State of New Jersey v. Dewayne R. Anderson

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4084-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEWAYNE R. ANDERSON, a/k/a WAYNE R. ANDERSON, and WAYNE ANDERSON,

Defendant-Appellant. ____________________________

Submitted May 19, 2026 – Decided June 24, 2026

Before Judges Gilson and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-06-0570.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Jeffrey L. Weinstein, Designated Counsel, on the brief).

Janetta D. Marbrey, Mercer County Prosecutor, attorney for respondent (Alexander Gilbert, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Dewayne R. Anderson appeals from a July 11, 2024 order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing. We affirm.

On January 30, 2011, at approximately 1:00 a.m., Trenton Police

Department officers were conducting surveillance near 180 Walnut Avenue in

Trenton. They observed defendant and his sister, co-defendant Tina Anderson,

sitting on the front porch interacting with numerous other individuals and

suspected they were selling controlled dangerous substances (CDS).1

As the officers approached, Tina threw an object through the open front

door into the building. After she was detained, a detective entered the building

and saw defendant running away from the basement door at the end of the

hallway. When the detective looked into the basement, he saw a 9mm handgun;

a quantity of suspected CDS crack cocaine in Ziploc bags; two socks containing

marijuana; two digital scales; cash; packaging material; and drug paraphernalia.

Defendant and Tina were arrested. When searched incident to her arrest, Tina

was found to be in possession of "crack cocaine and marijuana . . . packaged for

sale . . . in distributable amounts."

1 Because defendant and his sister share a common surname, we refer to Tina Anderson as Tina. No disrespect is intended. A-4084-23 2 Defendant and Tina were indicted and charged with multiple CDS and

weapons offenses. Unfortunately, Tina died days before trial. Defendant was

found guilty on all counts following a jury trial and sentenced on August 5,

2016. We affirmed defendant's conviction and sentence. State v. Anderson, No.

A-4710-16 (App. Div. April 24, 2019). Our Supreme Court denied defendant's

petition for certification. State v. Anderson, 240 N.J. 14 (2019).

Defendant filed a timely petition for PCR. Relevant to this appeal, he

argued defense counsel was ineffective because he failed to: (1) subpoena two

witnesses for trial, Camille Campbell and Cornell Pagler, who provided written

statements to a defense investigator that contained exculpatory information; (2)

seek the admission of those exculpatory statements as statements against interest

pursuant to N.J.R.E. 803(c)(25) 2; and (3) pursue a strategy of third-party guilt

by arguing it was Tina who "actually possessed the illegal drugs."

Defendant argued that on March 30, 2011, a defense investigator, Bud

Didonato, obtained a written statement from Campbell, who resided at 180

Walnut Avenue in Trenton. Campbell stated that "[o]n April 19, 2010[, she] left

[her] home to go to" a casino and "left [her] keys with . . . Tina's cousin to give

2 Effective July 1, 2024, N.J.R.E. 803(c)(25) was relocated to N.J.R.E. 804(b)(3). A-4084-23 3 to Tina" because Tina came "to [Campbell's] house every day to 'hang[]out.'"

Campbell stated "[t]he marijuana belonged to [her]." The same day, Didonato

obtained a written statement from Pagler who stated "[o]n April 19, 2010[, he]

was not at 180 Monmouth when police raided the house" and he would "accept

responsibility for the cocaine and the weapon that police found in the house."

Over four years later, on September 10, 2015, Didonato executed a

certification stating that "the date in [Campbell's] signed statement of April 19,

2010, is incorrect and should reflect the correct date of January 30, 2011."

Didonato did not address the same error in Pagler's statement or the fact that the

address is incorrectly identified as "180 Monmouth" in his statement.

On April 26, 2024, the court conducted an evidentiary hearing at which

defendant's trial counsel testified as the only witness. Defense counsel testified

that he interviewed Campbell and Pagler and determined they would not be

"good exculpatory witnesses in that they both seemed to be on drugs" and were

"scatterbrained as far as what they would testify to." "[E]very time [he] spoke

to them . . . they were[] at least high, if not drunk."

Counsel believed Campbell and Pagler "were . . . customers" of defendant

and Tina and "gave off a vibe that they were helping a friend" and "[t]here was

a chance they were lying to [him]." He believed "they had an arrangement

A-4084-23 4 where . . . [t]hey would let [defendant and Tina] use the place to sell drugs and

they would get some drugs out of it" and "would say anything . . . to support the

[people] that[ were] supplying [them] with these drugs."

He decided not to serve them with subpoenas because "[t]hey already

did[ not] want to come in" and he "thought that giving them a subpoena and

making them come in . . . would change their testimony." Instead, he attempted

to have them appear voluntarily, but they did not. If they did appear, counsel

intended to "see their demeanor upon . . . arrival to see if [they] were going to

call them or not. Because [he] had talked to them before and they were[ not]

coherent, they were[ not] helpful." He was "concerned with putting [them] on

the stand . . . because [he] did[ not] know what they would say in cross-

examination."

Defense counsel entered into a stipulation with the State "that there would

be no mention of Tina" because if the jury heard she was arrested with

"drugs . . . on her and that being his sister and being as tight as they were" the

jury would "view it as them doing business together, as . . . a team." He was

concerned defendant and Tina were "there for hours" and defendant was "not

there just hanging out. If [Tina was] selling drugs, [defendant was] selling drugs

A-4084-23 5 too." Counsel was concerned "if [he] suggested that [Tina] was complicit in any

drug dealing, then it would suggest to the jury . . . [defendant] was as well."

Counsel also explained he did not attempt to introduce the statements

Didonato obtained because "they[ were] a different date and [Pagler's contained]

a different address" and were not exculpatory "on their face." He did not

consider calling Didonato as a witness because doing so "would have subjected

him to cross-examination" with the incorrect statements and the "sloppiness of

his work." In addition, Didonato never corrected the errors in Pagler's statement,

including that he was "talking about the wrong place in [his] statement[]."

On July 11, 2024, the court entered an order denying defendant's petition

supported by a comprehensive written opinion. The court found defendant's trial

counsel's "testimony to be highly credible."

The court concluded defendant's claim that counsel failed to subpoena

Campbell and Pagler failed both prongs of the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984). As to prong one, it

determined counsel "gave an objectively reasonable explanation for [not serving

subpoenas on Campbell and Pagler] that was well within the range of

competence demanded of" defense counsel. As to prong two, the court

concluded "their testimony was likely to hurt . . . [d]efendant rather than help

A-4084-23 6 him" because, based on counsel's testimony, they "had drug issues, came off as

'scatter-brained,' were likely to embellish their testimony in a manner that

[could] hurt the defense, and could come across to jurors as . . . [d]efendant's

customers who were doing his bidding in exchange for drugs and their trial

testimony."

The court found defendant's claim that his counsel failed "to seek

admission of [the statements] through the defense investigator" also failed both

prongs of the Strickland test. It reasoned "[t]he critical inaccuracies contained

in [the] statements made them virtually useless" because "the inaccuracies

[would] have undermined the credibility of . . . Campbell and . . . P[a]gler" and

"would have made [Didonato] appear incompetent and . . . unbelievable." The

court concluded "counsel was not . . . ineffective for failing to call the

investigator . . . because neither the statements [n]or his testimony would have

changed the outcome of the trial."

The court "reache[d] the same conclusion with respect to [d]efendant's

attack on [counsel's] strategic decision not to assert a third-party guilt defense"

by casting "blame on [defendant's] recently deceased sister." It found counsel's

"concern that such an approach could have backfired on his client was entirely

reasonable" and defendant "failed to demonstrate that, even if the defense was

A-4084-23 7 asserted, it would have changed the outcome of the trial given the fact that he

was arrested in close proximity to the drugs while his sister was not even inside

the residence."

On appeal, defendant raises the following arguments for our

consideration:

POINT I

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PURSUE A STRATEGY OF THIRD-PARTY GUILT WHEN HE DECLINED TO PRESENT EVIDENCE THAT OTHER INDIVIDUALS TOOK RESPONSIBILITY FOR THE DRUGS AND FIREARM IN QUESTION.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PURSUE A STRATEGY OF THIRD-PARTY GUILT WHEN HE DECLINED TO PRESENT EVIDENCE THAT TINA ANDERSON ACTUALLY POSSESSED THE DRUGS AND EXERCISED CONTROL OVER THE APARTMENT WHERE THE FIREARM AND ADDITIONAL DRUGS WERE FOUND.

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013).

Where an evidentiary hearing has been held, we should not disturb "the PCR

A-4084-23 8 court's findings that are supported by sufficient credible evidence in the record."

State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash, 212 N.J. at 540). We

review any legal conclusions of the trial court de novo. Id. at 576-77; State v.

Harris, 181 N.J. 391, 419 (2004).

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong Strickland test showing: (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment"; and (2) "the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-prong test). Failure to meet either prong

of the Strickland/Fritz test results in the denial of a petition for PCR. State v.

Parker, 212 N.J. 269, 280 (2012).

Under the first prong, counsel's representation must be objectively

unreasonable. Pierre, 223 N.J. at 578. "The test is not whether defense counsel

could have done better, but whether [they] met the constitutional threshold for

effectiveness." Nash, 212 N.J. at 543. Under the "'second, and far more

difficult, prong of the' Strickland standard," State v. Gideon, 244 N.J. 538, 550

(2021) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)), a defendant "must

show that the deficient performance prejudiced the defense." State v. O'Neil,

A-4084-23 9 219 N.J. 598, 611 (2014) (quoting Strickland, 466 U.S. at 687). To establish

prejudice, "[t]he defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different." Gideon, 244 N.J. at 550-51 (alteration in original) (quoting

Strickland, 466 U.S. at 694).

In demonstrating that counsel's performance was deficient, a defendant

must overcome "a strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 689). Further, because prejudice is not presumed, ibid.,

a defendant must demonstrate "how specific errors of counsel undermined the

reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n. 26

(1984).

Informed strategic choices "are virtually unchallengeable." Strickland,

466 U.S. at 690. Even strategic choices made after limited investigation are

afforded great deference and are assessed for reasonableness. State v. Petrozelli,

351 N.J. Super. 14, 22 (App. Div. 2002). Trial strategy is clearly within the

discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273,

321, (App. Div. 1983), certif. denied, 94 N.J. 531 (1983). A reviewing court

A-4084-23 10 must grant substantial deference to the discretion of counsel in determining

which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005).

Having considered defendant's arguments in light of the record and these

established principles, we discern no basis to disturb the PCR court's well-

reasoned determination that defendant failed to satisfy the Strickland test with

regard to any of his contentions. The court fully explained the basis for its ruling

in its written opinion, which included its determination that trial counsel was

credible and detailed findings of fact and conclusions of law. Accordingly, we

affirm the court's denial of defendant's petition for PCR for the reasons

expressed therein.

Affirmed.

A-4084-23 11