NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3935-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IBRAHIM S. DAO, a/k/a ACE S. DAO,
Defendant-Appellant. _________________________
Submitted October 16, 2019 – Decided November 22, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-06-1877.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Ibrahim Dao appeals from an order, entered by the Law
Division on August 23, 2017, denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
I
We begin with a summary of the relevant facts established at defendant's
trial, as set forth in our opinion on direct appeal. State v. Dao, No. A-0166-14
(App. Div. Nov. 2, 2016). The Supreme Court denied defendant's petition for
certification. State v. Dao, 228 N.J. 491 (2017).
On the evening of February 24, 2013, Gloucester Township
police officers were dispatched to a residence for a domestic dispute. Although Corporal James Kaelin was not assigned to the call, he testified that he responded to the call since he was in the area and there was a 'flag file for that residence.' Kaelin was the first officer to arrive at the home. He described for the jury the altercation he and the other officers had with defendant, who resisted their efforts to subdue and arrest him, and the injuries that he and the other officers sustained during the skirmish.
[Dao, slip op. at 2]
In addition, the other three responding officers also testified, describing
the incident and the injuries they sustained. Defendant testified in his own
defense, and claimed the police officers assaulted him for no reason whatsoever.
A-3935-17T1 2 He claimed that on the evening in question, he decided to go to the hospital
because he "was having shoulder pain," stemming from a previous truck
accident. He "dialed 911 and asked for an ambulance to come to [his] address."
Defendant's trial counsel declined to call defendant's girlfriend at the time, K.H.,
who was present for the entire encounter. 1
Following the incident, K.H. gave a statement to the officers still on scene.
She said defendant started "bugging" and accused her of "being sneaky." She
continued, defendant then "called the cops or whatever and the ambulance so they
could check me out for being sneaky. I'm not being myself." Regarding Corporal
Kaelin's initial contact with defendant, K.H. stated "they tried to um … arrest him[]
[b]ut he started tussling." She also recalled the officers were "trying to . . . put the
cuffs on him and stuff but he kept turning."
In June 2013, a Camden County grand jury returned indictment No. 1877-
06-13, charging defendant with four counts of third-degree aggravated assault
on a police officer, contrary to N.J.S.A. 2C:12-1b(5)(a) (counts one through
four), and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count
five). On January 29, 2014, at the conclusion of a two-day trial, the jury returned
a verdict finding defendant guilty on all counts. The trial court sentenced
1 We refer to K.H. by her initials to preserve her privacy. A-3935-17T1 3 defendant to an aggregate prison term of five years, with a parole ineligibility
period of two and one-half years.
On May 25, 2017, defendant filed the petition for PCR under review. In
his petition, defendant alleged his trial counsel provided ineffective assistance
when he chose not to call K.H. as a witness and failed to enter the 911 transcripts
into evidence.
Following oral argument, Judge John T. Kelley denied defendant's petition
without an evidentiary hearing, after setting forth his reasons in a comprehensive
oral opinion. As to trial counsel's alleged deficiency in failing to call K.H., the judge
found defendant failed to establish a prima facie case of ineffective assistance. He
found that K.H.'s recorded statements contradicted defendant's trial testimony and,
therefore, trial counsel strategically chose not to call her as a witness. The judge
also found K.H.'s prior convictions presented credibility issues, which likely
factored into trial counsel's decision not to call her as a witness. Applying the
applicable law to his findings, the judge concluded defendant failed to establish a
prima facie case of ineffective assistance, as defendant's petition failed to
demonstrate that his trial counsel provided deficient performance or that an injustice
resulted.
A-3935-17T1 4 This appeal followed with defendant presenting the following point of
argument:
POINT I
THE PCR COURT ERRED IN DENYING THE PCR PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING BECAUSE ITS FACTUAL DETERMINATIONS THAT THE KEY DEFENSE WITNESS'S PRIOR STATEMENT WOULD HAVE BEEN INCONSISTENT WITH HER POTENTIAL TRIAL TESTIMONY WAS SIMPLY WRONG, AND IT INCORRECTLY DETERMINED, WITHOUT THE BENEFIT OF TESTIMONY, THAT THIS WITNESS WAS NOT CREDIBLE.
Defendant also filed a pro se supplemental "Reply Brief," in which he argues he
should have been granted an evidentiary hearing on his petition.
Following our review of these arguments, in light of the record and applicable
law, we affirm.
II
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A-3935-17T1 5 A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[;]" second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 688, 694 (1984); accord State v.
Fritz, 105 N.J. 42, 58 (1987). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.
391, 432 (2004) (quoting Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,
147 (2011)).
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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-3935-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IBRAHIM S. DAO, a/k/a ACE S. DAO,
Defendant-Appellant. _________________________
Submitted October 16, 2019 – Decided November 22, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-06-1877.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Ibrahim Dao appeals from an order, entered by the Law
Division on August 23, 2017, denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
I
We begin with a summary of the relevant facts established at defendant's
trial, as set forth in our opinion on direct appeal. State v. Dao, No. A-0166-14
(App. Div. Nov. 2, 2016). The Supreme Court denied defendant's petition for
certification. State v. Dao, 228 N.J. 491 (2017).
On the evening of February 24, 2013, Gloucester Township
police officers were dispatched to a residence for a domestic dispute. Although Corporal James Kaelin was not assigned to the call, he testified that he responded to the call since he was in the area and there was a 'flag file for that residence.' Kaelin was the first officer to arrive at the home. He described for the jury the altercation he and the other officers had with defendant, who resisted their efforts to subdue and arrest him, and the injuries that he and the other officers sustained during the skirmish.
[Dao, slip op. at 2]
In addition, the other three responding officers also testified, describing
the incident and the injuries they sustained. Defendant testified in his own
defense, and claimed the police officers assaulted him for no reason whatsoever.
A-3935-17T1 2 He claimed that on the evening in question, he decided to go to the hospital
because he "was having shoulder pain," stemming from a previous truck
accident. He "dialed 911 and asked for an ambulance to come to [his] address."
Defendant's trial counsel declined to call defendant's girlfriend at the time, K.H.,
who was present for the entire encounter. 1
Following the incident, K.H. gave a statement to the officers still on scene.
She said defendant started "bugging" and accused her of "being sneaky." She
continued, defendant then "called the cops or whatever and the ambulance so they
could check me out for being sneaky. I'm not being myself." Regarding Corporal
Kaelin's initial contact with defendant, K.H. stated "they tried to um … arrest him[]
[b]ut he started tussling." She also recalled the officers were "trying to . . . put the
cuffs on him and stuff but he kept turning."
In June 2013, a Camden County grand jury returned indictment No. 1877-
06-13, charging defendant with four counts of third-degree aggravated assault
on a police officer, contrary to N.J.S.A. 2C:12-1b(5)(a) (counts one through
four), and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count
five). On January 29, 2014, at the conclusion of a two-day trial, the jury returned
a verdict finding defendant guilty on all counts. The trial court sentenced
1 We refer to K.H. by her initials to preserve her privacy. A-3935-17T1 3 defendant to an aggregate prison term of five years, with a parole ineligibility
period of two and one-half years.
On May 25, 2017, defendant filed the petition for PCR under review. In
his petition, defendant alleged his trial counsel provided ineffective assistance
when he chose not to call K.H. as a witness and failed to enter the 911 transcripts
into evidence.
Following oral argument, Judge John T. Kelley denied defendant's petition
without an evidentiary hearing, after setting forth his reasons in a comprehensive
oral opinion. As to trial counsel's alleged deficiency in failing to call K.H., the judge
found defendant failed to establish a prima facie case of ineffective assistance. He
found that K.H.'s recorded statements contradicted defendant's trial testimony and,
therefore, trial counsel strategically chose not to call her as a witness. The judge
also found K.H.'s prior convictions presented credibility issues, which likely
factored into trial counsel's decision not to call her as a witness. Applying the
applicable law to his findings, the judge concluded defendant failed to establish a
prima facie case of ineffective assistance, as defendant's petition failed to
demonstrate that his trial counsel provided deficient performance or that an injustice
resulted.
A-3935-17T1 4 This appeal followed with defendant presenting the following point of
argument:
POINT I
THE PCR COURT ERRED IN DENYING THE PCR PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING BECAUSE ITS FACTUAL DETERMINATIONS THAT THE KEY DEFENSE WITNESS'S PRIOR STATEMENT WOULD HAVE BEEN INCONSISTENT WITH HER POTENTIAL TRIAL TESTIMONY WAS SIMPLY WRONG, AND IT INCORRECTLY DETERMINED, WITHOUT THE BENEFIT OF TESTIMONY, THAT THIS WITNESS WAS NOT CREDIBLE.
Defendant also filed a pro se supplemental "Reply Brief," in which he argues he
should have been granted an evidentiary hearing on his petition.
Following our review of these arguments, in light of the record and applicable
law, we affirm.
II
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A-3935-17T1 5 A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[;]" second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 688, 694 (1984); accord State v.
Fritz, 105 N.J. 42, 58 (1987). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.
391, 432 (2004) (quoting Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,
147 (2011)). To prove the second element, a defendant must demonstra te "how
specific errors of counsel undermined the reliability of the finding of guilt."
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984)
The record supports Judge Kelley's determination that defendant failed to
present a prima facie case of ineffective assistance of counsel. Considering that
A-3935-17T1 6 K.H.'s recorded statements contradicted defendant's trial testimony and that her
prior convictions presented credibility issues, trial counsel's decision not to call
K.H. as a witness was a reasonable strategic decision. Moreover, defendant was
not prejudiced by counsel's decision. As the judge noted, K.H.'s testimony could
have hurt, rather than helped, the defense.
Defendant further argues Judge Kelley abused his discretion by denying
an evidentiary hearing, asserting the existence of genuine issues of material fact.
PCR courts are not required to conduct evidentiary hearings unless the defendant
establishes a prima facie case and "there are material issues of disputed fact that
cannot be resolved by reference to the existing record." R. 3:22-10(b). "To
establish such a prima facie case, the defendant must demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997) (alteration in original). Speculative assertions
are insufficient to establish a prima facie case of ineffective assistance of
counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
The record amply supports Judge Kelley's findings and conclusions.
Defendant has not shown "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. He did not demonstrate the required prejudice. Having
A-3935-17T1 7 failed to establish a prima facie case on both prongs of Strickland, defendant was
not entitled to an evidentiary hearing. Preciose, 129 N.J. at 462. Accordingly, we
discern no abuse of discretion in the denial of an evidentiary hearing.
To the extent we have not addressed any arguments raised by defendant, we
have deemed such arguments lacking in sufficient merit to warrant comment in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3935-17T1 8