the bag used
to suffocate Huff, only statements of other witnesses. During this cross -
examination, Tulane also indicated that Clive Hinds also implicated defendant
in Huff's death. After Tulane testified that Hinds linked defendant to the plastic
bag, defense counsel attacked the credibility of that statement, noting that Hinds
was also charged with murder, did not provide the statement under oath, and the
statement had not been subject to cross-examination.
A-1446-18T4
35
In his summation, counsel attacked the credibility of the statement
Investigator Tulane relied upon. Counsel noted that the State had called other
witnesses, including Shatara Carter, who testified that someone other than
defendant placed the plastic bag over Huff's head. Counsel further argued to the
jury that the State had not called Hinds as a witness.
The PCR court noted that a timely objection to Investigator Tulane's
hearsay testimony might have better served defendant's interests. After
reviewing the record as a whole, and given the benefit of hindsight, we agree
with that observation. Cf. Norman, 151 N.J. at 37 (cautioning reviewing courts
to avoid judging counsel's performance under the "distorting effects of
hindsight." (quoting Strickland, 466 U.S. at 689)). But we also agree with the
PCR judge that the decision not to object to the hearsay statement was a
reasonable strategic choice when viewed in the context of counsel's cross
examination of Tulane and his closing arguments challenging her credibility and
investigative prowess. Allowing the jury to hear about Hind's assertion via
Tulane provided an opportunity for the defense to expose the investigator's
reliance upon self-interested sources of information. It also enabled counsel to
argue that Tulane relied on statements made by a witness the prosecutor did not
present before the jury.
A-1446-18T4
36
In view of the high degree of deference afforded to trial counsel in making
such strategic choices, we conclude that defendant has failed to overcome either
the "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance," Strickland, 466 U.S. at 689, or the closely
related presumption that the challenged action "'might be considered sound trial
strategy.'" Ibid. (citation omitted).
XI.
Defendant next contends that his trial counsel rendered ineffective
assistance by failing to object to the State's motion to dismiss two counts of the
indictment pertaining to the rope used in the course of killing Muriah Huff. This
contention lacks sufficient merit to warrant extensive discussion in this opinion.
R. 2:11-3(e)(2).
The indictment identified the rope as a weapon used against Muriah Huff
and charged defendant with possession of the rope and possession for an
unlawful purpose. The prosecutor moved to dismiss those weapons counts at
the conclusion of the State's case in recognition that the State had presented no
testimony that defendant possessed the rope. The record shows that d efendant
considered whether to object to the dismissal but elected not to do so when the
judge explained that if counsel objected and commented on the dismissal in his
A-1446-18T4
37
summation, the prosecutor would be permitted to respond to the defense
argument in the State's summation. We conclude, as did the PCR court, that
counsel's election to refrain from objecting in these circumstances was a
strategic decision that falls within the range of reasonable professional
assistance. Strickland, 466 U.S. at 689.
XII.
We turn next to defendant's contention that his counsel was ineffective by
failing to thoroughly investigate and call three witnesses to testify at trial:
Donald Williams, Clive Hinds, and Arnetta Welch. As to these contentions,
Judge Kelly found that defendant had established the need to expand the record.
The PCR court thereupon convened an evidentiary hearing that was conducted
over the course of three days.
We note that the standard of review we apply is more limited when a PCR
judge holds an evidentiary hearing. See State v. Nash, 212 N.J. 518, 540 ("Our
standard of review is necessarily deferential to a PCR court's factual findings
based on its review of live witness testimony."). We also have already
acknowledged the deferential standard that applies under Strickland analysis
when reviewing an attorney's decision whether to call a witness. See Arthur,
184 N.J. at 321 (opining that a PCR court's review of counsel's decision whether
A-1446-18T4
38
to call a witness must be "highly deferential" (quoting Strickland, 466 U.S. at
689)).
A.
Because our review is necessarily fact-sensitive, we address defendant's
ineffective assistance claims with respect to each potential witness separately.
We begin with defendant's contention that his counsel was ineffective for failing
to properly investigate the potential testimony of Donald Williams. Williams
certified that he was outside the house smoking marijuana with defendant during
the murders and "never heard [defendant] threaten or kill anyone." Defendant
thus contends Williams would have served as an alibi witness.
At the evidentiary hearing, both defendant and his trial counsel testified
that defendant informed counsel that defendant was outside smoking marijuana
with Williams at the time of the murders. Counsel testified that he believed that
Williams' version was inconsistent with the testimony expected from other
witnesses in the case. Counsel candidly acknowledged, however, that he did
not perform a complete investigation with respect to Williams' potential
testimony.
Judge Kelly found that counsel's failure to perform a thorough
investigation into whether Williams might have provided helpful testimony was
A-1446-18T4
39
unreasonable and amounted to ineffective assistance. We agree with the PCR
judge that defendant has established the first prong of the Strickland test. Our
focus thus turns to whether defendant has also established that he suffered
prejudice by the failure to call Williams as a defense witness at trial.
Both Williams and defendant testified at the PCR evidentiary hearing. As
Judge Kelly emphasized in his factual findings, their versions of events were not
consistent. Williams testified he and defendant were smoking marijuana in
Williams's car for about an hour outside the house in which Hawkins and Huff
were murdered. Williams testified that no one exited the house to talk to
defendant and that once they were done smoking marijuana, defendant went into
the house and did not come back out. Williams then left.
The version of events defendant presented in his PCR hearing testimony
was very different. Defendant testified that while he was in the car with
Williams, the gang leader exited the house, told defendant something happened
inside the home, and instructed defendant to go inside. Defendant testified that
when he went inside, he learned the murders had occurred. He then went outside
to tell Williams what happened.
The PCR court found that, "given these inconsistencies, Williams would
have been a poor alibi witness. His version of events place defendant at the
A-1446-18T4
40
property and in fact inside Berkley Street at the time of the murders and gave
him ample opportunity to participate." Judge Kelly concluded that, "if Mr.
Williams in fact had been called as a witness, he would have tremendously
harmed [defendant's] position."
Our own review of the record supports Judge Kelly's finding that Williams
would have been a weak alibi witness at best, especially because the timeline he
presented gave defendant ample time to participate in the murders. As the PCR
court aptly noted, Williams's testimony would have placed defendant at the
scene of the crime smoking a copious quantity of marijuana. We therefore
affirm the PCR court's ruling that defendant failed to establish that it is
reasonably probable that the outcome of the trial would have been different had
Williams testified for the defense. Strickland, 466 U.S. at 694; see also State v.
Drisco, 355 N.J. Super. 283, 291 (App. Div. 2002) ("Counsel's fear that a weak
alibi could cause more harm than good is the type of strategic decision that
should not be second guessed on appeal.").
B.
Hinds testified at the evidentiary hearing that defendant was outside the
house at the time the murders were committed inside. However, it is highly
unlikely that Hinds would have been available to testify at defendant's trial, and
A-1446-18T4
41
even if he were, his credibility as a defense witness would have been impeached
by prior statements he gave to police that inculpated defendant in the killings.
After reviewing the record, we affirm the PCR court's conclusion that defendant
has not established either prong of the Strickland test by his counsel's failure to
secure Hinds as a trial witness.
At the time of defendant's trial, Hinds's own trial conviction arising from
the Hawkins and Huff homicides was pending on appeal. Defendant's trial
counsel testified at the PCR evidentiary hearing that he would not have been
able to call Hinds as a witness without consulting with Hinds's appellate
attorney. Counsel testified that he "could not imagine that [Hinds's] appellate
counsel would have given [Hinds] favorable advice about testifying at
[Leonce's] trial."
Judge Kelly concurred with that assessment. The PCR court observed,
"[o]bviously, testimony given in court [at defendant's trial], when [Hinds] chose
not to testify in his own trial, would have harmed [Hinds] going forward in his
appellate work." The court concluded that "no competent counsel would have
allowed [Hinds] to testify."
We agree that it is unlikely that Hinds's appellate counsel would have
allowed Hinds to testify at defendant's trial while his own appeal was still
A-1446-18T4
42
pending. Importantly for purposes of our application of the Strickland/Fritz test,
defendant has not produced any evidence in the form of a certification or
affidavit from Hinds's appellate counsel to suggest that Hinds would have
testified had he been subpoenaed by defendant's counsel. Defendant has thus
failed to show that Hinds was available to present an alibi defense at defendant's
trial.
In these circumstances, we do not believe that defendant's counsel was
ineffective for failing to secure Hinds as a trial witness. But even assuming that
counsel was constitutionally derelict in his efforts to secure Hinds' testimony,
we conclude, as did Judge Kelly, that defendant has failed to show that he
suffered prejudiced from counsel's performance. We reach this conclusion for
two independent reasons. First, as noted, defendant has failed to show that it is
reasonably probable that more diligent efforts by his attorney would have
secured Hinds as a trial witness. To the contrary, it is reasonably probable that
more diligent efforts by counsel would have been unavailing.
Second, even if Hinds had been available as a witness, his testimony
would not have been likely to change the trial outcome because his credibility
as an alibi witness would have been severely undermined by inconsistent
statements he had previously given to police. For example, Hinds had
A-1446-18T4
43
previously stated that defendant was second in command of the gang and had
encouraged the female gang members to kill Huff. Hinds also told Investigator
Tulane that defendant was one of the individuals who tried to strangle Huff.
Judge Kelly considered Hinds's PCR hearing testimony in light of his prior
inconsistent statements and concluded that, "[d]efendant cannot show that the
jury would have credited any testimony of [Hinds] over the other witnesses'
testimony." We add that Judge Kelly's credibility assessment was based in part
of his ability to observe Hind's evidentiary hearing testimony. We therefore
accept the PCR court's finding and conclude that defendant has failed to
establish the second prong of Strickland with respect to the failure to call Hinds
as a witness.
C.
We next address defendant's claim that counsel was ineffective for failing
to call codefendant Welch's mother, Arnetta Welch. Ms. Welch, who rented and
resided in the house where the killings occurred, provided a certification
claiming that she had been willing to testify that she did not see defendant
assaulting Muriah Huff. She also claimed in her certification that defendant's
trial counsel had never reached out to her.
A-1446-18T4
44
Ms. Welch did not testify at the PCR evidentiary hearing because she
could not be located. The PCR judge noted that she also could not be located at
the time of defendant's trial despite efforts by both the prosecutor and
defendant's trial counsel to contact her.
The PCR court also found that had Ms. Welch testified at trial in
accordance with her PCR certification, her testimony would not have altered the
outcome. Ms. Welch had previously given a statement to Investigator Tulane
claiming she did not witness either of the murders. Additionally, Ms. Welch
was not in her son's bedroom when Hawkins was murdered. Furthermore, she
had been taken to her own bedroom at an early stage in the assault upon Muriah
Huff. Presumably, she was removed and isolated to her bedroom so that she
would not be an eyewitness when the attack on Huff escalated to lethal force.
Because she did not have opportunity to observe either homicide, she had no
way of knowing whether, when, and to what extent defendant became involved
in either attack. Her prior statement to police that she had been isolated in her
bedroom, in other words, would have impeached any testimony she might have
given that defendant was not involved in the murders. We therefore affirm t he
PCR court's ruling that it was not reasonably probable that the trial outcome
would have been different had she testified. Strickland, 466 U.S. at 687.
A-1446-18T4
45
XIII.
Finally, we reach defendant's last contention, raised for the first time on
appeal in his pro se brief that Darryl Pierre, a fellow gang member involved in
the murders, is prepared to recant his trial testimony. Because defendant did not
raise this newly discovered evidence claim in his PCR petition, he is
procedurally barred from raising it in this appeal. As a general proposition,
appellate courts "decline to consider questions or issues not properly presented
to the trial court when an opportunity for such a presentation is available unless
the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20
(2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). The
reliability and potential impact of Pierce's possible recantation is not an issue
that goes to the jurisdiction of the trial court. Nor is it a matter of great public
interest within the meaning of this basic principle of appellate practice and
procedure.
Aside from any procedural bar, we decline to exercise original jurisdiction
in determining whether Pierre's anticipated recantation is reliable and whether
it would have had an impact on the verdict in view of the of the other evidence
adduced by the State. See State v. Santos, 210 N.J. 129, 142 (2012) (explaining
A-1446-18T4
46
that Rule 2:10-5 allows an appellate court to exercise original jurisdiction, but
by exercising original jurisdiction, the court "would be addressing an
evidentiary matter that should be addressed, on the record, in the first instance,
by the [trial] court"); see also State v. Carter, 69 N.J. 420, 427 (1976) ("Courts
generally regard recantation testimony as suspect and untrustworthy." (citation
omitted)).
Any additional arguments raised by defendant on appeal that we have not
already addressed lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2).
Affirmed.
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47