STATE OF NEW JERSEY VS. QUARWEE WALKER (09-03-0975, ESSEX COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-4374-15T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    QUARWEE WALKER,
    Defendant-Appellant.
    Submitted October 11, 2017 – Decided November 3, 2017
    Before Judges Carroll and Leone.
    On appeal from the Superior Court of New
    Jersey, Law Division, Essex County, Indictment
    No. 09-03-0975.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Steven M. Gilson, Designated
    Counsel, on the brief).
    Robert D. Laurino, Acting Essex County
    Prosecutor, attorney for respondent (Stephen
    A.    Pogany,   Special    Deputy    Attorney
    General/Acting   Assistant   Prosecutor,   of
    counsel and on the brief).
    PER CURIAM
    Defendant Quarwee Walker appeals from a March 30, 2016 order
    denying his petition for post-conviction relief (PCR) without an
    evidentiary hearing.              Following our review of the record and
    applicable     law,   we    affirm     the       denial    of   PCR    but    remand     for
    resentencing.
    A grand jury indicted defendant, Bryan Witherspoon, Neil
    Herbert, and others with a series of third-degree drug offenses
    spanning various dates from December 10, 2008 to January 7, 2009.
    Regarding December 10, 2008, defendant was charged with possession
    of   cocaine,     N.J.S.A.        2C:35-10a(1),          distribution        of    cocaine,
    N.J.S.A.   2C:35-5a(1)       and     -5b(3),       and    distribution        of   cocaine
    within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts one to
    three).    Regarding December 11, defendant and Witherspoon were
    charged with the same three substantive offenses (counts five to
    seven), and with conspiracy to possess cocaine with intent to
    distribute, N.J.S.A. 2C:5-2 (count four).                   Regarding December 16,
    defendant and Herbert were charged with the same three substantive
    offenses (original counts nine to eleven), and with conspiracy
    (original count eight).            Regarding January 1, 2009, defendant was
    charged    with   the      same    substantive       offenses         (original      counts
    fifteen to seventeen).            With respect to January 7, 2009, defendant
    was charged with possession of cocaine, possession of cocaine with
    intent    to   distribute,         N.J.S.A.       2C:35-5a(1)         and    -5b(3),     and
    distributing cocaine within 1,000 feet of a school (counts eighteen
    2                                      A-4374-15T1
    to twenty), and identical charges with respect to heroin (counts
    twenty-one to twenty-three).
    Defendant was tried twice.       The jury in the first trial
    acquitted him of counts eighteen to twenty-three relating to
    January 7, 2009.    The jury deadlocked on the remaining charges and
    a mistrial was declared as to those counts.
    Before the second trial, the judge dismissed the original
    count eight conspiracy charge, expanded count four to charge
    conspiracy from December 10 through January 1, and renumbered the
    original counts nine to seventeen as counts eight through sixteen.
    The   jury    thereafter   convicted   defendant   of   conspiring    to
    distribute cocaine from December 10 through January 1 (count four),
    as well as all charged offenses relating to December 10 (counts
    one to three), December 16 (renumbered counts eight to ten), and
    January 1 (renumbered counts fourteen to sixteen).            The jury
    acquitted defendant of the substantive offenses regarding December
    11 (counts five to seven).
    The facts underlying the jury's verdict in the second trial
    are set forth in our opinion in defendant's direct appeal.            We
    repeat them here to lend context to the issues defendant raises
    in the present appeal:
    The State's witnesses were East Orange
    Detectives Lance Merrill, Rahsaan Johnson, and
    Ramon Rodriguez. They presented evidence that
    3                           A-4374-15T1
    [defendant] and Witherspoon conspired to and
    did sell crack cocaine from December 10, 2008,
    through January 1, 2009, including sales on
    December 10, 11, 16, and 30, and on January
    1.   Each sale was made to Merrill, acting
    undercover, with either Johnson or Rodriguez
    observing from twenty-five to fifty feet away.
    The sales occurred between 8:00 and 8:40 p.m.,
    near or on the enclosed front porch of a house
    in an area lit by a streetlamp and by the
    lights of the adjacent high school football
    field and parking lot.      Both Johnson and
    Rodriguez knew [defendant] and Witherspoon
    prior to the events in question.
    On December 10, Johnson observed [defendant]
    drive up in a GMC Yukon registered to
    [defendant].    [Defendant] and Witherspoon
    greeted each other and walked toward the
    house.   Merrill approached [defendant] and
    Witherspoon, asked for crack, and gave
    [defendant] $50. [Defendant] went inside the
    Yukon, emerged, and handed five bags of crack
    to Merrill. [Defendant] and Witherspoon then
    went into the house together.      At trial,
    Merrill and Johnson identified [defendant] as
    the man who sold the crack.
    On December 11, Rodriguez observed Merrill
    approach [defendant] and ask for crack.
    [Defendant] told Merrill to see "B" in the
    house.   Merrill entered the porch and met
    Bryan Witherspoon.      Merrill gave $50 to
    Witherspoon in return for five bags of crack.
    At trial, Merrill and Rodriguez identified
    Witherspoon as the man who sold the crack, and
    [defendant] as the man who directed Merrill
    to the house.
    On December 16, Rodriguez observed [defendant]
    sitting in his Yukon.      Merrill approached
    [defendant] and asked for crack. [Defendant]
    gestured towards the house and told Merrill
    to see "Buzz" — co-defendant Neil Herbert, who
    is Witherspoon's brother. Inside the porch,
    4                          A-4374-15T1
    Merrill gave $100 to Herbert in exchange for
    ten bags of crack.     Merrill and Rodriguez
    identified [defendant] at trial.
    . . . .
    On January 1, Johnson observed as Merrill went
    to the house. [Defendant] pulled up in his
    Yukon and got out. Merrill asked [defendant]
    for crack. [Defendant] got something out of
    his Yukon and motioned for Merrill to come
    with him into the porch. There, [defendant]
    gave Merrill five bags of crack for $50. At
    trial, both Merrill and Johnson identified
    [defendant]. [Defendant] was later arrested
    with $1,110 in cash.
    At trial, [defendant] called his sister
    Hassana McPherson, his brother-in-law Marc
    McPherson, and his fiancée Takiya Knowles, who
    was also the mother of his five children. They
    testified that he was at his son's birthday
    party at or around the time of the December
    11 drug sale. [Defendant] also called Calvin
    Range and Josephine Witherspoon, residents of
    the house, who testified that they were
    friends with [defendant] and Witherspoon, that
    [defendant] and Witherspoon came to play cards
    at the house frequently, and that Range
    frequently borrowed [defendant's] Yukon.
    [State v. Walker, No. A-2528-11 (App. Div.
    Dec. 11, 2013) (slip op. at 2-5), certif.
    denied, 
    218 N.J. 275
    (2014).]
    In October 2011, defendant was sentenced to an aggregate ten-
    year   prison   term   with   five   years   of   parole   ineligibility.
    Appropriate fines and penalties were also imposed.
    On direct appeal, defendant challenged his convictions on the
    basis that the trial court's jury instructions on identification,
    5                            A-4374-15T1
    alibi, and how to consider multiple charges, were erroneous.         
    Id. (slip op.
    at 7-18).     In rejecting defendant's claims of plain
    error,1 we stated:
    The State presented a strong case to support
    [defendant's] convictions. Even if Rodriguez
    and   Merrill    were   mistaken    in   their
    identifications of [defendant] on December 11,
    that does not necessarily mean they were
    mistaken on other days. Such an error gives
    no reason to doubt Johnson's identifications
    of [defendant] on December 10 and January 1,
    or to ignore the corroboration provided by
    [defendant's] use of his Yukon on December 16
    and January 1.
    [
    Id. (slip op.
    at 17-18).]
    Defendant   also   challenged   his   sentence   because   of   the
    confusion that was caused when the original count eight was
    dismissed, and the original counts nine through seventeen were
    renumbered counts eight through sixteen for purposes of the second
    trial.   
    Id. (slip op.
    23-24).       We agreed that this confusion
    resulted in the court's failure to impose a sentence on the
    original count seventeen.   
    Id. (slip op.
    at 24).     Accordingly, we
    vacated the sentences imposed on the original counts nine through
    seventeen and remanded for resentencing on those counts.          
    Ibid. 1 Under the
    plain error standard, we disregard any error or
    omission by the trial court "unless it is of such a nature as to
    have been clearly capable of producing an unjust result."     R.
    2:10-2.
    6                              A-4374-15T1
    As noted, the Supreme Court thereafter denied certification. State
    v. Walker, 
    218 N.J. 275
    (2014).
    Defendant   filed   a   timely       PCR   petition,   supported    by   a
    supplemental   certification   claiming         ineffective   assistance      of
    trial counsel.    Among other things, defendant contended trial
    counsel was ineffective in failing to challenge the surveillance
    location of the back-up police officers and request their location
    be revealed because they "may have been too far away to accurately
    identify the drug seller."       Defendant also alleged that trial
    counsel "led [him] to believe" the testimony of the alibi witnesses
    regarding the December 11, 2008 charges would lead to his acquittal
    on the remaining charges.
    Judge Peter V. Ryan, who had also presided over the second
    trial, issued a sixteen-page written opinion denying defendant's
    petition without an evidentiary hearing.              With respect to the
    officers' surveillance locations, the judge noted "there were
    countless questions and thorough examinations by trial counsel on
    this issue" and "the locations were mentioned in detail[.]"                The
    judge also found "the trial strategy used by defense counsel was
    misidentification[,]"    and    trial       counsel   called    the     "alibi
    witnesses to testify that [d]efendant was not involved in the
    alleged narcotics distribution on December 11, 2008," as a means
    of attacking the police officers' credibility and identifications
    7                               A-4374-15T1
    regarding the remaining dates.       Citing State v. Bey, 
    161 N.J. 233
    ,
    251 (1999), cert. denied, 
    530 U.S. 1245
    , 
    120 S. Ct. 2693
    , 147 L.
    Ed. 2d 964 (2000), the judge concluded "[t]he simple fact that a
    trial strategy fails does not necessarily mean that counsel was
    ineffective."
    On appeal, defendant argues:
    THIS   MATTER   MUST   BE  REMANDED  FOR   AN
    EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
    ESTABLISHED A PRIMA FACIE CASE OF TRIAL
    COUNSEL'S INEFFECTIVENESS.
    A. TRIAL COUNSEL FAILED TO CHALLENGE
    THE SURVEILLANCE LOCATIONS OF THE
    BACK-UP POLICE OFFICERS AND FAILED
    TO REQUEST THAT THEIR LOCATIONS BE
    REVEALED.
    B.    TRIAL  COUNSEL   FAILED    TO
    ADEQUATELY    ADVISE     DEFENDANT
    REGARDING     ADDITIONAL      ALIBI
    WITNESSES AND/OR FAILED TO PURSUE
    THEM.
    Having   considered     defendant's   arguments   in   light    of   the
    record and applicable legal standards, we conclude they lack
    sufficient    merit   to   warrant   extensive   discussion.    R.    2:11-
    3(e)(2).     We affirm substantially for the reasons expressed in
    Judge Ryan's March 30, 2016 written opinion, to which we add the
    following comments.
    The standard for determining whether counsel's performance
    was ineffective for purposes of the Sixth Amendment was formulated
    8                             A-4374-15T1
    in Strickland v. Washington, 
    466 U.S. 668
    , l04 S. Ct. 2052, 80 L.
    Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
    Fritz, l05 N.J. 42 (l987).           In order to prevail on a claim of
    ineffective      assistance     of   counsel,   defendant    must     meet   the
    following two-prong test: (l) counsel's performance was deficient
    and he or she made errors so egregious 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, supra
    , 466 U.S. at 687, 694, l04 S. Ct. at 2064, 
    2068, 80 L. Ed. 2d at 693
    , 698.
    Defendant renews his claim that trial counsel should have
    requested the surveilling detectives' locations be revealed so as
    to   challenge    their    observations.        However,    Merrill   directly
    engaged in the undercover drug purchases and he was able to
    identify defendant from those transactions.            The two surveilling
    officers also knew defendant, and there was extensive questioning
    about their locations, one of which was openly discussed.                 Thus,
    even   if   we   were     to   somehow   conclude   that    trial     counsel's
    performance was deficient, there is no reasonable probability that
    9                              A-4374-15T1
    the result would have been different had the backup officers'
    exact surveillance locations been disclosed.
    Defendant is also unable to satisfy Strickland's second,
    prejudice     prong   with   respect    to    his   claim   that   counsel   was
    ineffective for leading him to believe the testimony of his alibi
    witnesses would lead to his acquittal on all charges.                   In his
    certification, plaintiff asserts that, if properly advised, he
    would have pled guilty to ease the financial strain on his family.
    However, he further avers he would have "pled guilty even though
    I did not commit these crimes."           Given this sworn proclamation of
    innocence, there is nothing in the record that leads us to conclude
    defendant could provide the requisite factual basis for a guilty
    plea.2   Consequently, a trial would have been necessary in any
    event.   We also note, as we did on defendant's direct appeal, that
    the   State    presented     a   strong      case   to   support   defendant's
    convictions, and even if Rodriguez and Merrill were mistaken in
    2
    Trial courts may not accept a guilty plea unless there is a
    factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential
    to elicit from the defendant a comprehensive factual basis,
    addressing each element of a given offense in substantial detail.'"
    State v. Perez, 
    220 N.J. 423
    , 432 (2015) (quoting State v.
    Campfield, 
    213 N.J. 218
    , 236 (2013)).       Trial courts "must be
    'satisfied from the lips of the defendant' . . . that he committed
    every element of the crime charged[.]" 
    Id. at 432-33
    (citations
    omitted).
    10                               A-4374-15T1
    their identifications of defendant on December 11, that does not
    necessarily mean they were mistaken on other days.
    To the extent defendant now argues on appeal that trial
    counsel should have pursued additional alibi witnesses, he does
    not identify them or submit any affidavits or certifications from
    any witness attesting to the alibi.      Defendant's bald assertions
    are insufficient to support this claim.      See State v. Cummings,
    
    321 N.J. Super. 154
    , 170 (App. Div.), certif. denied, 
    162 N.J. 199
    (1999).
    We are satisfied from our review of the record defendant
    failed to make a prima facie showing of ineffectiveness of trial
    counsel under the Strickland-Fritz test.     The PCR court correctly
    concluded an evidentiary hearing was not warranted.     See State v.
    Preciose, 
    129 N.J. 452
    , 462-63 (1992).    Accordingly, we affirm the
    denial of defendant's PCR petition.
    As a final matter, as previously noted, on defendant's direct
    appeal we vacated the sentences imposed on the original counts
    nine through seventeen and remanded for resentencing on those
    counts.   Although the parties have not raised the issue, we are
    advised there is no record that defendant was ever resentenced.
    We therefore remand for resentencing in accordance with our prior
    opinion in No. A-2528-11, and direct the resentencing be completed
    within sixty days.
    11                            A-4374-15T1
    Affirmed, and remanded for resentencing.   We do not retain
    jurisdiction.
    12                         A-4374-15T1
    

Document Info

Docket Number: A-4374-15T1

Filed Date: 11/3/2017

Precedential Status: Non-Precedential

Modified Date: 4/17/2021