STATE OF NEW JERSEY VS. MICHAEL PALMER(01-10-4196, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 18, 2017
• Docket: A-3328-13T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3328-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL PALMER,

Defendant-Appellant. ___________________________

Submitted March 29, 2017 – Decided July 18, 2017

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4196.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief. PER CURIAM

Defendant Michael T. Palmer appeals from the December 17,

2013 Law Division order, which denied his petition for post-

conviction relief without an evidentiary hearing. We affirm.

I.

Following a jury trial, on October 27, 2003, defendant was

convicted of first-degree murder, N.J.S.A. 2C:11-3(a) (count one);

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)

(count two); and second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing on October

27, 2003, Judge Thomas M. McCormack merged count three with count

one and imposed a thirty-year term of imprisonment with a thirty-

year period of parole ineligibility on count one, and a concurrent

thirty-year term of imprisonment on count two.

The charges against defendant stemmed from the shooting death

of Tarrod Grantham, known locally as Rallo, at approximately 4:25

p.m. on August 4, 2001, at 2089 Columbia Avenue in Irvington.1 The

State's case relied heavily on the testimony of an eyewitness,

C.D., who was fourteen years old at the time of the shooting and

resided at 2087 Columbia Avenue. According to C.D., she was

outside her home between 3:00 p.m. and 3:30 p.m. when she saw

1 We use fictitious house numbers in order to protect the identity of the persons involved in this case.

2 A-3328-13T2 Rallo walking toward 2089 Columbia Avenue, and then go up the

steps of the building. C.D. saw Rallo standing on the front porch

with his friend "Slick." C.D. then re-entered her home.

C.D. testified that at approximately 4:20 p.m., she returned

to the porch of her home with her friend Marsha. She saw Rallo

and Slick outside 2089 Columbia Avenue, and saw a person named

Mike walking toward 2089 Columbia Avenue. C.D. identified

defendant as Mike, and testified that she had seen him in the

neighborhood more than twenty times.

C.D. testified that as Mike approached 2089 Columbia Avenue,

Slick ran inside the building. She saw Mike draw near to Rallo

and point his right arm at Rallo, who was standing on the steps.

She "heard a boom, like a firecracker shot," saw smoke, and ran

up the steps. She then saw Mike running toward Eighteenth Avenue.

She ran to Rallo and saw that he had been shot in the chest.

When the police arrived at the scene, C.D. told an officer

that Mike shot Rallo and provided a physical description of Mike.

She then went to the police station to make a photo identification

of Mike and to give a statement. She testified that she went

through approximately twenty photos on the computer and was able

to identify defendant as Mike from one of the photos. The police

eventually located defendant and arrested him on August 28, 2001.

3 A-3328-13T2 C.D. also made an in-court identification of defendant as the

shooter.

C.D. did not identify anyone other than Mike, Rallo, Slick,

and Marsha as being present at the time of the shooting. A

detective attempted to locate additional witnesses to the

shooting, but none came forward, and neither the second floor

tenant at 2089 Columbia Avenue nor any other spectators at the

scene had helpful information.

Defendant's trial counsel went to the crime scene, but found

little to investigate due to the passage of time since the shooting

and the alteration of the buildings. The buildings at 2087 and

2089 Columbia Avenue had been vacated and boarded up in the Spring

following the shooting. Trial counsel also spoke to defendant

about the possibility of using Slick as a witness, but defendant

instructed counsel not to speak to him.

Trial counsel also tried to contact C.D., but discovered she

had moved. Counsel eventually received C.D.'s new address shortly

before trial, but never spoke to her. C.D. had given three

statements that differed in some degree, so counsel decided to

rely on those statements and try to exploit the inconsistencies

at trial. At trial, counsel extensively cross-examined C.D. about

her inconsistent statements.

4 A-3328-13T2 Prior to sentencing, defendant sought a new trial based, in

part, on trial counsel's ineffective assistance in failing to

investigate witnesses. Following an evidentiary hearing, at which

trial counsel testified, Judge McCormack denied the motion,

holding that counsel's performance was not deficient.

Specifically, the judge stated that counsel's investigation of the

case, her consultations with defendant, and her trial strategy

could not be considered deficient.

Defendant appealed his conviction and denial of his motion

for a new trial, arguing, in part, that trial counsel rendered

ineffective assistance by failing to investigate and call C.B.,

another eyewitness to the shooting. While the appeal was pending,

defendant filed a motion with this court to supplement the record

to include Irvington Police Department reports of two interviews

with C.B., dated August 26, 2004 and February 8, 2005, and a photo

display and photograph form signed by C.B., dated February 7,

2005, signed by C.B. In support of his motion, defendant stated

that the supplemental material buttressed his contention that

trial counsel's performance was deficient because C.B. had been

located and her recollection of the events exculpated him.

We affirmed, but remanded to correct the judgment of

conviction (JOC) to reflect a concurrent three-year term of

imprisonment on count two. State v. Palmer, No. A-2576-03 (App.

5 A-3328-13T2 Div. Dec. 14, 2006) (slip op. at 15). We did not preclude defendant

from pursuing PCR based on information or evidence that C.B. may

have concerning the events of the afternoon of August 4, 2001.

Id. (slip op. at 14). We found the supplemental material was, on

its face, equivocal, and the information provided by C.B. was not

exculpatory. Id. (slip op. at 14-15). However, we determined

that none of the supplemental material was presented to the trial

judge, and we did not preclude further consideration of this

material in a subsequent PCR petition. Id. (slip op. at 15). Our

Supreme Court denied certification. State v. Palmer, 194 N.J. 268

(2008).

Defendant filed a PCR petition, certifying that trial counsel

rendered ineffective assistance by failing to investigate and call

C.B. In support of his motion, defendant submitted an affidavit

from C.B., dated August 12, 2012. Defendant also submitted an

affidavit from C.B.'s mother, T.B., who was present during the

police interviews with C.B. PCR counsel argued in his brief that

trial counsel also rendered ineffective assistance by failing to

call other witnesses and coercing defendant not to testify at

trial; however, defendant did not certify to these facts and did

not submit certifications from the alleged witnesses.

On February 28, 2011, Judge McCormack entered an order

granting an evidentiary hearing, but limiting the hearing to all

6 A-3328-13T2 evidence discovered after defendant's conviction relating to trial

counsel's alleged failure to investigate and call C.B. The order

also included T.B.

At the start of the hearing before Judge Alfonse J. Cifelli,

defendant stated that in addition to C.B., he wanted to present

evidence relating to trial counsel's failure to investigate other

witnesses prior to and after trial. Judge Cifelli enforced Judge

McCormack's February 28, 2011 order, and declined to expand the

scope of the hearing beyond evidence discovered after defendant's

conviction relating to trial counsel's failure to investigate and

call C.B.

At the hearing, C.B. testified that she was eleven years old

at the time of the shooting, and had signed the affidavit on August

12, 2012, which stated that on August 4, 2001, she was outside

playing with C.D. when she saw a person known as Mike run between

two houses and run to the porch of 2089 Columbia Avenue where

Rallo and Slick were hanging out. Mike walked up to Rallo, held

out his arm, and she heard a popping sound. C.B. testified she

only saw the shooter's face from an angle from where she was

sitting on the front of her house and it was C.D. who told her

that the shooter was Mike.

C.B. testified that the Mike she saw on August 4, 2001 was

not in a photo array shown to her on February 7, 2005. She also

7 A-3328-13T2 testified that she did not recognize and could not identify any

of the people in the photo array shown to her, and acknowledged

that the shooter could have been in the photos, but she was not

sure. She admitted that she could not say with certainty that

defendant was or was not the shooter. She testified that she did

not come forward before August 26, 2004, because she did not want

to get involved and her mother did not want her involved. She

also testified that she would not have been willing to testify at

trial absent a court order or subpoena.

T.B. testified that C.B. ran into the house and told her that

someone got shot. She testified that she probably would not have

permitted C.B. to provide any information to the police about the

shooting, or provide any information herself. She also testified

that she probably would not have allowed C.B. to testify at trial

without a court order or subpoena out of concern for C.B.'s safety

and because C.B. was a child.

Judge Cifelli denied the petition. In a December 17, 2013

oral opinion, the judge found defendant failed to show that trial

counsel's performance was deficient, and even if deficient, that

the outcome would have been different. The judge found that C.B.'s

potential testimony would have provided "no discernible assistance

to [defendant's] defense or any impact on the outcome of the

8 A-3328-13T2 trial[,]" as she "was clearly not able to provide any [firsthand]

information concerning the shooter and/or his identity[.]"

Judge Cifelli also found trial counsel's alleged failure or

inability to locate C.B., be it from lack of effort or otherwise,

inconsequential to defendant's conviction for murder. The judge

determined that C.B.'s potential testimony would not have

contradicted or impeached C.D.'s positive in- and out-of-court

identifications of defendant as the shooter, and C.D.'s testimony

was sufficient for the jury to find defendant guilty of murder.

On appeal, defendant raises the following contentions:

POINT I – [PCR] SHOULD HAVE BEEN GRANTED WHERE TRIAL COUNSEL FAILED TO INTERVIEW AND PRESENT TESTIMONY THAT WOULD CONTRADICT THE STATE'S ONLY EYEWITNESS.

POINT II – DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE RAISED IN HIS [PCR] PETITION CONCERNING THE ALLEGATION THAT TRIAL COUNSEL COERCED THE DEFENDANT TO REFRAIN FROM TESTIFYING.

Defendant raises the following contentions in a pro se supplemental

brief:

POINT I

The PCR Court improperly denied Defendant the Right to Present Evidence and Witnesses Contrary to Judge McCormack's Order Relating to Trial Counsel's Failure to Investigate.

9 A-3328-13T2 POINT II

PCR Counsel Was Ineffective For Failing to Honor the Defendant's Request And Ask C.B. Questions Regarding the Fight [Defendant] Had With [the victim] the Day Before He Was Murdered.

The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Rather, trial courts should grant evidentiary hearings and make

determinations on the merits only if the defendant has presented

a prima facie claim of ineffective assistance of counsel, material

issues of disputed fact lie outside the record, and resolution of

the issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013). To establish a prima facie claim of

ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply

10 A-3328-13T2 means a probability sufficient to undermine confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]

"[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient

to demonstrate counsel's alleged substandard performance."

Cummings, supra, 321 N.J. Super. at 170. The defendant must

establish, by a preponderance of the credible evidence, that he

is entitled to the relief requested. State v. Nash, 212 N.J.

518, 541 (2013). "[W]hen a [defendant] 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." Porter, supra, 216 N.J.

at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).

Our Supreme Court has established the standard of review in

PCR cases where the court held an evidentiary hearing:

In reviewing a PCR court's factual findings based on live testimony, an appellate court applies a deferential standard; it will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. Indeed, [a]n appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand. However,

11 A-3328-13T2 a PCR court's interpretation of the law is afforded no deference, and is reviewed de novo. [F]or mixed questions of law and fact, [an appellate court] give[s] deference . . . to the supported factual findings of the trial court, but review[s] de novo the lower court's application of any legal rules to such factual findings.

[State v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).]

We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. State v. Preciose,

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

II.

Defendant contends in Point I of his merits brief that Judge

Cifelli erred in denying PCR because the evidence showed that

trial counsel failed to interview and call C.B., whose testimony

would have called C.D.'s testimony into question. Since Judge

Cifelli granted an evidentiary hearing on this issue, we must

determine whether his findings are supported by sufficient

credible evidence in the record.

Generally, a criminal defense attorney "has a duty to make

reasonable investigations or make a reasonable decision that makes

particular investigations unnecessary." Strickland v. Washington,

466 U.S. 668, 691, 104 S. Ct. 2052, 2006, 80 L. Ed. 2d 674, 695

(1984). The failure to investigate potential witnesses may

constitute ineffective assistance. State v. Deutsch, 229 N.J.

12 A-3328-13T2 Super. 374, 377 (App. Div. 1988) (citation omitted). A defendant

may also establish ineffective assistance by showing that counsel

failed to call exculpatory witnesses on his behalf. State v.

Petrozelli, 351 N.J. Super. 14, 25 (App. Div. 2002). Moreover,

"[t]he complete failure to investigate potentially corroborating

witnesses cannot be attributed to trial strategy." State v.

Arthur, 184 N.J. 307, 342 (2005) (citations omitted). However,

the "decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure

of deference to counsel's judgments." Strickland v. Washington,

supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The record amply supports Judge Cifelli's finding that

defendant failed to show trial counsel's performance was

deficient, and that even if deficient, the outcome would have been

different. C.B. was not an exculpatory witness. She had no first-

hand information about the shooter and/or his identity and could

not say with certainty whether or not defendant was the shooter.

In addition, C.B.'s potential testimony would not have been that

the shooter was not in the photo array shown to her over three

years after the shooting, but only that she could not make any

identification and did not know if the shooter was in the array.

Nor would C.B.'s potential testimony have impeached or

contradicted C.D.'s positive identifications of defendant as the

13 A-3328-13T2 shooter. Clearly, if C.B. had testified at trial, it would not

have changed the result. She would not have testified that

defendant was not the shooter.

III.

Defendant contends in Point II of his merits brief that Judge

Cifelli erred in limiting the scope of the evidentiary hearing and

denying a hearing on his claim that trial counsel coerced him not

to testify and failed to investigate other witnesses. However,

there is no credible evidence in the record supporting this

argument, as defendant did not certify that trial counsel coerced

him not to testify. Defendant also did not submit affidavits from

the alleged witnesses asserting the facts to which they would have

testified. Porter, supra, 216 N.J. at 353.

In any event, defendant's contention that Judge Cifelli

improperly limited the scope of the evidentiary hearing lacks

merit. The limitation complied with our preservation of

defendant's right to pursue PCR based on post-conviction evidence

relating only to C.B. See Palmer, supra, (slip p. at 14-15). We

did not preserve any other issue for PCR.

Defendant's contention that trial counsel coerced him not to

testify also lacks merit. The record belies defendant's claim

that trial counsel coerced him not to testify.

14 A-3328-13T2 "As with the right against self-incrimination, . . . 'it is

the responsibility of a defendant's counsel, not the trial court,

to advise defendant on whether or not to testify and to explain

the tactical advantages or disadvantages of doing so or not doing

so." State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v.

Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988)). As the Court

stated:

Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it. To ensure that counsel meets that obligation, it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant . . . of his or her right to testify. This will best ensure that defendant's constitutional rights are fully protected. Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel.

[Id. at 631.]

Here, Judge McCormack asked trial counsel if defendant

intended to testify, and counsel responded no. The following

colloquy then occurred:

[COUNSEL]: Mr. Palmer, you understand that if you choose to, you can actually take the stand in your own defense?

THE DEFENDANT: Yes.

[COUNSEL]: And you're aware that we're ready and willing to proceed that way today?

15 A-3328-13T2 [COUNSEL]: Isn't it true that I have been representing you since, I believe March 3rd of this year?

[COUNSEL]: And I have met with you on numerous occasions to discuss defense strategy?

[COUNSEL]: And during these conversations we discussed your possibly taking the stand. Is that correct?

[COUNSEL]: And we have made the decision – you personally made the decision for you not to testify?

[COUNSEL]: And you did so after consulting me?

[COUNSEL]: After consulting with numerous family members?

[COUNSEL]: Do you understand that you are giving up then your right to testify in your own behalf?

[COUNSEL]: Are you doing so freely and voluntarily?

16 A-3328-13T2 [COUNSEL]: And no one is forcing you to do that?

THE DEFENDANT: Yes – I mean no.

[COUNSEL]: Are you doing it voluntarily?

[COUNSEL]: Are you under the influence of any alcohol or drug that would cloud your thoughts this morning?

THE DEFENDANT: No.

[COUNSEL]: Thank you.

THE COURT: Has your attorney had the opportunity to fully explain to you your options and the ramifications or the effect of each decision you make as to whether to testify or not testify in this case?

THE COURT: Do you have any further questions you need to discuss with [counsel] with respect to your decision not to testify?

It is clear from this colloquy that trial counsel advised

defendant of his right to testify, he freely and voluntarily waived

that right, and he was not forced to do so. Trial counsel's

performance in this regard was not deficient.

IV.

We have considered defendant's contentions in Points I and

II of his pro se supplemental brief in light of the record and

17 A-3328-13T2 applicable legal principles and conclude they are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

18 A-3328-13T2