STATE OF NEW JERSEY VS. KEVIN LLOYD (09-10-2752, 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NOT FOR PUBLICATION WITHOUT THE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-2657-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN LLOYD, a/k/a
CHRIS BARRETT, and
DEVIN KEITH,
Defendant-Appellant.
Submitted May 12, 2020 – Decided June 26, 2020
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 09-10-2752.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Kevin Lloyd appeals from the denial of his petition for post -
conviction relief (PCR), contending trial and appellate counsel were ineffective,
and the PCR court improperly denied his petition without an evidentiary hearing.
We affirm.
The detailed circumstances leading to defendant's arrest and charges were
set forth in our opinion in defendant's direct appeal. We need not repeat them
here. State v. Lloyd, No. A-0684-13 (App. Div. July 6, 2016).
Essentially, Terrell Smith was shot in the back after being chased by the
shooter through a shopping center into a parking lot across the street and into a
residential area. Id. at 1-2. Two security officers working in the mall described
the shooter to police. Id. at 3.
Surveillance footage was obtained from cameras in several stores and in
the mall. Defendant was identified as the shooter. The shirt he was wearing at
the time of the shooting was discarded and later recovered. Defendant's DNA
was found on the shirt. Several witnesses in the mall identified defendant in a
photo array. Smith told the police and grand jury he never turned around during
the chase and therefore he did not know who the shooter was.
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Joseph Sterling, a maintenance man and night watchman who had
witnessed the shooting, told police he knew the shooter; he identified him from
the photo array, but stated he only knew him by the name "Mousey." During
trial, however, Sterling said he had no recollection of the events surrounding the
shooting, it had occurred before he arrived at the mall and he had no recollection
of the statement he had given to police. After a N.J.R.E. 104 hearing, the court
admitted Sterling's prior recorded statement. The victim, Smith, did not testify
at the trial.
Defendant was convicted by a jury in 2011 of attempted murder and
several weapons offenses. He moved for a new trial, presenting a statement
from Smith who recanted the testimony he had given before the grand jury.
Smith now stated he knew who the shooter was, and it was not defendant.
During an evidentiary hearing, Smith testified he lied to the grand jury because
he was scared of the shooter. Smith admitted he was incarcerated with defendant
in the same correctional facility for approximately eighteen months although he
denied knowing defendant was in the jail or that defendant was awaiting trial
for shooting him. In denying the motion for a new trial, the trial court found
Smith's recantation of testimony was not credible or reliable.
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Defendant was sentenced to life in prison without parole. On appeal, we
affirmed the convictions but remanded for resentencing. Id. at 1.
On remand, defendant was sentenced to an extended term of thirty years
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appealed. We
remanded again, finding the trial court had not provided sufficient reasons for
the imposition of an extended term. State v. Lloyd, No. A-2803-17 (App. Div.
Dec. 5, 2018). The Supreme Court thereafter denied defendant's petition for
certification. State v. Lloyd, 238 N.J. 357 (2019).
Defendant filed a pro se PCR petition in 2016, and thereafter, assigned
counsel filed a brief. Defendant asserted trial counsel was ineffective for failing
to: (1) retain a DNA expert and to contest the DNA evidence; (2) challenge the
shirt he allegedly wore at the time of the crime; (3) interview witnesses,
including Smith; (4) object to the identification made by Sterling; and (5) obtain
transcripts of Sterling's testimony. Defendant also alleged appellate counsel was
ineffective in failing to raise certain issues on appeal.
The PCR court granted an evidentiary hearing. In addition to defendant,
a paralegal from defendant's trial counsel's office testified at the hearing in
March 2018. Defense counsel had passed away prior to the proceeding.
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In an oral decision issued August 22, 2018, the PCR court found defendant
"failed to provide any legal or evidentiary basis to support his claims of
ineffective assistance of counsel as to either trial or appellate counsel . . . ." The
court noted defendant "was not responsive to questions posed, argumentative, at
times confrontational and at times attempted to avoid the questions asked." The
court characterized defendant's testimony as "lack[ing] total credibility or
reliability."
In addressing each of defendant's allegations of ineffective assistance of
trial counsel, the PCR court found counsel had made decisions and employed
trial strategies "well within [his] purview." Defendant proffered names of
witnesses that he stated should have been interviewed or called to testify.
However, defendant failed to explain what testimony these witnesses might have
offered or how their testimony could have affected the outcome of the case. The
court stated that defendant's allegations were "bald assertions," unsupported by
any facts. The PCR court also reviewed the allegations of ineffective assistance
against appellate counsel and rejected them, finding no deficiency in counsel's
representation.
In conclusion, the PCR court stated, "Having presided over th[e] trial of
this matter there is no doubt in this [c]ourt's mind that [defendant] was convicted
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by a jury of his peers on the overwhelming evidence of guilt presented by the
State as opposed to any alleged ineffective assistance of either trial or appellate
counsel." The court noted the surveillance video, statements of witnesses, the
identification of defendant as the shooter by witnesses and Sterling, and the
DNA evidence. The PCR petition was denied.
On appeal, defendant presents the following issues:
TRIAL COUNSEL'S NEGLECT TO ADEQUATELY
COMMUNICATE WITH DEFENDANT, TO
PROPERLY INVESTIGATE THE CASE, AND TO
INTERVIEW AND PRODUCE WITNESSES
CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS FOR INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF
B. FAILURE TO COMMUNICATE, INVESTIGATE
AND CALL WITNESSES
In a pro se supplemental brief, defendant reiterates his counseled
arguments and renews additional arguments presented before the trial court:
POINT I: [THE] PCR COURT ABUSED ITS
DISCRETION WHEN IT DENIED THE
APPELLANT'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM WHERE TRIAL COUNSEL
FAILED TO INVESTIGATE AND PRESENT A
COMPLETE DEFENSE, VIOLATING THE
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APPELLANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO COUNSEL AND A FAIR
TRIAL
POINT II: [THE] PCR COURT ERRED WHEN IT
DENIED THE APPELLANT'S INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM THAT TRIAL
COUNSEL FAILED TO HAVE THE TRANSCRIPTS
OF A WITNESS JOSEPH STERLING'S
INCONSISTENT TESTIMONY ADMITTED INTO
EVIDENCE WITH HIS AUDIO RECORDED
STATEMENT THAT THE STATE HAD ADMITTED
AS HIS TESTIMONY, VIOLATING THE
APPELLANT'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO DUE PROCESS OF
LAW, WHEREFORE THE CONVICTION MUST BE
SET ASIDE AND A NEW TRIAL MUST BE
GRANTED
POINT III: [THE] PCR COURT ERRED WHEN IT
DENIED THE APPELLANT'S INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM WHERE
TRIAL COUNSEL FAILED TO CONTEST THE
POLICE PROCEDURE WHICH WAS USED WHEN
THE INVESTIGATING OFFICERS FAILED TO
FOLLOW THE ATTORNEY GENERAL GUIDELINE
OF APRIL 18, 2001, VIOLATING THE
APPELLANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO DUE PROCESS OF
LAW, WHEREFORE THE CONVICTION MUST BE
SET ASIDE AND A NEW TRIAL GRANTED
POINT IV: [THE] PCR COURT ABUSED ITS
DISCRETION WHEN IT DENIED THE
APPELLANT'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM WHERE TRIAL COUNSEL
ADMITTED THAT HE WAS INEFFECTIVE BY
INITIALING AND WRITING ON TWO SHEETS OF
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PAPER SEVERAL ISSUES WHERE HE WAS
INEFFECTIVE, VIOLATING THE APPELLANT'S
FIFTH, SIXTH AND FOURTEENTH AMENDMENT
RIGHTS TO DUE PROCESS OF LAW,
WHEREFORE THE CONVICTION MUST BE SET
ASIDE AND A NEW TRIAL GRANTED
The standard for determining whether trial counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-prong test establishing both
that: (l) counsel's performance was deficient and he or she made errors that were
so egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.
The same standard applies to appellate counsel. State v. O'Neil, 219 N.J. 598,
610 (2014) (citation omitted).
We are satisfied from our review of the record that defendant failed to
demonstrate trial and appellate counsel were ineffective under the Strickland-
Fritz test. Defendant has not proffered how the testimony of a defense DNA
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expert might have changed the outcome of the case. Nor has he presented
affidavits from any witnesses he asserts should have been interviewed and called
to testify at trial. Without any factual underpinning, defendant's allegations are
nothing more than "bald assertions," and cannot suffice to establish a prima facie
case of ineffective assistance of counsel. See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999).
In addition, defendant challenges his trial and appellate counsel's strategic
decisions. As our Supreme Court has stated, "An attorney is entitled to 'a strong
presumption' that he or she provided reasonably effective assistance, and a
'defendant must overcome the presumption that' the attorney's decisions
followed a sound strategic approach to the case." State v. Pierre, 223 N.J. 560,
578-79 (2015) (quoting Strickland, 466 U.S. at 689). Given the deference due
to the PCR court's factual findings and credibility assessments, we are satisfied
defendant's allegations do not meet the Strickland standard of deficient
performance. Moreover, defendant has not demonstrated that any of the alleged
deficiencies would have changed the outcome.
Because his petition was based on bald assertions and did not present a
prima facie case of ineffective assistance of counsel, defendant was not entitled
to an evidentiary hearing and the petition was properly denied. See State v.
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Preciose, 129 N.J. 451, 462 (1992). Any remaining arguments are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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