NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2674-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH MCBRIDE, a/k/a BRIAN ANDERSON, KEITH MCBRIDGE, and KAISHAWN WILLIAMS,
Defendant-Appellant. ___________________________
Argued December 9, 2019 – Decided October 1, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-12- 2112.
Philip Nettl argued the cause for appellant (Benedict and Altman, attorneys; Philip Nettl, on the brief).
Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and on the brief). The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Keith McBride appeals from the trial court's denial of his post-
conviction relief (PCR) application without an evidentiary hearing. McBride
collaterally attacks his convictions of, among other crimes, armed robbery and
felony murder. He contends both trial counsel and appellate counsel failed to
meet the constitutional standard for effective assistance of counsel established
in Strickland v. Washington, 466 U.S. 668 (1984). He argues counsel should
have objected to the testimony of a substitute DNA scientist; sought a judgment
of acquittal on the robbery and felony murder counts; and objected to the jury
instructions and verdict sheet. We affirm.
I.
We assume the reader's familiarity with the facts underlying defendant's
convictions, which we reviewed on direct appeal. See State v. McBride, No. A-
5966-09 (App. Div. Oct. 23, 2012). The State's case relied substantially on the
testimony of Timisha Sanford, who observed McBride supply the handgun used
to kill Robert Funderberk, and then dispose of Funderberk's body.
Sanford testified that she saw her friend Janean Owens with Funderberk
at a sports bar. As Sanford later walked from the bar, Funderberk pulled up
A-2674-17T2 2 beside her in his truck. Owens was inside, and asked Sanford to take a ride with
them. Sanford complied and got in the back seat. Owens then stated they were
going to pick up her boyfriend McBride from her apartment. After they arrived,
Owens went up to her apartment.
A few minutes later, Sanford heard McBride and Owens talking behind
the truck. She got out of the truck and joined them while Funderberk stayed
inside the truck. McBride then gave Sanford a red rag with something inside of
it, and told her, "handle that." Once she returned to the car, she realized the rag
obscured a gun. Sanford immediately got out of the car and told McBride that
she "wasn’t doing that shit." Sanford indicated on cross-examination she did
not know why McBride gave her the gun, or what he wanted her to do with it.
Owens then took the gun from Sanford, and said she would "get the
n*****r." McBride told Sanford to "[g]et in the fuckin' truck." Once they all
got back in the truck, McBride sat in the front passenger seat; Sanford was
behind him; and Owens sat behind Funderberk.
While Funderberk was driving, Owens pointed the gun at the back of his
head, and asked McBride, "If I pull it will it go off[?]" McBride responded,
"trill," which Sanford testified means "yes." Owens then immediately fired the
A-2674-17T2 3 gun, shooting Funderberk in the head, killing him. McBride then yelled at
Owens, "What the fuck did you do that for?"
At McBride's direction, Sanford took the wheel and drove the group to an
industrial area in Newark, where they left Funderberk's body. Surveillance
footage from a nearby building captured McBride and Owens removing
Funderberk's body from the truck. They later abandoned the truck a few
minutes' drive away.
When the police examined the crime scene, they recovered a few items
from Funderberk's body, including a little over one dollar in coins, a cell phone,
a yellow gold chain, and a gold ring. They did not find identification, such as a
driver's license or credit cards. Funderberk's pants pockets had been turned
inside out. Police later retrieved sneakers from ductwork at Owens's house, and
pants from a garbage can near Owens's mother's house. Sanford said that Owens
wore the sneakers and McBride wore the pants the night of the homicide.
According to a report by State Police scientist Julie Weldon, Funderberk's DNA
was found on McBride's pants. After Weldon left the State's employ, another
scientist, Delores Coniglio, tested DNA on the sneakers and found it matched
Funderberk's profile that Weldon prepared.
A-2674-17T2 4 In Indictment No. 09-12-2112, the State charged defendant with
purposeful/knowing murder, N.J.S.A. 2C:11-3(a)(1); conspiracy to commit
murder, N.J.S.A. 2C:11-3(a)(1)(2) and N.J.S.A. 2C:5-2; armed robbery,
N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A.
2C:5-2; theft of personal property, N.J.S.A. 2C:20-3; theft of a motor vehicle,
N.J.S.A. 2C:20-3; felony murder, N.J.S.A. 2C:11-3(a)(3); firearms offenses,
N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-5(b); hindering apprehension offenses,
N.J.S.A. 2C:29-3(a)(3) and N.J.S.A. 2C:29-3(b)(1); and disturbing human
remains, N.J.S.A. 2C:22-1(a)(1) and 1(b). In a separate indictment, 07-01-0159,
the State charged defendant with certain persons not to have weapons, N.J.S.A.
2C:39-7(b). The State tried defendant and Owens in separate proceedings. 1
The jury found McBride guilty on all counts, except for
purposeful/knowing murder, conspiracy to commit murder, and theft of personal
property. In the aggregate, the trial judge sentenced McBride to fifty years in
prison. On direct appeal, we affirmed the convictions, but remanded for the trial
1 Owens was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); third-degree conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-2(b)(2); and multiple weapons offenses. We affirmed her convictions on direct appeal, State v. Owens, No. A-0803-09 (App. Div. Sept. 4, 2012), and later affirmed the denial of PCR without an evidentiary hearing, State v. Owens, No. A-3871-14 (App. Div. June 8, 2017). A-2674-17T2 5 court to merge the robbery conspiracy count into the substantive count, and to
reconsider imposing consecutive sentences. On remand, the trial court
reinstated its original aggregate sentence.
In his PCR petition, McBride certified that his trial counsel's initial
strategy had been to attack Sanford's credibility, and to challenge the DNA
scientist (Weldon) who linked the victim's DNA to the sample on McBride's
clothing. However, once it became clear that Coniglio would testify to explain
Weldon's findings, McBride asserted that his trial counsel changed strategy.
Believing he could not object to Coniglio's testimony, trial counsel decided to
concede in opening and summation that McBride was in the car and helped
dispose of the body, but he had no prior plan to rob or kill Funderberk. Trial
counsel also tried to undermine Sanford's credibility in order to cast reasonable
doubt on the conspiracy, robbery, and felony murder charges.
In his pro se brief, McBride advanced claims of actual innocence. He
asserted a Confrontation Clause violation, contended defective jury instructions
deprived him of a fair trial, and argued both his trial and appellate counsel
provided him ineffective assistance of counsel. The PCR court denied
McBride's petition after finding it was timely filed.
A-2674-17T2 6 The court first denied the weight of the evidence claim, finding it "not
cognizable in this collateral proceeding," and procedurally barred, since
defendant did not move for a new trial pursuant to Rule 3:20-1. Additionally,
the PCR court found the State's proofs to be "overwhelming," and thus defendant
could not satisfy the exacting "fundamental injustice" standard of Rule 3:22-
4(a)(2). The PCR court also found defendant's claims regarding the DNA
witness procedurally barred, since counsel did not object to the witness's
testimony at the 2010 trial. It also noted counsel did not object as part of the
overall trial strategy.
The court also found defendant's claim regarding the verdict sheet to be
procedurally barred, as the Appellate Division already considered it on direct
appeal. Additionally, the court found defendant's claim that there should have
been a special verdict on theft to be procedurally barred, as it was raised for the
first time in the PCR proceeding.
On appeal, McBride raises the following claims:
POINT I
DEFENDANT SHOULD HAVE BEEN ENTITLED TO POST-CONVICTION RELIEF AFTER RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND ON DIRECT APPEAL, IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES
A-2674-17T2 7 CONSTITUTION, AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. TRIAL AND APPELLATE COUNSEL'S FAILURE TO ARGUE FOR A JUDGMENT OF ACQUITTAL ON COUNTS 4 AND 7 (ROBBERY AND FELONY MURDER), DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL AND APPELLATE COUNSEL'S FAILURE TO OBJECT TO THE NUMEROUS DEFICIENCIES IN THE JURY CHARGE AND VERDICT SHEET, OR TO ARGUE THAT THEY CONSTITUTED PLAIN ERROR, DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
C. TRIAL AND APPELLATE COUNSEL'S FAILURE TO REQUEST A SPECIAL VERDICT REGARDING THE OBJECT OF THE ALLEGED THEFT THAT PREDICATED THE ROBBERY CHARGE, DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL
D. TRIAL AND APPELLATE COUNSEL'S FAILURE TO OBJECT TO DOLORES CONIGLIO'S TESTIMONY ABOUT THE HEARSAY REPORT OF JULIE WELDON, WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
A-2674-17T2 8 POINT II
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PETITION, BECAUSE HE RAISED PRIMA FACIE CLAIMS WARRANTING PCR RELIEF.
POINT III
DEFENDANT’S CLAIMS ARE NOT PROCEDURALLY BARRED.
II.
To prevail on a claim of ineffective assistance of counsel, a defendant (1)
must prove his counsel's performance fell below the standard established in the
Sixth Amendment of the United States Constitution, and (2) "must show that
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
687, 694; see also State v. Fritz, 105 N.J. 42 (1987). We review de novo the
PCR court's legal conclusions, and its factual inferences from the record, as the
trial court did not hold an evidentiary hearing. State v. Harris, 181 N.J. 391,
415, 420-21 (2004).
A.
We turn first to McBride's contention that his trial counsel was ineffective
for failing to argue for a judgment of acquittal on the robbery and felony murder
A-2674-17T2 9 counts. He further asserts his appellate counsel was ineffective for failing to
raise this claim on direct review. McBride argues that only "rank speculation"
would enable the jury to infer from Sanford's testimony that McBride, as an
accomplice to Owens, intended to rob Funderberk. Sanford denied any
knowledge of a plan to rob Funderberk. Yet, McBride gave the gun to her and
told her to "handle it." McBride argues "handle it" meant only "hold onto it."
A judgment of acquittal on the robbery count would also require acquittal of the
felony murder charge, which was predicated on the robbery.
We are unpersuaded. While defendant asserts that defense counsel never
argued for a judgment of acquittal on the robbery and felony murder counts, this
assertion is belied by the record. At the close of the State's case, counsel stated,
"I do have the normal motion for judgment of acquittal on all counts," but then
focused on the disturbing-human-remains counts, and briefly discussed the
murder charge. Noting the motion presented a "very close call," the court
granted the motion in part, and dismissed one of the disturbing-human-remains
counts. The issue was not raised on direct appeal.
However, neither trial counsel nor appellate counsel were ineffective. "It
is not ineffective assistance of counsel for defense counsel not to file a meritless
motion." State v. O'Neal, 190 N.J. 601, 619 (2007). Had trial counsel presented
A-2674-17T2 10 a fulsome argument regarding the robbery and felony murder counts, or had
appellate counsel raised the issue on direct appeal, the result would have been
the same.
An appellate court reviews a sufficiency of the evidence claim de novo.
See State v. Williams, 218 N.J. 576, 593-94 (2014). When a defendant moves
for a judgment of acquittal under Rule 3:18-1, a court "must determine whether,
based on the entirety of the evidence and after giving the State the benefit of all
its favorable testimony and all the favorable inferences drawn from that
testimony, a reasonable jury could find guilt beyond a reasonable doubt. " Id. at
594 (citing State v. Reyes, 50 N.J. 454, 458–59 (1967)).
"When 'each of the interconnected inferences [necessary to support a
finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a
whole,' judgment of acquittal is not warranted." State v. Samuels, 189 N.J. 236,
246 (2007) (alteration in original) (quoting United States v. Brodie, 403 F.3d
123, 158 (3d Cir. 2005)). Moreover, if there is no direct evidence of a tacit plan
or agreement, a jury may infer one from the "interconnected
favorable inferences" the State presents. Id. at 249; see also State v. Stull, 403
N.J. Super. 501, 506 (App. Div. 2008) (noting that "[w]hen there is no direct
A-2674-17T2 11 testimony, the fact-finder may rely solely on inferences available from the
proofs").
Although evidence of McBride's intent was certainly circumstantial,
Sanford's general narrative indicated McBride and Owens had a plan. McBride
and Owens spoke behind the car, out of earshot from Funderberk. The jury
could infer they were planning something at Funderberk's expense. Although
McBride initially gave the gun to Sanford, he may have misunderstood that
Sanford was in league with Owens; or Sanford may have, at trial, tried to
minimize her own involvement. In any event, when Sanford refused to "handle
it," and Owens "snatched" it from her, McBride did not intervene. Owens stated
she was going to "get" Funderberk, referring to him by a racial epithet. McBride
ordered Sanford to get in the truck, demonstrating his shared intent with Owens.
Nor did McBride dissuade Owens when she pointed the gun at Funderberk's
head. Rather, he confirmed to her that if she pulled the trigger, the gun would
fire. Although McBride yelled at Owens immediately after she fired the shot,
that did not necessarily mean McBride had no plan to rob, as McBride argues.
Rather, the jury may have inferred that Owens had deviated from the plan by
shooting Funderberk, whether they she did so intentionally or accidentally.
A-2674-17T2 12 Also, although testimony was not clear whether Funderberk was wearing
his large gold chain with a medallion that night, Sanford testified that McBride
wore a large gold necklace with a medallion. Moreover, Sanford testified
McBride did not have it before he removed Funderberk's body from the truck.
She indicated at trial the necklace McBride wore "look[ed] like" the one
Funderberk was known to wear. Furthermore, Funderberk was found without a
driver's license, credit cards or cash, with his pants pocket inside out, although
he had just come from a bar where he presumably had money to spend.
In sum, the State presented sufficient evidence for the jury to convict
defendant of robbery and felony murder. Therefore, McBride did not receive
ineffective assistance of counsel as a result of trial counsel's failure to argue
more vigorously for a judgment of acquittal, and appellate counsel's failure to
raise the issue on appeal.
B.
Defendant next contends trial counsel was constitutionally ineffective for
failing to object to the jury charges on armed robbery, and appellate counsel was
ineffective for not arguing the final jury charge constituted plain error.
In its initial charge to the jury on robbery, the trial court inconsistently
stated on one hand, that the intent to commit theft must precede or be
A-2674-17T2 13 coterminous with the use of force, and, on the other hand, the intent to commit
theft may occur after the use of force. The judge stated:
To find the defendant guilty of robbery the intent to commit the theft must precede or be coterminous with the use of force. In other words, defendant must have formed the intent to commit a theft before or during his use of force. If you find defendant formed the intent to commit a theft after he used the force he is guilty of the robbery.
[Emphasis added.]
Without question, this jury charge was erroneous. The final sentence did not
follow from the previous two, and it incorrectly stated the law. Trial counsel
did not object to this charge.
Not surprisingly, the jury requested clarification the next day. The jury
asked for the trial judge to "fully explain count 4, armed robbery." The court
re-charged the jury on robbery, correcting the misstatement. The court
explained, "To find the defendant guilty of robbery the intent to commit the
theft, the intent, the state of mind to commit the theft must precede or be
coterminous with the use of force." The court then repeated, for emphasis, " In
other words, the defendant must have formed the intent to commit a theft before
or during his use of force. Before or during the use of force." Then, correcting
its previous statement, the court explained, "If you find defendant formed the
A-2674-17T2 14 intent to commit a theft after the use of force then he cannot be found guilty of
a robbery." The court then added, to distinguish robbery from armed robbery,
"If the defendant is armed with or uses or threatens the use of a deadly weapon
the crime becomes armed robbery." Defense counsel did not object to the new
charge.
In addition to re-charging the jury, the court noted that the verdict sheet
for the armed robbery count had omitted the phrase "in the course of committing
a theft did use force." Thus, the original verdict sheet asked whether "McBride
did use force upon Robert Funderberk and/or inflict bodily injury upon Robert
Funderberk, and/or commit the crime of murder upon Robert Funderberk while
armed with and/or by use of a deadly weapon." The judge supplied the jury a
corrected verdict sheet that added the missing phrase.
Even assuming defense counsel was ineffective in failing to object to the
erroneous charge and verdict sheet, counsel's failure did not cause prejudice —
because the court corrected both errors before the jury reached a verdict. We
also reject McBride's argument that the sentence distinguishing between robbery
and armed robbery was deficient, and counsel was ineffective by failing to
object to it.
A-2674-17T2 15 In State v. Lopez, 187 N.J. 91 (2006), the Supreme Court held that our
state's robbery statute does not contemplate "afterthought robbery." In other
words, in order for one to be found guilty of robbery, "the intention to steal must
precede or be coterminous with the use of force." Id. at 101. Therefore, when
"a violent fracas occurs for reasons other than theft, and the perpetrator later
happens to take property from the victim," the perpetrator would be guilty of
assault and theft, but not robbery. Ibid.
The final charge accurately and clearly stated the law. The trial court's
correction resolved any confusion the jury may have had. We reject McBride's
argument that he suffered prejudice, because the jury was permitted to deliberate
for an hour between when the court noticed the error and when it corrected it.
The jury requested clarification on the jury charge and then took a lunch break.
Upon returning, the jury deliberated for less than an hour, and presumably was
awaiting the court's response when it returned. In any event, the court corrected
the error in time for the jury to apply the accurate statement of law before
reaching a verdict. We presume the jury followed the court's instruction. See
State v. Loftin, 146 N.J. 295, 390 (1996).
We also reject defendant's contention that the final charge, in
distinguishing robbery from armed robbery, erroneously used the word "crime"
A-2674-17T2 16 instead of "robbery." We review a jury charge as a whole and avoid reading
challenged portions in isolation. See State v. Garrison, 228 N.J. 182, 201
(2017). Contrary to defendant's argument, a jury would not reasonably infer
"that any crime of violence becomes 'armed robbery' if a deadly weapon is used
or deadly force threatened." The preceding four sentences in the charge all
discussed robbery. The only other violent crimes the jury was instructed on
were murder and felony murder; no reasonable juror would have understood the
murder or felony murder elements to be somehow part of the armed robbery
count. Reading the entire charge, it is clear the word "crime" referred only to
"robbery," and not any potential violent crime. Therefore, defendant's trial and
appellate counsel were not constitutionally deficient in failing to raise this claim
at trial and on direct review.
C.
McBride contends that his trial counsel was ineffective by failing to object
when State Police scientist Coniglio presented her former colleague's conclusion
that Funderberk's DNA profile was found in a DNA sample taken from
McBride's pants. McBride argues that such testimony violated his right of
confrontation, as explained in Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009), which the Supreme Court issued six months before McBride's trial. In
A-2674-17T2 17 Melendez-Diaz, the Court held that affidavits reporting the results of positive
drug tests were testimonial; the affiants were witnesses; and a defendant was
constitutionally entitled to cross-examine the affiants at trial. Id. at 311.
We are unpersuaded that an objection would have ultimately succeeded in
barring the DNA evidence linking McBride to the crime; nor is there a
reasonable probability that exclusion would have produced a different result,
given the surveillance video depicting McBride disposing of Funderberk's body.
Applying United States Supreme Court jurisprudence in this area, our
State Supreme Court declined to "hold that the testimony of the original person
to have performed forensic testing is required in all instances, regardless of the
type of testing and the knowledge and independence of review and judgment of
the testifying witness." State v. Roach, 219 N.J. 58, 60-61 (2014). Rather, "a
truly independent reviewer or supervisor of testing results can testify to t hose
results and to his or her conclusions about those results, without violating a
defendant's confrontation rights, if" the independent reviewer or supervisor
meets three requirements. State v. Michaels, 219 N.J. 1, 45-46 (2014). The
testifying reviewer must (1) be "knowledgeable about the testing process"; (2)
"independently verif[y] the correctness of the machine-tested processes and
results"; and (3) "form[] an independent conclusion about the results." Ibid. In
A-2674-17T2 18 Roach, the Court found that a State DNA scientist, utilizing DNA profiles a
predecessor prepared, met those requirements. 219 N.J. at 80-81.
Even assuming trial counsel failed to object to Congilio's testimony
because he was unaware of the right to do so on Confrontation Clause grounds,
McBride has not demonstrated that the objection would have succeeded in
barring Coniglio's testimony about Weldon's analyses. Rather, it would have
likely triggered the sort of discussion that the testifying scientist in Roach
provided. Notably, Congilio testified that she reviewed Weldon's notes, as well
as her report. She utilized Weldon's profile of Funderberk's DNA, drawn from
a sample of his blood, in preparing her own report of samples she tested after
Weldon had left.2 Coniglio matched Funderberk's profile Weldon prepared, to
a DNA profile that Congilio personally prepared from a sample taken from
Owens's sneakers. Thus, Coniglio was intimately familiar with Funderberk's
DNA profile.
Furthermore, even if the State could not lay a sufficient foundation to
enable Coniglio to present the laboratory test results that Weldon obtained, we
discern no prejudice under Strickland's second prong. That is because the DNA
2 Neither party has provided the court with Weldon's and Coniglio's reports, to enable us to assess the degree to which Congilio independently analyzed Weldon's work, in conducting her own. A-2674-17T2 19 evidence was not the only proof of McBride's presence. Sanford testified that
McBride was present, and the video surveillance of McBride removing
Funderberk's body from the truck, and disposing of it, proved exactly the same
thing. In sum, McBride has not established a right to PCR based on the failure
to object to Coniglio's testimony. Nor has he met the threshold for an
evidentiary hearing. See R. 3:22-10(b) (stating that to secure an evidentiary
hearing, a petitioner must "establish[ ] . . . a prima facie case in support of post-
conviction relief" and the court must determine "there are material issues of
disputed fact that cannot be resolved by reference to the existing record, and
. . . an evidentiary hearing is necessary to resolve the claims for relief"); see also
State v. Preciose, 129 N.J. 452, 462-63 (1992).
To the extent not addressed, McBride's remaining points lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2674-17T2 20