NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0747-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DYSHON RAGLAND, a/k/a RAGLAND DYSHON,
Defendant-Appellant. ___________________________________
Submitted January 23, 2018- Decided July 27, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10- 07-1359.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; John C. Tassini, Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Dyshon Ragland appeals the July 18, 2016 denial of
his motion for post-conviction relief (PCR). We affirm.
I.
The facts are detailed in our prior opinion. State v.
Ragland, No. A-5993-10 (App. Div. Nov. 7, 2013), certif. denied,
217 N.J. 590 (2014). We summarize, highlighting portions pertinent
to this appeal.
On February 27, 2008, defendant and two juveniles including
Anthony Skyers, all members of a Bloods street gang, entered a
Subway restaurant in Toms River. Defendant pointed a gun at the
cashier and robbed the restaurant. Z.J., defendant's girlfriend
with whom he was living, testified defendant said he did the
robbery and Skyers was present with him. Z.J. also testified that
when defendant heard he was wanted for the robbery, he moved out
of Z.J.'s apartment and went to Virginia for about two weeks.
On June 5, 2008, Skyers was arrested for underage possession
of alcohol, and his companion was arrested for supplying a minor
with alcohol. Skyers was immediately released with a summons, but
the companion was held.
According to Z.J., the companion's sister telephoned
defendant at approximately 5:30 or 6:00 p.m. that evening.
Although Z.J. could hear only one side of the telephone
conversation, she heard defendant say, "I hope he didn't do what
2 A-0747-16T2 I think that he's done" and "if he did what I think he did, I'm
just going to have to shut him up." After the conversation ended,
defendant told Z.J. that he was referring to Skyers, who had just
been "picked up and locked up by the police" along with the
companion. Z.J. also testified defendant received other upsetting
telephone calls about Skyers in which defendant stated that he was
"just going to take care of the situation and eliminate the
problem."
Z.J. testified that at approximately 7:00 p.m., defendant
left Z.J.'s apartment, telling her that he was "going around the
corner," and that he returned after 9:40 p.m. At 9:00 p.m., a
person living near a wooded trail heard two gunshots.
After 10:00 p.m., defendant took a fellow Bloods member C.B.
along the wooded trail to where Skyers's body lay with a bullet
hole in his head. Defendant said he shot Skyers and "this is what
happens to snitches." C.B. was aware defendant "didn't want
[Skyers] . . . around" because Skyers had "snitch[ed] on the Subway
robbery."
Z.J. testified that, after midnight, co-defendant Dennis
Thigpen, Jr. arrived and looked "spooked," that defendant had a
meeting with Thigpen, and that defendant told her only "something
bad just happened." Later, after the police told her Skyers was
3 A-0747-16T2 dead, defendant told her "he was there but he wasn't the one that
done it."
Defendant was taken into custody for the robbery, and made
incriminating statements. While being held in the county jail on
the robbery charge, defendant befriended fellow prisoner Charles
Anderson. According to Anderson, defendant spoke about the Subway
robbery and Skyers's murder multiple times. Anderson also claimed
defendant asked him to write a letter to the prosecutor, informing
that an individual named D-Bow committed the murder. Instead,
Anderson wrote a letter to the prosecutor seeking to be released
on his own recognizance in exchange for information about the
Subway robbery and Skyers's murder.
After meeting with detectives, Anderson agreed to wear a
wireless recording device so that further information could be
collected directly from defendant. Anderson was returned to his
original lodging in the jail. Defendant's "consensual intercept"
conversation with Anderson was recorded and played for the jury.
In October 2008, defendant confronted Anderson with what
appeared to be a police report, stating that Anderson had told the
police that defendant committed the Subway robbery. Defendant
said if Anderson did not write a letter stating defendant had not
committed the robbery, Anderson would be "food," meaning that he
would be targeted for an assault or death. Feeling threatened,
4 A-0747-16T2 Anderson wrote a letter recanting everything he had told the
prosecutor's office about defendant, as well as the information
contained in the "consensual intercept."
Jacarlos McKoy, a fellow inmate with defendant and Anderson
in the county jail, became a member of the Bloods street gang
while incarcerated on October 31, 2008, but dropped out of the
gang in 2010. McKoy testified that defendant approached him in
the jail's recreation yard near the end of 2008, asking him "how
. . . [McKoy] was living with a snitch?" Defendant showed McKoy
a paper suggesting that Anderson was cooperating with law
enforcement authorities, and indicated that defendant would
increase McKoy's rank in the street gang if he assaulted Anderson.
McKoy recruited fellow inmate Jashon Brinson to help with the
assault because Anderson was "not really a small guy."
On March 12, 2009, Brinson and McKoy assaulted Anderson. As
sheriff's officers were rescuing Anderson, he saw defendant
laughing at him and saying, "[H]ey, they got you, they got you,
they F you up." Later, when defendant and McKoy were then housed
together in the county jail, defendant told McKoy that he
"executed" Skyers with a revolver because he thought Skyers "was
snitching about a Subway robbery."
Defendant was convicted of first-degree armed robbery,
N.J.S.A. 2C:15-1; first-degree conspiracy to commit murder,
5 A-0747-16T2 N.J.S.A. 2C:5-2 and 2C:11-3; first-degree purposeful or knowing
murder of Skyers, N.J.S.A. 2C:11-3(a) or (b); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a); third-degree aggravated assault against Anderson, N.J.S.A.
2C:12-1(b)(7); third-degree conspiracy with McKoy, Brinson, or
both to commit witness tampering against Anderson, N.J.S.A. 2C:5-
2 and 2C:28-5(a); and third-degree witness tampering against
Anderson, N.J.S.A. 2C:28-5(a)(1). The trial court sentenced him
to sixty-two years in prison, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's August 6, 2011 judgment of
conviction. The Supreme Court denied certification in June 2014.
Defendant filed a pro se PCR petition on July 22, 2014. The
PCR judge dismissed the petition. Defendant appealed and we
vacated and remanded for assignment of PCR counsel, who filed a
PCR brief. After hearing argument and some sworn testimony from
defendant, the PCR judge denied the petition on July 18, 2016.
Defendant's counseled brief raises the following claims:
POINT I – FAILURE OF THE PCR COURT TO GRANT THE DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL AND DISCOVERY VIOLATION WAS ERROR.
A. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
6 A-0747-16T2 B. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.
C. THE STATE'S FAILURE TO PROVIDE DISCOVERY REGARDING MONETARY PAYMENTS PAID TO STATE WITNESSES DEPRIVED MR. RAGLAND OF A FAIR TRIAL.
Defendant's pro se brief raises the identical claims, and is
largely indistinguishable from his counseled brief.
II.
Defendant argues the PCR court erred in denying him an
evidentiary hearing on his ineffective assistance of counsel
claim. "A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie [case] in support of
post-conviction relief." R. 3:22-10(b). "To establish a prima
facie case, defendant must demonstrate a reasonable likelihood
that his or her claim, viewing the facts in the light most
favorable to defendant, will ultimately succeed on the merits."
Ibid. To the extent the PCR court did not hold a full evidentiary
hearing, we "conduct a de novo review." State v. Harris, 181 N.J.
391, 419 (2004). We must hew to that standard of review.
To show ineffective assistance of counsel, defendant had to
meet the two-pronged test of Strickland v. Washington, 466 U.S.
668 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). "The
defendant must demonstrate first that counsel's performance was
7 A-0747-16T2 deficient, i.e., that 'counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment.' In making that demonstration, a defendant
must overcome a strong presumption that counsel rendered
reasonable professional assistance." State v. Parker, 212 N.J.
269, 279 (2012) (quoting Strickland, 466 U.S. at 687). Second,
"a defendant must also establish that the ineffectiveness of his
attorney prejudiced his defense. The 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." Id. at 279-80 (quoting Strickland, 466 U.S. at
694).
III.
Defendant argues trial counsel failed to conduct an adequate
investigation into the criminal histories of McKoy and Brinson.
However, "[w]hen a petitioner claims his trial attorney
inadequately investigated his case, he must assert the facts that
an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." State v. Porter, 216
N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999)). Contrary to Rule 3:22-10(c), defendant
8 A-0747-16T2 failed to supply any affidavit or certification, and does not
state what such an investigation would have revealed.
Instead, defendant merely asserts a full investigation would
have revealed the past associations and conduct of McCoy and
Brinson. However, a PCR court shall not grant an evidentiary
hearing "if the defendant's allegations are too vague, conclusory
or speculative." R. 3:22-10(e)(2). "Rather, defendant must allege
specific facts and evidence supporting his allegations." Porter,
216 N.J. at 355.
Defendant supplied the PCR court with an August 29, 2015
statement by Brinson indicating defendant was not involved in the
assault. Defendant has failed to supply that statement to us, in
violation of Rule 2:6-1(a)(1)(I). In any event, Brinson testified
he did not know defendant, had no knowledge of his involvement in
the assault, and was going to assault Anderson regardless at
McCoy's behest. The PCR court properly concluded that "Brinson's
statement, made four years after the conclusion of trial, is
immaterial."
In the PCR court, defendant said he knew Brinson and alleged
he told trial counsel. However, as the PCR court concluded,
whether Brinson knew defendant would not affect the outcome.
Trial counsel had ample information with which he could or
did cross-examine Brinson and McCoy, including: Brinson's two
9 A-0747-16T2 prior drug convictions; McKoy's pending murder charge; their
admitted gang membership; their videotaped assault on Anderson;
their motives to assault Anderson regardless of defendant; their
pending criminal charges arising out of the assault; and their
agreement to testify against defendant and plead guilty to some
charges in return for the concessions by the prosecutor at their
upcoming sentencings. Indeed, trial counsel's efforts were
sufficient to gain acquittals on the charges of second-degree
assault on Anderson, and of witness tampering by employing or
threatening force against Anderson or conspiring to do so.
Defendant has failed to show a prima facie case that trial counsel
was ineffective. See State v. Marshall, 148 N.J. 89, 166-67, 169
(1997).
IV.
Defendant claims trial counsel failed to review all his
intercepted conversations with Anderson and to review them with
him. He also asserts counsel was ineffective for not requesting
a hearing about the electronic enhancement of those conversations,
and calling the person who did the enhancement as a witness.
Before the PCR court, defendant complained the recordings were
redacted. Defendant asserts it was not him on the tape.
However, defendant does not provide any affidavit or
certification or otherwise proffer any evidence that review of the
10 A-0747-16T2 recordings, the redacted portions of the recordings, testimony by
the enhancer, or a hearing would have produced any information
that would have led to the exclusion of the conversations or
otherwise aided defendant. "[I]n order to establish a prima facie
claim, a petitioner must do more than make bald assertions that
he was denied the effective assistance of counsel. . . . [H]e
must assert the facts that an investigation would have revealed,
supported by affidavits or certifications." Porter, 216 N.J. at
355 (quoting Cummings, 321 N.J. Super. at 170).
Finally, defendant claims that the State paid money to Z.J.
for relocation and living expenses before she gave her last
statement, which inculpated defendant. Defendant argues he
discovered this information at the separate trial of Thigpen.
Defendant contends similar payments were made for J.V., the
roommate of Thigpen's girlfriend. Defendant argues the State
failed to provide this information in discovery.
At the PCR hearing, the State indicated it may have paid
relocation expenses because the witnesses feared retaliation for
their testimony. We assume such payments should be disclosed in
discovery. See State v. Jones, 239 N.J. Super. 460, 467 (App.
Div. 1990) (requiring the disclosure of payments to a witness
under Brady v. Maryland, 373 U.S. 83 (1963)).
11 A-0747-16T2 Defendant provided no affidavits or certifications supporting
his claims. He supplied the PCR court with a document allegedly
showing $17,000 in relocation expenses paid on behalf of J.V., but
has failed to supply it to us.1 An appellant must include in the
appendix "such other parts of the record . . . as are essential
to the proper consideration of the issues." R. 2:6-1(a)(1)(I).
"We obviously cannot address documents not included in the record."
State v. Robertson, 438 N.J. Super. 47, 56 n.4 (App. Div. 2014).
Nor are we "obliged to attempt review of an issue when the relevant
portions of the record are not included." Cmty. Hosp. Grp., Inc.
v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381
N.J. Super. 119, 127 (App. Div. 2005); see Cipala v. Lincoln Tech.
Inst., 179 N.J. 45, 54-55 (2004) (upholding our refusal to address
an issue where the appellant failed to provide the relevant portion
of the record).
Defendant argued to the PCR court that "[i]t is Mr. Ragland's
information and belief that [Z.J.] had a similar arrangement"
under which she "was allegedly provided funds and moved." However,
"[a]ny factual assertion that provides the predicate for a claim
of relief must be made by an affidavit or certification pursuant
1 Defendant said he would send the PCR court a similar document regarding Z.J., but the record does not indicate that he did so, and he has not supplied it to us.
12 A-0747-16T2 to Rule 1:4-4 and based upon personal knowledge of the declarant
before the court may grant an evidentiary hearing." Porter, 216
N.J. at 355 (quoting R. 3:22-10(c)). A requirement that "an
affidavit supporting a motion must be based on 'personal knowledge'
is not satisfied by a statement 'based merely on 'information and
belief.'" Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489
(App. Div. 2003) (quoting Pressler, Current N.J. Court Rules, cmt.
2 on R. 1:6-6 (2003)). Thus, defendant's unsworn assertion based
solely on information and belief was "patently inadequate." Jacobs
v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div.
1998).
Moreover, defendant does not show why he can raise now a
claim that the State violated its discovery obligations. Rule
3:22-4(a) provides:
Any ground for relief not raised in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
13 A-0747-16T2 (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
Defendant does not claim that the second or third exception
applies. As to the first exception, "[a] ground could not
reasonably have been raised in a prior proceeding only if defendant
shows that the factual predicate for that ground could not have
been discovered earlier through the exercise of reasonable
diligence." Ibid.
Defendant stated under oath to the PCR court that this
information came out at Thigpen's trial. However, defendant has
not shown when Thigpen's trial occurred, why the information could
not have been discovered earlier through the exercise of reasonable
diligence, or why the claim could not reasonably have been raised
in any prior proceeding. See R. 3:20-2 ("A motion for a new trial
based on the ground of newly-discovered evidence may be made at
any time, but if an appeal is pending the court may grant the
motion only on remand of the case."); State v. Carter, 85 N.J.
300, 303 (1981) (remanding to consider the defendants' newly-
discovered evidence and Brady claims).
In the PCR court, defendant contended that trial counsel
failed to investigate adequately the arrangements Z.J. and J.V.
14 A-0747-16T2 had with the State to discover these alleged relocation payments.
However, trial counsel asserted defendant's right to discovery "if
the State in any way is assisting [Z.J.] in housing or monetarily,
in any way giving her assistance, extra protection." The trial
court agreed, and the prosecutor had no objection to making such
inquiries of Z.J. Defendant fails to allege what more trial
counsel could have done.
In any event, whether defendant is raising this claim as a
discovery violation under Brady or as ineffective assistance of
counsel under Strickland, he must show a reasonable probability
that the result of the trial would have been different had the
information been available. State v. Martini, 160 N.J. 248, 264,
269 (1999); see Strickland, 466 U.S. at 694 ("the appropriate test
for prejudice finds its roots in the test for materiality of
exculpatory information not disclosed to the defense by the
prosecution"). He has not made a prima facie showing.
Trial counsel had ample ammunition for cross-examining Z.J.,
including her gang membership; her long-held belief defendant was
innocent; her subsequent relationship with C.B., who told her
defendant was meeting with other girls after Skyers was killed;
her repeated lying to police in her earlier statements; the police
cursing at her and telling her people were after her and her
children needed her; her delay of over a year in giving a statement
15 A-0747-16T2 inculpating defendant; her failure to tell her cousins and others
what she was telling the jury; and her failure to disclose
defendant was living with her to protect her subsidized housing
and welfare payments. Indeed, trial counsel cross-examined Z.J.
for over ninety-five pages.
Given this wealth of cross-examination material to show Z.J.
was a lying, jealous former girlfriend who was pressured by police,
information that the State paid to relocate Z.J. would have added
little. As our Supreme Court stated in rejecting similar claims
based on non-disclosure of relocation expenses under the Federal
Witness Protection Program, "[a]ny possible incremental effect on
[the witness]'s credibility from the additional revelation that
financial accommodations were made to support his family would
have been merely cumulative." State v. Marshall, 123 N.J. 1, 207
(1991); accord Marshall, 148 N.J. at 162.
Moreover, eliciting that the State paid to relocate Z.J.,
"although possibly beneficial to the defendant, posed the clear
risk of an adverse jury reaction." Martini, 160 N.J. at 256, 269
(quoting Marshall, 148 N.J. at 256). To explain why she had
withheld inculpatory information for over a year, the prosecution
elicited from her that she "was kind of afraid." On cross-
examination, defense counsel got her to admit that defendant never
threatened her or told her not to talk to anyone. To elicit that
16 A-0747-16T2 the State found it necessary to pay to relocate her would risk
confirming that she was really afraid of retaliation by defendant.
Not only would that aid the credibility of her final statement
inculpating defendant, but it would paint defendant in a bad light
and corroborate that he would retaliate against those who snitched
against him, which was the theory of why he murdered Skyers and
went after Anderson.
Moreover, the other evidence against defendant was strong.
The other juvenile with defendant in the Subway, and a customer,
identified him as the robber. C.B. testified how defendant showed
him Skyers's body, and how defendant admitted he killed Skyers for
snitching that he committed the robbery. Anderson testified that
defendant confessed to the robbery and the murder. The recording
of their conversation was incriminating. Anderson, McKoy, and
Brinson testified how defendant sought to retaliate against
Anderson. Finally, defendant made incriminating remarks to the
police.
Thus, even assuming that the State paid to relocate Z.J., and
that the information was not disclosed to or unearthed by defense
counsel, defendant has not shown a prima facie case that there was
a reasonable probability the result of the trial would have been
different if defense counsel had elicited that the State paid to
relocate Z.J. See Marshall, 123 N.J. at 207 (finding there was
17 A-0747-16T2 "no reasonable possibility that the further impeachment of [the
witness] by reference to the financial support his family received
from the State would have affected the verdict"); accord Marshall,
148 N.J. at 162.
Defendant also cannot show that the verdict would have been
different if defense counsel had elicited that the State paid to
relocate J.V. J.V. gave very brief testimony. She did not know
defendant or other witnesses in his trial. She testified that
Thigpen told her he lured a "boy" into the woods and shot him
twice because he ratted on "D-Block," but she did not know who D-
Block was.2 Given her testimony that Thigpen committed the murder,
defense counsel on cross-examination did not try to discredit J.V.
Rather, he elicited that J.V. "didn't hold anything back" from the
police, that Thigpen "was telling her what he honestly believes,"
and that Thigpen told her he was alone when he committed the
murder, D-Block was locked up at the time, and D-Block was not
part of the conversation about whether to shoot the boy.
To elicit that the State paid to relocate J.V. to discredit
her would have undermined her testimony that defendant was
uninvolved in the murder. It could also have had the same adverse
jury reaction.
2 Other testimony showed D-Block was defendant's nickname.
18 A-0747-16T2 Defendant failed to establish a prima facie case entitling
him to a full evidentiary hearing.
To the extent defendant's pro se brief raises any additional
arguments, they lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
19 A-0747-16T2