STATE OF NEW JERSEY v. MARVIN SHERWOOD (10-11-2711, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 9, 2022
• Docket: A-3212-20
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3212-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN SHERWOOD,

Defendant-Appellant. ___________________________

Submitted June 7, 2022 – Decided August 9, 2022

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-11-2711.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Designated Counsel, on the brief).

William Reynolds, Acting Atlantic County Prosecutor, attorney for respondent (Alyssa M. Gilboy, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Marvin Sherwood appeals from a Law Division order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing.

Before us, he presents the following arguments:

POINT I

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM COUNSEL.

A. Counsel was Ineffective for Failing to Request an Accomplice Liability Charge.

B. Counsel was Ineffective for Failing to File a Motion to Suppress and for Failing to Object to Numerous Trial Errors.

POINT II

THE PCR JUDGE ERRED IN FINDING THAT THIS PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED.

Having reviewed the record considering the applicable legal standards, we are

unpersuaded by defendant's arguments and affirm substantially for the reasons

set forth by the PCR judge in her written decision.

A-3212-20 2 I

The procedural history and trial evidence are detailed in our unpublished

decision affirming defendant's conviction and sentence on direct appeal, State

v. Sherwood, No. A-3097-12 (App. Div. Dec. 16, 2015), and in the PCR judge's

written decision issued April 13, 2021. A brief summary of the relevant facts

and proceedings will suffice here.

In the early morning hours of August 3, 2010, a male assailant entered the

Atlantic County home of an eighty-nine-year-old woman, who lived alone. The

assailant sexually assaulted the victim twice; threatened to kill her with a knife;

and stole her cell phone, jewelry, and wallet. Before leaving the house, the

assailant attempted to clean the evidence of his crimes. However, the ensuing

police investigation discovered DNA evidence in the victim's home and on

objects––including a knife––found in a trashcan a few blocks from the victim's

home linking defendant as the assailant. Following his arrest and after being

given Miranda1 warnings, defendant gave a statement admitting that he entered

the victim's home but did so only with the intent to commit a theft. He claimed

he was accompanied by an Atlantic City man he identified only as "Streets," but

left him at the victim's house when Streets became violent with her. He stated

1 Miranda v. Arizona, 384 U.S. 436 (1966). A-3212-20 3 he did not witness any sexual assaults. Defendant's trial testimony differed

from his statement. He told the jury that he did not witness any physical violence

against the victim. He also testified that Streets wielded the knife to frighten

the victim, and defendant accidentally cut his hand on the knife.

The State presented evidence that Justin Street, the man defendant

identified in a photograph as his accomplice, lived in Essex County and was five

feet, five inches tall, significantly shorter than the man the victim described as

her lone six-foot-tall attacker. Also contradicting defendant's claim of a second

assailant, the State's expert opined that the only footprints police found at the

scene matched defendant's shoes, and a police canine found the scent of only

one person leading away from the victim's house. Despite the State's evidence,

the trial judge granted defendant's request and instructed the jury regarding

third-party guilt––the claim that Streets attacked and sexually assaulted the

victim. An accomplice liability charge was not requested by either party.

The jury rejected defendant's defense, finding him guilty of all fifteen

charges: second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree

bodily injury burglary, N.J.S.A. 2C:18-2; first-degree armed robbery, N.J.S.A.

2C:15-1; first-degree aggravated sexual assault during a burglary, N.J.S.A.

2C:14-2(a); first-degree aggravated sexual assault with a weapon, N.J.S.A.

A-3212-20 4 2C:14-2(a); first-degree aggravated sexual assault of a physically helpless

person, N.J.S.A. 2C:14-2(a); second-degree attempt to commit sexual

penetration, N.J.S.A. 2C:5-1 and 2C:14-2(a); second-degree attempt to commit

sexual penetration while armed, N.J.S.A. 2C:5-1 and 2C:14-2(a); second-degree

attempt to commit sexual penetration of a physically helpless person, N.J.S.A.

2C:5-1 and 2C:14-2(a); third-degree aggravated assault with a deadly weapon,

N.J.S.A. 2C:12-1(b)(2); third-degree significant bodily injury aggravated

assault, N.J.S.A. 2C:12-1(b)(7); third-degree terroristic threat, N.J.S.A.

2C:12-3(b); fourth-degree tampering with physical evidence, N.J.S.A.

2C:28-6(1); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A.

2C:39-5(d); and third-degree possession of a weapon, a knife, for an unlawful

purpose, N.J.S.A. 2C:39-4(d). Upon defendant's waiver of a jury, the court

found defendant guilty of fourth-degree possession of a weapon by a convicted

person, N.J.S.A. 2C:39-7.

On September 27, 2012, defendant's judgment of conviction was entered

sentencing him to an aggregate sentence of fifty-seven years with forty-two-and-

a-half-years of parole ineligibility pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and requiring his compliance with Megan's Law, N.J.S.A.

2C:7-2, and parole supervision for life.

A-3212-20 5 On defendant's direct appeal, we "reject[ed] [his] argument that it was

plain error [by the trial court] not to deliver, sua sponte, an accomplice liability

[jury] instruction." Sherwood, slip op. at 16. As for defendant's challenge to

his sentence, we "discern[ed] no error in the court's decision to impose

consecutive sentences," nor was there "error in the court's imposition of

maximum terms for the most serious crimes of which defendant was convicted."

Id. at 19.

After our Supreme Court denied defendant's petition for certification,

State v. Sherwood, 230 N.J. 527 (2017), defendant filed a pro se PCR petition

on December 18, 2017. PCR counsel was subsequently appointed to represent

defendant. The petition contended trial counsel was ineffective because:

(1) she failed to seek an accomplice liability charge; (2) . . . seek suppression of the knife based on chain of custody; (3) . . . object to the presentation of the footprint expert's qualifications; (4) . . . object to the State's use of Power Point presentations [that included the word "GUILTY" during the State's summation]; and (5) . . . ask the court to voir dire or excuse a crying juror.

After hearing argument, the PCR judge issued a written decision denying

defendant's petition without an evidentiary hearing and memorialized his ruling

in a confirming order. Despite acknowledging that based on the five-year

limitation period to file a PCR petition under Rule 3:22-12(a)(1), and finding

A-3212-20 6 defendant's filing was about three months late, the PCR judge determined it was

appropriate to relax the application of the rule pursuant to Rule 1:1-2 based on

the interests of justice. Applying the well-recognized two-prong test to establish

ineffectiveness of counsel, Strickland v. Washington, 466 U.S. 668, 687 (1984)

and State v. Fritz, 105 N.J. 42, 58 (1987), the judge found that none of

defendant's evidence established a prima facie case of ineffective assistance of

counsel.

In this appeal, defendant renews the same ineffective assistance claims

raised before the PCR judge, contending she erred in denying him relief. We

address these contentions in turn.

Accomplice Liability Jury Charge

Contrary to defendant's contention, there was no clear error capable of

producing an unjust result when counsel did not request an accomplice liability

charge. Under Rule 3:22-5, PCR claims that are "identical or substantially

equivalent" to claims addressed on direct appeal, are procedurally barred. State

v. Marshall, 173 N.J. 343, 351 (2002); see also State v. Goodwin 173 N.J. 583,

593 (2002) ("defendant may not employ post-conviction relief . . . to relitigate

a claim already decided on the merits . . . .").

A-3212-20 7 On direct appeal, we held that an accomplice liability charge was

unwarranted given "the utter lack of evidence that there was a second

participant," thus "the omission of the charge was harmless beyond a reasonable

doubt." Sherwood, slip op. at 15. In addition, we pointed out "the court's

third-party guilt charge acknowledged that 'evidence has been introduced that a

person other than the defendant committed the crimes charged'" and "[t]he court

instructed the jurors that if they had reasonable doubt that defendant committed

the crimes charged, they should find him not guilty." Id. at 16. Hence, the PCR

judge correctly determined this court's direct appeal ruling regarding the lack of

an accomplice liability charge dictates that the contention in defendant's petition

is procedurally barred.

Suppression of the Knife Based on Chain of Custody

There is no dispute that counsel did not formally move to suppress the

knife. However, the trial court held a Rule 104 hearing regarding the chain of

custody for the knife and determined the knife was admissible trial evidence.

The judge noted that counsel attempted to prevent evidence relating to the knife,

along with other evidence, once she received the police report just prior to trial.

Counsel objected to the report as "'attempting to tie up loose ends' with regard

to the chain of custody and asserted the State's last production of discovery

A-3212-20 8 'extremely prejudice[d]' [defendant]." Thus, the PCR judge correctly reasoned,

"the relief sought by trial counsel—preclusion of the evidence from the State's

case—was the functional equivalent." Moreover, given the other overwhelming

evidence against him, defendant has not shown that a different outcome would

have occurred had the knife been excluded as evidence.

Objection to the Footprint Expert's Qualifications

Defendant argues that trial counsel's failure to object to the qualification

of the State's witness "as an expert in 'forensics and other matters' permitted the

State to improperly 'bolster the credibility of the witness with irrelevant

expertise.'" We disagree.

The record shows that trial counsel not only objected to the State's expert

but also to the footprint analysis offered by the witness by attempting to suppress

the analysis due to the State's late production of the opinion. The trial court

rejected the contention because the State's decision to present the expert was to

rebut defendant's claim that it was Streets who physically and sexually

brutalized the victim. The court permitted the expert to testify in his " field of

forensic science and criminalistics with respect to footprint analysis."

We discern no reason to upset the PCR judge's finding that because the

expert's testimony was restricted to his training and experience involving

A-3212-20 9 footprint identification qualifications, he was competent to testify and there was

no showing that defendant was prejudiced by counsel's decision not to object to

the expert's qualifications.

Thus, the PCR judge did not find that trial counsel's position on the

expert's qualifications "failed to meet the standard of 'reasonable competence,'"

nor could the judge find that defendant "was prejudiced by trial counsel's

performance in this regard." We agree with the judge.

Object to the State's "Guilty" PowerPoint Presentation

Defendant contends trial counsel was ineffective for failing to review the

PowerPoint presentation used by the State in its summation and failing to object

"to the final slide, which repeatedly 'flashed the word GUILTY . . . in large white

letters.'" Citing State v. Rivera, 437 N.J. Super 434 (App. Div. 2014), defendant

maintains this was improper because it was a nonevidential personal opinion of

the prosecutor meant to "inflame the jury." We disagree.

First, as the PCR judge recognized, our Supreme Court "declined to adopt

a rule requiring the State to provide criminal defendants with copies of its

PowerPoint presentations before openings and closings." State v. Williams, 244

N.J. 592, 616-17 (2021). Second, the judge found that because the word

"GUILTY" in the presentation reflected the State's position based upon its view

A-3212-20 10 of the evidence, it did not have an improper prejudicial effect on the jury.

According to the judge, the PowerPoint presentation was no different than the

prosecutor verbally stating in summation the defendant was "guilty." We

conclude her analysis was sound and there is no basis to disturb the judge's

finding.

Object to Voir Dire or Excuse a Crying Juror

Defendant contends trial counsel was ineffective for her failure to ask the

trial court to question the juror counsel believed was upset and cried during the

State's opening statements. We agree with the PCR judge that defendant failed

to show counsel was ineffective because the record clearly shows that counsel

expressed her concern about the juror to the trial court. Neither the trial court

nor the State saw the juror cry. After hearing the State's objection to questioning

the juror, the trial court decided not to do so at the time but stated he would

revisit the situation if the juror appeared to be distraught. Apparently. there was

no further concerns because neither the court nor the parties observed any juror

becoming emotional thereafter. The PCR judge further noted that defendant

failed to demonstrate any prejudice caused by counsel's action or inaction.

There is no basis to disturb the judge's finding.

A-3212-20 11 Because defendant failed to set forth a prima facie case of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing. See State

v. Preciose, 129 N.J. 451, 462 (1992).

To the extent we have not discussed any other arguments raised by

defendants lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

A-3212-20 12