STATE OF NEW JERSEY VS. PETER LEONCE (11-02-0440, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 2, 2020
• Docket: A-1446-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1446-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER LEONCE,

Defendant-Appellant. ______________________________

Submitted March 2, 2020 – Decided June 2, 2020

Before Judges Messano and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-02-0440.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodesetro, Designated Counsel on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Regina M. Oberholzer, Deputy Attorney General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM Defendant, Peter Leonce, appeals from the denial of his petition for post-

conviction relief (PCR). He was convicted at trial for his role in a gang-related

double homicide. The jury found him guilty of murder with respect to on e of

the victims, twenty-three-year-old Michael Hawkins, and aggravated

manslaughter with respect to the other victim, eighteen-year-old Muriah Huff.

Defendant, who was a minor when the crimes were committed, raises numerous

contentions in this appeal. Most were decided by the PCR court without an

evidentiary hearing. All of defendant's PCR claims assert that he received

ineffective assistance of counsel at various stages of the criminal proceedings.

With respect to all but two of defendant's contentions, the PCR judge,

Judge John Thomas Kelly, concluded that defendant failed to establish that

counsel rendered ineffective assistance. Judge Kelly found that counsel had

rendered ineffective assistance with respect to the State's motion to transfer the

case from juvenile to adult criminal court. Judge Kelly nonetheless concluded

that defendant, who was one month shy of his eighteenth birthday when the

homicides were committed, did not suffer prejudice from counsel's failure to

contest the transfer of jurisdiction to adult criminal court. Judge Kelly

concluded that it was not reasonably probable that the outcome would have been

different had defendant opposed the State's waiver motion.

A-1446-18T4 2 After convening a three-day evidentiary hearing, Judge Kelly further

found that counsel rendered ineffective assistance in failing to thoroughly

investigate a potential alibi witness. However, based on his observation of the

witness's testimony at the hearing, Judge Kelly determined that he would have

been a poor alibi witness and ultimately would have caused more harm than

good for the defense had he testified at trial. Judge Kelly thus found that

defendant failed to establish that he suffered prejudice from counsel's failure to

thoroughly investigate that witness's potential testimony.

We have reviewed the record in light of defendant's contentions, the

parties' briefs, including defendant's pro se submissions, and the applicable legal

principles that govern this appeal. We agree with the PCR court that with two

exceptions, defendant's PCR claims are either procedurally barred or else fail to

meet the Strickland1 standard for proving that counsel's performance fell outside

the range of reasonable professional assistance. With respect to defendant's

juvenile waiver contention, we agree with the PCR judge that while counsel's

performance was deficient, it is not reasonably probable that jurisdiction would

have remained in juvenile court had counsel advised defendant to contest the

State's waiver motion. We also agree with the PCR court that while counsel was

1 Strickland v. Washington, 466 U.S. 668 (1984). A-1446-18T4 3 obligated to more thoroughly investigate the potential alibi witness, his

testimony at trial would not have changed the verdict and if anything would have

undermined the defense. We therefore affirm the denial of PCR substantially

for the reasons set forth in Judge Kelly's thorough and cogent oral opinion.

I.

We briefly summarize the procedural history leading up to this appeal.

Defendant was one of nine persons who were charged in connection with the

gang-related double homicide. The State filed a motion pursuant to N.J.S.A.

2A:4A-26 (repealed 2016) to transfer jurisdiction from juvenile to adult criminal

court. The Family Part judge granted the application after defendant waived his

right to a hearing on advice of counsel.

Defendant was thereafter charged by indictment with multiple counts

including (1) first-degree murder, (2) first-degree felony murder, (3) first-degree

kidnapping, (4) first-degree conspiracy to commit murder/kidnapping, (5) third-

degree possession of a weapon for an unlawful purpose, (6) fourth -degree

unlawful possession of a weapon, and (7) third-degree hindering apprehension

or prosecution.

Defendant moved to suppress an incriminating statement he gave to police

during a custodial interrogation. The trial court conducted an evidentiary

A-1446-18T4 4 hearing after which it denied defendant's suppression motion. The case

proceeded to trial. The jury found defendant guilty of the murder of Michael

Hawkins, the aggravated manslaughter of Muriah Huff, criminal restraint,

kidnapping, conspiracy to commit murder, and hindering apprehension.

The trial judge sentenced defendant to an aggregate term of forty-five

years in state prison. More specifically, the judge sentenced defendant to a

thirty-year term of imprisonment and parole ineligibility on the murder

conviction and a consecutive fifteen-year sentence subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter

conviction. The sentences imposed on the remaining counts run concurrently to

the murder/aggravated manslaughter consecutive sentences.

On direct appeal, we affirmed the trial convictions and consecutive

sentences but remanded for the trial court to merge the conspiracy counts with

the substantive offenses. State v. Leonce, No. A-3711-13 (App. Div. Sept. 16,

2016). The New Jersey Supreme Court denied certification. State v. Leonce,

229 N.J. 602 (2017).

Defendant filed a pro se PCR petition that was followed by an amended

petition submitted on defendant's behalf by assigned counsel. Defendant raised

nine distinct issues for the PCR court's consideration. All of defendant's PCR

A-1446-18T4 5 contentions assert that he received ineffective assistance of counsel pertaining

to the waiver to adult court, the motion to suppress his statement, the jury trial,

and the sentencing hearing. Judge Kelley ordered an evidentiary hearing only

on whether trial counsel was ineffective for failing to investigate and call three

specified witnesses at trial. The PCR court denied defendant's request for an

evidentiary hearing with respect to the other contentions. After hearing oral

argument, Judge Kelly denied defendant's petition for PCR for reasons spelled

out in a comprehensive and highly detailed oral opinion that spans forty-nine

pages of transcript. Defendant now appeals from that decision.

II.

The facts adduced at trial concerning defendant's role in the brutal killing

of Michael Hawkins and Muriah Huff are recounted in our prior opinion and

need only be briefly summarized in this opinion. Defendant was a member of

the Luerdes Park Piru gang, which is associated with the Bloods. Michael

Hawkins was a member of a rival gang, the Hoover Crips. Muriah Huff was not

affiliated with a gang.

On February 22, 2010, both victims visited the residence of codefendant

Dennis Welch on Berkley Street in Camden. Other members of the Luerdes

Park Piru gang lived in that house, which was rented by Welch's mother. Gang

A-1446-18T4 6 members who were present believed Hawkins had previously stolen a bottle of

liquor from them. At some point, Huff left Welch's bedroom and went

downstairs. Hawkins remained in the bedroom with defendant, Welch, and

several other Luerdes Park Piru gang members. An upper-echelon gang member

ordered female gang members in the house to distract Huff. After a few minutes,

Hawkins began screaming, "stop, please help me." Huff tried to go upstairs

when she heard the screaming but the female gang members prevented her from

assisting Hawkins.

Defendant, Welch, and several other gang members kicked Hawkins and

beat him with their fists and a baseball bat. They tied him up, placed duct tape

over his mouth, and shoved him into the bedroom closet. They then rummaged

through Hawkins's backpack and discovered a piece of paper linking him to the

rival Crips gang. They took a photograph of Hawkins showing him bound and

beaten and electronically sent the photo to other Luerdes Park Piru gang

members with instruction to come to the house immediately.

When they arrived at the house, the other gang members, including the

gang leader, proceeded upstairs to Welch's bedroom. One of the gang members

opened the closet door whereupon the leader shot Hawkins in the head five times

from a distance of six inches. Hawkins was still breathing, however. The leader

A-1446-18T4 7 told the other members, including defendant, to "finish him." The leader and

Welch then went downstairs to confront Huff. The gang members remaining in

the bedroom proceeded to beat Hawkins to death, breaking every bone in his

face.

Defendant went downstairs to find the gang leader screaming at Huff that

she "set him up." Huff pleaded for her life, claiming she "didn't do it." The

gang leader put his gun against Huff's head and pulled the trigger, but the gun

was empty. He then struck Huff with the gun twice in the face and ordered the

female gang members to "F her up." As instructed, the females began beating

Huff.

During the attack, Huff pleaded for the female assailants to stop,

screaming that "she didn't know, and she didn't do it." Welch's mother, who

rented the house, attempted to intervene. The female gang members ignored

her, and Welch escorted his mother to her bedroom and told her to stay there.

The assault on Huff continued mercilessly. One of the female assailants

broke a chair over Huff. The females then used parts of the broken chair to

strike the victim. Despite Huff's continuing pleas and her promise that she

would remain silent, the gang leader ordered the females to kill Huff. One

female attempted to strangle Huff with her hands. Eventually, one of the mal e

A-1446-18T4 8 gang members handed her a rope to use as a ligature. The female assailant

placed the rope around Huff's neck, put her knee against Huff's back, and pulled

on the rope. When that technique failed, a male gang member joined in pulling

on the rope as Huff tried desperately to resist. The female then picked up a knife

and attempted to stab Huff while the male gang member continued to pull on the

rope around Huff's neck. The female tried to stab Huff, but the knife "just kept

bouncing off." A male gang member took the knife and stabbed Huff several

times. Defendant checked Huff's pulse and determined she was still alive. 2 The

State maintains that defendant then took a plastic bag and placed it over Huff's

head, finally killing her. 3

The gang members stripped the victims' clothing and carried the bodies to

the basement. Defendant participated in cleaning up the house and disposing

the baseball bat, rope, and victims' clothing. Defendant, Welch, and a third male

gang member then dug a hole in the back yard and buried the victims. Police

discovered the bodies three days later.

2 One of the female gang members, Shatara Carter, who was also Leonce's girlfriend, gave conflicting testimony, initially stating that defendant had checked Huff's pulse but later claimed that "he didn't touch her." 3 Shatara Carter also told police that defendant placed the plastic bag over Huff's head. She testified at trial, however, that she was the one who placed the bag over the victim's head. A-1446-18T4 9 III.

Defendant, through his assigned counsel, raises the following contentions

for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THE TESTIMONY OF DONALD WILLIAMS WOULD HAVE ESTABLISHED AN ALIBI TO THE MURDERS OF HAWKINS AND HUFF, THEREBY RAISING REASONABLE DOUBT REGARDING DEFENDANT'S GUILT.

POINT II

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TRIAL COUNSEL WAS INEFFECTIVE AT SENTENCING IN FAILING TO ARGUE DEFENDANT WAS RECEIVING A SENTENCE THAT WAS THE EQUIVALENT OF LIFE IMPRISONMENT.

POINT III

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE DEFENDANT REGARDING ALL ASPECTS OF HIS JUVENILE WAIVER HEARING, INCLUDING HIS RIGHT TO CALL WITNESSES ON HIS BEHALF AND FAILING TO INFORM HIM HE

A-1446-18T4 10 COULD CHALLENGE EVIDENCE THE STATE WAS PRESENTING AGAINST HIM.

Defendant also submitted a pro se brief raising the following contentions:

THE PCR COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF OR IN THE ALTERNATIVE, ORDERING AN EVIDENTIARY HEARING ON [DEFENDANT]'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING THE STATE TO PRESENT CONFLICTED THEORIES THAT WAS VIRTUALLY UNCONTESTED. THIS VIOLATION DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO INFORM PETITIONER AND/OR HIS PARENT OF THE RISKS AND CONSEQUENCES OF AGREEING TO A VOLUNTARY WAIVER TO ADULT COURT AND FOR FAILING TO ADVISE PETITIONER OF HIS RIGHTS AT THE JUVENILE WAIVER HEARING.

C. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO CALL PETITIONER

A-1446-18T4 11 AND HIS MOTHER TO TESTIFY AT HIS SUPPRESSION HEARING.

D. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR NOT CALLING PETITIONER TO TESTIFY AT TRIAL.

E. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO OBJECT TO DETECTIVE PATRICIA TULANE'S INADMISSIBLE HEARSAY TESTIMONY.

F. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO CALL ARNETTA WELCH, DONALD WILLIAMS JR. [,] AND CLIVE HINDS AS DEFENSE WITNESSES AT TRIAL.

G. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR DISMISSING COUNTS SEVENTEEN AND EIGHTEEN OF THE INDICTMENT.

THE STATE'S STAR WITNESS DARRLY [SIC] PIERRE RECANTED HIS TESTIMONY ON DEFENDANT'S POST-CONVICTION RELIEF, WHICH SUBSTANTIALLY DEPLETED THE STATE'S EVIDENCE AGAINST THE DEFENDANT.

A-1446-18T4 12 POINT III

THE DEFENDANT MUST BE RESENTENCED WITH THE COURT GIVING DUE CONSIDERATION THAT THE MILLER /ZUBER[5] [4]

FACTORS WHICH ARE CONSTITUTIONALLY REQUIRED FOR IMPOSING LENGTHY, CONSECUTIVE TERMS OF IMPRISONMENT ON JUVENILE OFFENDERS BEING SENTENCED IN ADULT COURT.

IV.

We begin our analysis by acknowledging the legal principles governing

this appeal. Post-conviction relief serves the same function as a federal writ of

habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning

for PCR, a defendant must establish by a preponderance of the credible evidence

that he or she is entitled to the requested relief. Ibid. (citations omitted). The

defendant must allege and articulate 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).

Both the Sixth Amendment of the United States Constitution and Article

1, paragraph 10 of the State Constitution guarantee the right to effective

assistance of counsel at all stages of criminal proceedings. Strickland, 466 U.S.

4 Miller v. Alabama, 567 U.S. 460 (2012). 5 State v. Zuber, 227 N.J. 422 (2017). A-1446-18T4 13 at 686 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); State v.

Fritz, 105 N.J. 42, 58 (1987). To establish a violation of the right to the effective

assistance of counsel, a defendant must meet the two-part test articulated in

Strickland. Fritz, 105 N.J. at 58. "First, the defendant must show that counsel's

performance was deficient. . . . Second, the defendant must show that the

deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.

To meet the first prong of the Strickland test, a defendant must show "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689. A defendant, in other words,

"must overcome the presumption that, under the circumstances, the challenged

action 'might be considered sound trial strategy.'" Ibid. (citation omitted).

Furthermore, in determining whether defense counsel's representation was

deficient, "'[j]udicial scrutiny . . . must be highly deferential,' and must avoid

viewing the performance under the 'distorting effects of hindsight.'" State v.

Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, 466 U.S. at 689). Moreover,

"[t]he quality of counsel's performance cannot be fairly assessed by focusing on

a handful of issues while ignoring the totality of counsel's performance in the

A-1446-18T4 14 context of the State's evidence of [a] defendant's guilt." State v. Castagna, 187

N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991)).

The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Id. at 687. In determining whether defense

counsel's alleged deficient performance prejudiced the defense, "[i]t is not

enough for the defendant to show that the errors had some conceivable effect on

the outcome of the proceeding." Id. at 693. Rather, defendant bears the burden

of showing that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

The second Strickland prong is particularly demanding. "[T]he error

committed must be so serious as to undermine the court's confidence in the jury's

verdict or the result reached." State v. Allegro, 193 N.J. 352, 367 (2008)

(quoting Castagna, 187 N.J. at 315).

Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

his or her ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR

court should grant an evidentiary hearing when a defendant is able to prove a

A-1446-18T4 15 prima facie case of ineffective assistance of counsel, there are material issues of

disputed fact that must be resolved with evidence outside of the record, and the

hearing is necessary to resolve the claims for relief. Id. at 462; R. 3:22-10(b).

To meet the burden of proving a prima facie case, a defendant must show a

reasonable likelihood of success under the Strickland test. Preciose, 129 N.J. at

463. "[C]ourts should view the facts in the light most favorable to a defendant

to determine whether a defendant has established a prima facie claim." Id. at

462–63.

"In order to establish a prima facie claim, a petitioner must do more than

make bald assertions that [he or she] was denied the effective assistance of

counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The

petitioner must allege specific facts sufficient to support a prima facie claim.

Ibid. Furthermore, the petitioner must present these facts in the form of

admissible evidence. In other words, the relevant facts must be shown through

"affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification." Ibid.; see also R. 3:22-10(c) ("Any factual

assertion that provides the predicate for a claim of relief must be made by an

affidavit or certification . . . and based upon personal knowledge of the declarant

before the court may grant an evidentiary hearing.").

A-1446-18T4 16 As a general proposition, we defer to a PCR court's factual findings "when

supported by adequate, substantial and credible evidence." State v. Harris, 181

N.J. 391, 415 (2004) (quoting Toll Bros, Inc. v. Twp. of W. Windsor, 173 N.J.

502, 549 (2002)). However, when the trial court does not hold an evidentiary

hearing, we "may exercise de novo review over the factual inferences drawn

from the documentary record." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923

F.2d 284, 291 n.5 (3d Cir. 1991)). Similarly, we review de novo the PCR court's

legal conclusions. State v. Nash, 212 N.J. 518, 540–41 (2013) (citing Harris,

181 N.J. at 415–16).

We first address defendant's contention that his counsel was ineffective

for failing to argue that the consecutive sentences he received on his murder and

aggravated manslaughter convictions violate the principles set forth in Miller

and Zuber. The United States Supreme Court in Miller held that youth and its

attendant characteristics must be considered at the time a juvenile is sentenced

to life imprisonment without the possibility of parole. 567 U.S. at 465. The

Court outlined a series of relevant factors that courts must consider before

imposing that sentence. Id. at 479–80 (identifying certain characteristics of the

juvenile defendants relevant to sentencing, including the juvenile's role in the

A-1446-18T4 17 offense, the juvenile's history of abuse or neglect, periods of time spent in foster

care, prior suicide attempts, and a limited prior criminal history).

In Zuber, the New Jersey Supreme Court concluded that the same Eighth

Amendment principles addressed in Miller apply to sentences that are the

practical equivalent of life without parole. 227 N.J. at 429. The Court in Zuber

held that before a judge imposes consecutive terms that would result in a lengthy

overall term of imprisonment for a juvenile, the court must consider the Miller

factors along with other traditional concerns. Ibid.

This is not the first time defendant has presented the Miller/Zuber

argument to us. We addressed this contention on the merits when we reviewed,

and ultimately affirmed, defendant's aggregate sentence on his direct appeal .

Leonce, slip op. at 31–32. Rule 3:22-5 provides that "a prior adjudication upon

the merits . . . is conclusive." We therefore agree with the PCR court that

defendant is barred from raising the Miller/Zuber contention in the present PCR

petition under the guise of ineffective assistance of counsel.

Even if we were to disregard the procedural bar, defendant's claim that

counsel rendered ineffective assistance at the sentencing hearing lacks merit

under Strickland analysis. For one thing, contrary to defendant's present claim,

A-1446-18T4 18 his trial counsel did not fail to argue the Miller factors at the time of sentencing. 6

Rather, counsel in his sentencing allocution highlighted defendant's youth and

argued that imposition of consecutive sentences on the homicide convictions

would be the equivalent of life without parole. Counsel, in other words ,

explicitly addressed the Miller factors at the sentencing hearing, arguing that the

sentences imposed on defendant's murder and aggravated manslaughter

convictions should be served concurrently, not consecutively, even though they

involve two different victims. See generally State v. Yarbough, 100 N.J. 627

(1985) (providing guidance on when to impose consecutive sentences); see also

State v. Carey, 168 N.J. 413, 429–30 (2001) (noting that "the multiple-victims

factor [in Yarbough] is entitled to great weight and should ordinarily result in

the imposition of at least two consecutive terms when multiple deaths or serious

bodily injuries have been inflicted upon multiple victims by the defendant");

State v. Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009), aff'd, 201 N.J. 471

(2010) (affirming consecutive sentences imposed for a double murder).

The first Strickland prong requires a defendant to show that counsel,

"made errors so serious that counsel was not functioning as the 'counsel'

guaranteed by the Sixth Amendment." 466 U.S. at 687. In this instance,

6 At the time of sentencing, Zuber had not yet been decided. A-1446-18T4 19 counsel's performance at the sentencing hearing was not constitutionally

deficient. Counsel made appropriate arguments on defendant's behalf with

respect to the factors set forth in Miller and preserved the issue for appellate

review. See State v. DiFrisco, 174 N.J. 195, 219–20 (2002) (observing that a

trial strategy's failure to obtain the optimal outcome for a defendant is

insufficient to show that counsel was ineffective) (citing State v. Bey, 161 N.J.

233, 252 (1999)). Accordingly, defendant has not overcome the strong

presumption that counsel's performance at the sentencing hearing fell within the

wide range of reasonable professional assistance. Strickland, 467 U.S. at 689.

Furthermore, defendant cannot show that he was prejudiced by counsel's

performance at the sentencing hearing, especially in view of our ruling on direct

appeal in which we rejected defendant's Miller/Zuber argument and affirmed the

consecutive homicide sentences. Defendant has failed to establish that it is

reasonably probable that any additional arguments counsel might have made at

the sentencing hearing would have led to concurrent sentences or a shorter

aggregate sentence. 7 Defendant has thus failed to establish the second prong of

the two-part Strickland test. 466 U.S. at 694.

7 We note that the thirty-year period of parole ineligibility was the minimum sentence that could be imposed on defendant's murder conviction. N.J.S.A.

A-1446-18T4 20 VI.

Defendant next contends his counsel rendered ineffective assistance in

challenging the admissibility of the incriminating statement defendant gave to

police. Specifically, defendant contends counsel was ineffective by not calling

him and his mother to testify at the suppression hearing.

Counsel argued before the motion court that defendant's statement was not

voluntary because (1) his sister accompanied him to the interview and her

children were also being investigated in this case; (2) neither of his parents were

present; and (3) he did not understand some of the language used to explain his

Miranda rights. The motion court rejected those arguments, finding that the

investigator's testimony concerning her efforts to reach out to defendant's

parents was credible and that those efforts were constitutionally sufficient. See

State v. Presha, 163 N.J. 304, 316 (2000) (holding that police officers must use

their best efforts to locate a parent or legal guardian before beginning a custodial

interrogation of a minor; the prosecutor must show to the trial court's satisfaction

2C:11-3(b). The trial judge did not impose the life sentence authorized by N.J.S.A. 2C:11-3(b), which, under NERA, would have resulted in a parole ineligibility term of almost sixty-nine years. Furthermore, the fifteen-year sentence imposed on defendant's aggravated manslaughter conviction is at the lower end of the ten-to-thirty-year range authorized pursuant to N.J.S.A. 2C:11- 4(c). A-1446-18T4 21 that police were unable to locate a parent (citing In re J.F., 286 N.J. Super. 89,

98 (App. Div. 1995))). The motion court concluded ultimately that defendant's

statement was voluntary and admissible.

On direct appeal, we affirmed the motion court's denial of defendant's

suppression motion. Leonce, slip op. at 22–28. In reaching our conclusion that

defendant's statement was properly admitted, we relied in part on the motion

court's finding that Investigator Tulane was credible when she testified as to the

efforts she made to locate defendant's parents prior to questioning him. We

ruled that the efforts that were undertaken by Investigator Tulane to locate

defendant's parents were sufficient and that the interrogation was properly

conducted with defendant's older sister standing in place of a parent. Leonce,

slip op. at 27–28.

As we have noted, Rule 3:22-5 precludes consideration of a PCR claim

that has already been adjudicated on the merits. In an effort to circumvent that

procedural bar, defendant seeks to recast his previously adjudicated suppression

argument as an ineffective assistance of counsel claim. We agree with the PCR

court that defendant's present ineffective assistance claim is substantially similar

to the voluntariness argument we have already rejected. But even assuming that

defendant's ineffective assistance contention is not procedurally barred under

A-1446-18T4 22 Rule 3:22-5, we conclude defendant has failed to establish either prong of the

Strickland test with respect to counsel's performance at the suppression hearing.

We first address defendant's contention that counsel was ineffective for

failing to have defendant testify at the hearing. In order to establish that counsel

rendered constitutionally deficient assistance based on the failure to call a

witness, a defendant seeking to establish the first prong of the Strickland test

must overcome the presumption that the failure to call the witness "might be

considered sound trial strategy." State v. Arthur, 184 N.J. 307, 320 (2005)

(quoting Strickland, 466 U.S. at 689). Determining which witnesses to call to

the stand is an "an art." Id. at 321 (quoting Strickland, 466 U.S. at 693).

A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.

[Id. at 320–21.]

Given the difficulty inherent in selecting witnesses, a court's review of counsel's

decision must be "highly deferential." Id. at 321 (quoting Strickland, 466 U.S.

at 689).

A-1446-18T4 23 Applying that deferential standard of review to the circumstances

presented in this case, we agree with the PCR court that it was a reasonable

strategic decision to prevent defendant from being subjected to cross -

examination by the prosecutor. We therefore conclude that the decision not to

have defendant testify fell within the range of reasonable professional

assistance. Strickland, 466 U.S. at 689.

Furthermore, defendant has not established that he was prejudiced by the

decision not to call him as a witness at the suppression hearing. Defendant has

not presented any new legal or fact-sensitive arguments that his testimony would

have addressed. As we have noted, the motion court found Investigator Tulane

credible as to the circumstances of the interrogation. We therefore agree with

Judge Kelly's conclusion that defendant's testimony would not have had a

reasonable probability of changing the outcome of the suppression motion.

Strickland, 466 U.S. at 694.

We turn to counsel's decision not to call defendant's mother as a witness

at the suppression hearing. Defendant claims in his pro se brief that his mother

would have testified that police prevented her from being present during his

interrogation. Cf. Presha, 163 N.J. at 320 (observing that when there has been

a deliberate exclusion of a parent or legal guardian, the juvenile's confession

A-1446-18T4 24 "almost invariably will be suppressed"). However, defendant fails to support

this contention with sufficient, competent proofs.

Defendant "must do more than make bald assertions that [he or she] was

denied the effective assistance of counsel." Cummings, 321 N.J. Super. at 170.

Rather, he must present facts in the form of admissible evidence, that is,

"affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification." Ibid. Given the absence of any

certification or affidavit from defendant's mother asserting that police

affirmatively prevented her from attending the interrogation, we treat this PCR

contention as a bald assertion and reject it.

Defendant also claims his mother would not have allowed defendant's

sister to "fill in" as his guardian for purposes of protecting his Fifth and Sixth

Amendment rights. Defendant asserts in his pro se brief that he presented a

certification to this effect to the court that heard the suppression motion.

However, the record before us does not include any such certification. 8

8 The only certification from defendant in the record asserts that the investigator who took his statement never asked him for his mother's contact infor mation or allowed him to try to contact his mother. This assertion is not enough to warrant an evidentiary hearing to expand the PCR record, much less warrant a new suppression hearing. As noted, to meet the burden of proving a prima facie case, a defendant must show a reasonable likelihood of success under the Strickland

A-1446-18T4 25 In any event, his mother's testimony that she would not have consented to

the interrogation had she been present would not have created a reasonable

probability that the outcome of the suppression hearing would have been

different. Strickland, 466 U.S. at 694. One of the critical issues framed at the

suppression hearing was whether police complied with the rules set forth in

Presha governing the interrogation of minors over the age of fourteen. 163 N.J.

at 317 (explaining that because the defendant was nearly seventeen years old at

the time of the interrogation, stricter rules governing the interrogation of

juveniles under the age of fourteen did not apply).

When the custodial interrogation of a juvenile is lawfully conducted in the

absence of a parent, a parent cannot void that ruling by later claiming he or she

would not have consented to the interrogation had he or she been present. To

hold otherwise would upend the holding in Presha by imposing, for all practical

purposes, a per se rule that requires police to refrain in all cases from conducting

a custodial interrogation without a parent present or else risk suppression of an

two-part test. Preciose, 129 N.J. at 463. We conclude defendant cannot show a reasonable likelihood of satisfying the second prong of the Strickland test in view of the motion court's finding that the investigator was credible in describing her efforts to contact defendant's parents before taking his statement.

A-1446-18T4 26 otherwise voluntary confession at the parent's subsequent election. 9 Defendant

offers no authority for the proposition that an absent parent holds such power to

nullify a trial court's ruling—and in this case, an appellate court's ruling as

well—that police were permitted to proceed with the interrogation in the parent's

absence after having made reasonable efforts to contact the parent.

In sum, the admissibility of a juvenile's confession is determined from the

totality of circumstances that existed when the custodial interrogation was

conducted, including whether police had made a reasonable effort to contact a

parent. When as in this case police made such an effort, thereby satisfying the

rule announced in Presha, admissibility of a confession does not depend on what

might have happened had an absent parent been present. Because we have

already ruled that the custodial interrogation was lawfully conducted in the

absence of defendant's mother, her testimony at the suppression hearing would

not have changed the conclusion that defendant's statement was admissible.

9 Presha held the absence of a parent or legal guardian from the interrogation of a juvenile is a "highly significant factor" when determining whether the minor's waiver of rights was knowing, intelligent, and voluntary. 163 N.J. at 315. The Court did not, however, impose a per se rule requiring in all cases that a parent be present. A-1446-18T4 27 VII.

We turn next to defendant's claim that his counsel was ineffective by

failing to advise him of his right to contest the State's motion to transfer the case

from juvenile to adult criminal court. Judge Kelly found that defendant was

afforded only fifteen minutes notice before being asked to waive his right to

contest the transfer of jurisdiction. Judge Kelly aptly described the lack of prior

notice as "problematic," especially considering the significant sentencing

consequences of an adult homicide conviction as compared to a juvenile

adjudication of delinquency. 10

Judge Kelly concluded that given the abrupt manner in which defendant

was induced by his counsel to consent to the transfer of jurisdiction, defendant

has established the first prong of the Strickland test. The PCR court concluded,

however, that defendant failed to establish the second prong in the Strickland

analysis because it is not reasonably probable that the Family Part judge would

10 A juvenile adjudicated delinquent for murder is not subject to NERA or any other mandatory sentence or term of parole ineligibility. See N.J.S.A. 2A:4A- 44 (permitting the sentencing court to impose a term of imprisonment but not a period of parole ineligibility). The record shows that the Family Part judge explained to defendant the difference between the potential adult sentence and juvenile disposition. Defendant responded that he understood. Defendant and his attorney engaged in a colloquy on the record in which defendant indicated he understood the nature of the proceedings and wished to waive the hearing. A-1446-18T4 28 have denied the State's waiver motion had it been contested. We agree that

defendant has failed to establish that he was prejudiced by counsel's handling of

the State's waiver motion. Given the nature of the charges and the strength of

the State's proofs, it is highly unlikely that counsel could have done anything to

have prevented the transfer of this double homicide prosecution to adult criminal

court.

The statutory framework for waiving a juvenile prosecution to adult

criminal court in force at the time was codified in N.J.S.A. 2A:4A-26 (repealed

2016). That statute provided:

a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:

(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:

(a) Criminal homicide other than death by auto . . . .

[Ibid. (emphasis added).]

A-1446-18T4 29 Our review of the statutory elements set forth in N.J.S.A. 2A:4A-26 shows

that waiver to adult court in this case was virtually assured upon the State's

motion. It is not disputed that defendant was older than fourteen when the

homicides occurred. Indeed, he was just one month shy of turning eighteen.

Nor can it be disputed that defendant was charged with "homicide other than

death by auto." Thus, the only waiver element under N.J.S.A. 2A:4A-26 that

could have been contested was whether there was probable cause to believe that

defendant committed the crimes. 11

Probable cause "is 'a well-grounded suspicion or belief that the juvenile

committed the alleged crime.'" A.D., 212 N.J. at 205 (quoting State v. J.M., 182

N.J. 402, 417 (2005)). "The trial court should find probable cause if the

evidence presented and the reasonable inferences supported by that evidence

give rise to a well-grounded suspicion or belief in the juvenile's guilt." Id. at

221. This standard of proof is similar to the one that guides a grand jury's

determination whether or not to indict. Id. at 205–06.

11 As a result of a 2000 amendment to the waiver statute, juveniles sixteen or older were no longer entitled to present evidence that the prospect of rehabilitation substantially outweighs the reasons supporting the waiver once the State has established probable cause. State ex rel. A.D., 212 N.J. 200, 204 (2012). Accordingly, involuntary waiver in this case essentially would have been automatic once probable cause had been established.

A-1446-18T4 30 The record shows that at the time of the State's waiver application, the

prosecutor was in possession of statements from multiple codefendants that

defendant participated in the homicides. Had the waiver motion been

challenged, the State would have been able to present evidence that satisfies the

probable cause standard of proof. We thus conclude, as did the PCR court, that

defendant suffered no prejudice under the second Strickland prong because the

ultimate outcome of the State's waiver application would have been the same

even if counsel had vigorously opposed the State's motion. Accordingly,

defendant is not entitled to post-conviction relief regarding the transfer of

jurisdiction and ensuing penal consequences. Strickland, 466 U.S. at 687.

VIII.

Defendant contends his counsel rendered ineffective assistance at trial by

failing to object to what defendant now characterizes as "conflicting theories"

as to the manner in which Muriah Huff was killed. Specifically, defendant

contends the State presented conflicting evidence as to whether Huff was

strangled with a rope or suffocated with a plastic bag. He contends that counsel

somehow rendered constitutionally deficient assistance by failing to object to

the introduction of evidence concerning the use of both a rope and plastic bag

to finish off the helpless victim.

A-1446-18T4 31 This contention lacks merit and warrants only brief discussion. R. 2:11-

3(e)(2). It is legally irrelevant for purposes of this appeal whether the victim's

death resulted ultimately from strangulation by ligature or suffocation. The

State adduced evidence the victim was subjected to both forms of lethal force,

as well as to stabbing and beating. In these circumstances, defendant's

culpability as an active participant in this brutal crime does not depend on which

of these types of lethal force finally caused the victim's death. The State was

permitted, in other words, to present multiple "theories," to use defendant's

characterization. Any objection made by counsel on the grounds defendant now

posits would have been frivolous. We therefore affirm the denial of PCR on this

contention substantially for the reasons succinctly explained by Judge Kelly.

IX.

We turn next to defendant's contention that counsel was ineffective in

advising him not to testify at trial. He further argues that the PCR court should

have convened an evidentiary hearing to examine counsel's basis for advising

defendant not to testify. We agree with the PCR court that defendant has failed

to establish a prima facie case warranting an evidentiary hearing much less

grounds for a new trial.

A-1446-18T4 32 Defendant claims he told his attorney he wanted to testify on his own

behalf in order to rebut the State's "lies," but his attorney advised him not to take

the stand because that would increase the chance of conviction. Defendant

acknowledges on appeal that in the statement he gave to police, he admitted to

being a gang member and also admitted to being present at the murder scene.

He now contends that had he testified at trial, he would have acknowledged that

he assaulted Hawkins but was outside the house when the gang leader came by

to kill Hawkins. He also maintains that his credibility as a witness would have

swayed the jurors.

These assertions are unpersuasive. We do not believe that counsel was

ineffective in advising defendant not to testify. As the PCR judge correctly

ruled, defendant has failed to establish a reasonable likelihood of su ccess under

the Strickland two-pronged test. Defendant therefore has not established a prima

facie case warranting a hearing to expand the record. Preciose, 129 N.J. at 463.

The testimony that defendant now claims he would have given would only have

corroborated the State's proofs that he had beaten Hawkins shortly before his

death. Defendant also would have been subject to cross-examination as to the

timing and sequence of events that might further have exposed his culpability.

We therefore conclude that counsel's advice was sound strategy that we decline

A-1446-18T4 33 to second guess. See Norman, 151 N.J. at 37 ("'Judicial scrutiny of counsel's

performance must be highly deferential,' and must avoid viewing the

performance under the 'distorting effects of hindsight.'" (quoting Strickland, 466

U.S. at 689)).

We further conclude that defendant has failed to establish the second

Strickland prong. Despite defendant's confidence in his ability to sway the

jurors, he has not established that it is reasonably likely that had he testified and

admitted that he had beaten Hawkins but did not intend for him to die, the trial

verdict would have been more favorable.

We add with respect to the potential prejudicial effect of counsel's advice

that the record clearly shows that defendant was told that the decision whether

to testify was his and his alone to make. The trial court engaged defendant in

an appropriate colloquy on the record during which the judge made clear that

defendant had the right to testify on his own behalf notwithstanding the

recommendation of his counsel. Defendant unequivocally stated that he did not

wish to testify. In these circumstances, defendant is hard pressed to show that

he was in any way prejudiced by his attorney's advice.

A-1446-18T4 34 X.

Defendant next claims counsel was ineffective by failing to object to a

hearsay statement made at trial by Investigator Tulane. During direct

examination, the prosecutor asked the investigator where she had received

information that defendant placed the plastic bag on Muriah Huff's head. The

investigator answered that one of the female gang members, Shatara Carter, had

implicated defendant while testifying at trial for another defendant, Clive Hinds.

Defense counsel did not object to this hearsay testimony. Instead, he used

Tulane's hearsay statement in an attempt to discredit her competence and

objectivity, and to highlight the absence of forensic evidence against his client.

During cross-examination, counsel questioned Tulane on this issue and induced

her to admit there was no physical evidence linking defendant to the bag used

to suffocate Huff, only statements of other witnesses. During this cross -

examination, Tulane also indicated that Clive Hinds also implicated defendant

in Huff's death. After Tulane testified that Hinds linked defendant to the plastic

bag, defense counsel attacked the credibility of that statement, noting that Hinds

was also charged with murder, did not provide the statement under oath, and the

statement had not been subject to cross-examination.

A-1446-18T4 35 In his summation, counsel attacked the credibility of the statement

Investigator Tulane relied upon. Counsel noted that the State had called other

witnesses, including Shatara Carter, who testified that someone other than

defendant placed the plastic bag over Huff's head. Counsel further argued to the

jury that the State had not called Hinds as a witness.

The PCR court noted that a timely objection to Investigator Tulane's

hearsay testimony might have better served defendant's interests. After

reviewing the record as a whole, and given the benefit of hindsight, we agree

with that observation. Cf. Norman, 151 N.J. at 37 (cautioning reviewing courts

to avoid judging counsel's performance under the "distorting effects of

hindsight." (quoting Strickland, 466 U.S. at 689)). But we also agree with the

PCR judge that the decision not to object to the hearsay statement was a

reasonable strategic choice when viewed in the context of counsel's cross

examination of Tulane and his closing arguments challenging her credibility and

investigative prowess. Allowing the jury to hear about Hind's assertion via

Tulane provided an opportunity for the defense to expose the investigator's

reliance upon self-interested sources of information. It also enabled counsel to

argue that Tulane relied on statements made by a witness the prosecutor did not

present before the jury.

A-1446-18T4 36 In view of the high degree of deference afforded to trial counsel in making

such strategic choices, we conclude that defendant has failed to overcome either

the "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance," Strickland, 466 U.S. at 689, or the closely

related presumption that the challenged action "'might be considered sound trial

strategy.'" Ibid. (citation omitted).

XI.

Defendant next contends that his trial counsel rendered ineffective

assistance by failing to object to the State's motion to dismiss two counts of the

indictment pertaining to the rope used in the course of killing Muriah Huff. This

contention lacks sufficient merit to warrant extensive discussion in this opinion.

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

The indictment identified the rope as a weapon used against Muriah Huff

and charged defendant with possession of the rope and possession for an

unlawful purpose. The prosecutor moved to dismiss those weapons counts at

the conclusion of the State's case in recognition that the State had presented no

testimony that defendant possessed the rope. The record shows that d efendant

considered whether to object to the dismissal but elected not to do so when the

judge explained that if counsel objected and commented on the dismissal in his

A-1446-18T4 37 summation, the prosecutor would be permitted to respond to the defense

argument in the State's summation. We conclude, as did the PCR court, that

counsel's election to refrain from objecting in these circumstances was a

strategic decision that falls within the range of reasonable professional

XII.

We turn next to defendant's contention that his counsel was ineffective by

failing to thoroughly investigate and call three witnesses to testify at trial:

Donald Williams, Clive Hinds, and Arnetta Welch. As to these contentions,

Judge Kelly found that defendant had established the need to expand the record.

The PCR court thereupon convened an evidentiary hearing that was conducted

over the course of three days.

We note that the standard of review we apply is more limited when a PCR

judge holds an evidentiary hearing. See State v. Nash, 212 N.J. 518, 540 ("Our

standard of review is necessarily deferential to a PCR court's factual findings

based on its review of live witness testimony."). We also have already

acknowledged the deferential standard that applies under Strickland analysis

when reviewing an attorney's decision whether to call a witness. See Arthur,

184 N.J. at 321 (opining that a PCR court's review of counsel's decision whether

A-1446-18T4 38 to call a witness must be "highly deferential" (quoting Strickland, 466 U.S. at

689)).

A.

Because our review is necessarily fact-sensitive, we address defendant's

ineffective assistance claims with respect to each potential witness separately.

We begin with defendant's contention that his counsel was ineffective for failing

to properly investigate the potential testimony of Donald Williams. Williams

certified that he was outside the house smoking marijuana with defendant during

the murders and "never heard [defendant] threaten or kill anyone." Defendant

thus contends Williams would have served as an alibi witness.

At the evidentiary hearing, both defendant and his trial counsel testified

that defendant informed counsel that defendant was outside smoking marijuana

with Williams at the time of the murders. Counsel testified that he believed that

Williams' version was inconsistent with the testimony expected from other

witnesses in the case. Counsel candidly acknowledged, however, that he did

not perform a complete investigation with respect to Williams' potential

testimony.

Judge Kelly found that counsel's failure to perform a thorough

investigation into whether Williams might have provided helpful testimony was

A-1446-18T4 39 unreasonable and amounted to ineffective assistance. We agree with the PCR

judge that defendant has established the first prong of the Strickland test. Our

focus thus turns to whether defendant has also established that he suffered

prejudice by the failure to call Williams as a defense witness at trial.

Both Williams and defendant testified at the PCR evidentiary hearing. As

Judge Kelly emphasized in his factual findings, their versions of events were not

consistent. Williams testified he and defendant were smoking marijuana in

Williams's car for about an hour outside the house in which Hawkins and Huff

were murdered. Williams testified that no one exited the house to talk to

defendant and that once they were done smoking marijuana, defendant went into

the house and did not come back out. Williams then left.

The version of events defendant presented in his PCR hearing testimony

was very different. Defendant testified that while he was in the car with

Williams, the gang leader exited the house, told defendant something happened

inside the home, and instructed defendant to go inside. Defendant testified that

when he went inside, he learned the murders had occurred. He then went outside

to tell Williams what happened.

The PCR court found that, "given these inconsistencies, Williams would

have been a poor alibi witness. His version of events place defendant at the

A-1446-18T4 40 property and in fact inside Berkley Street at the time of the murders and gave

him ample opportunity to participate." Judge Kelly concluded that, "if Mr.

Williams in fact had been called as a witness, he would have tremendously

harmed [defendant's] position."

Our own review of the record supports Judge Kelly's finding that Williams

would have been a weak alibi witness at best, especially because the timeline he

presented gave defendant ample time to participate in the murders. As the PCR

court aptly noted, Williams's testimony would have placed defendant at the

scene of the crime smoking a copious quantity of marijuana. We therefore

affirm the PCR court's ruling that defendant failed to establish that it is

reasonably probable that the outcome of the trial would have been different had

Williams testified for the defense. Strickland, 466 U.S. at 694; see also State v.

Drisco, 355 N.J. Super. 283, 291 (App. Div. 2002) ("Counsel's fear that a weak

alibi could cause more harm than good is the type of strategic decision that

should not be second guessed on appeal.").

B.

Hinds testified at the evidentiary hearing that defendant was outside the

house at the time the murders were committed inside. However, it is highly

unlikely that Hinds would have been available to testify at defendant's trial, and

A-1446-18T4 41 even if he were, his credibility as a defense witness would have been impeached

by prior statements he gave to police that inculpated defendant in the killings.

After reviewing the record, we affirm the PCR court's conclusion that defendant

has not established either prong of the Strickland test by his counsel's failure to

secure Hinds as a trial witness.

At the time of defendant's trial, Hinds's own trial conviction arising from

the Hawkins and Huff homicides was pending on appeal. Defendant's trial

counsel testified at the PCR evidentiary hearing that he would not have been

able to call Hinds as a witness without consulting with Hinds's appellate

attorney. Counsel testified that he "could not imagine that [Hinds's] appellate

counsel would have given [Hinds] favorable advice about testifying at

[Leonce's] trial."

Judge Kelly concurred with that assessment. The PCR court observed,

"[o]bviously, testimony given in court [at defendant's trial], when [Hinds] chose

not to testify in his own trial, would have harmed [Hinds] going forward in his

appellate work." The court concluded that "no competent counsel would have

allowed [Hinds] to testify."

We agree that it is unlikely that Hinds's appellate counsel would have

allowed Hinds to testify at defendant's trial while his own appeal was still

A-1446-18T4 42 pending. Importantly for purposes of our application of the Strickland/Fritz test,

defendant has not produced any evidence in the form of a certification or

affidavit from Hinds's appellate counsel to suggest that Hinds would have

testified had he been subpoenaed by defendant's counsel. Defendant has thus

failed to show that Hinds was available to present an alibi defense at defendant's

trial.

In these circumstances, we do not believe that defendant's counsel was

ineffective for failing to secure Hinds as a trial witness. But even assuming that

counsel was constitutionally derelict in his efforts to secure Hinds' testimony,

we conclude, as did Judge Kelly, that defendant has failed to show that he

suffered prejudiced from counsel's performance. We reach this conclusion for

two independent reasons. First, as noted, defendant has failed to show that it is

reasonably probable that more diligent efforts by his attorney would have

secured Hinds as a trial witness. To the contrary, it is reasonably probable that

more diligent efforts by counsel would have been unavailing.

Second, even if Hinds had been available as a witness, his testimony

would not have been likely to change the trial outcome because his credibility

as an alibi witness would have been severely undermined by inconsistent

statements he had previously given to police. For example, Hinds had

A-1446-18T4 43 previously stated that defendant was second in command of the gang and had

encouraged the female gang members to kill Huff. Hinds also told Investigator

Tulane that defendant was one of the individuals who tried to strangle Huff.

Judge Kelly considered Hinds's PCR hearing testimony in light of his prior

inconsistent statements and concluded that, "[d]efendant cannot show that the

jury would have credited any testimony of [Hinds] over the other witnesses'

testimony." We add that Judge Kelly's credibility assessment was based in part

of his ability to observe Hind's evidentiary hearing testimony. We therefore

accept the PCR court's finding and conclude that defendant has failed to

establish the second prong of Strickland with respect to the failure to call Hinds

as a witness.

C.

We next address defendant's claim that counsel was ineffective for failing

to call codefendant Welch's mother, Arnetta Welch. Ms. Welch, who rented and

resided in the house where the killings occurred, provided a certification

claiming that she had been willing to testify that she did not see defendant

assaulting Muriah Huff. She also claimed in her certification that defendant's

trial counsel had never reached out to her.

A-1446-18T4 44 Ms. Welch did not testify at the PCR evidentiary hearing because she

could not be located. The PCR judge noted that she also could not be located at

the time of defendant's trial despite efforts by both the prosecutor and

defendant's trial counsel to contact her.

The PCR court also found that had Ms. Welch testified at trial in

accordance with her PCR certification, her testimony would not have altered the

outcome. Ms. Welch had previously given a statement to Investigator Tulane

claiming she did not witness either of the murders. Additionally, Ms. Welch

was not in her son's bedroom when Hawkins was murdered. Furthermore, she

had been taken to her own bedroom at an early stage in the assault upon Muriah

Huff. Presumably, she was removed and isolated to her bedroom so that she

would not be an eyewitness when the attack on Huff escalated to lethal force.

Because she did not have opportunity to observe either homicide, she had no

way of knowing whether, when, and to what extent defendant became involved

in either attack. Her prior statement to police that she had been isolated in her

bedroom, in other words, would have impeached any testimony she might have

given that defendant was not involved in the murders. We therefore affirm t he

PCR court's ruling that it was not reasonably probable that the trial outcome

would have been different had she testified. Strickland, 466 U.S. at 687.

A-1446-18T4 45 XIII.

Finally, we reach defendant's last contention, raised for the first time on

appeal in his pro se brief that Darryl Pierre, a fellow gang member involved in

the murders, is prepared to recant his trial testimony. Because defendant did not

raise this newly discovered evidence claim in his PCR petition, he is

procedurally barred from raising it in this appeal. As a general proposition,

appellate courts "decline to consider questions or issues not properly presented

to the trial court when an opportunity for such a presentation is available unless

the questions so raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20

(2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). The

reliability and potential impact of Pierce's possible recantation is not an issue

that goes to the jurisdiction of the trial court. Nor is it a matter of great public

interest within the meaning of this basic principle of appellate practice and

procedure.

Aside from any procedural bar, we decline to exercise original jurisdiction

in determining whether Pierre's anticipated recantation is reliable and whether

it would have had an impact on the verdict in view of the of the other evidence

adduced by the State. See State v. Santos, 210 N.J. 129, 142 (2012) (explaining

A-1446-18T4 46 that Rule 2:10-5 allows an appellate court to exercise original jurisdiction, but

by exercising original jurisdiction, the court "would be addressing an

evidentiary matter that should be addressed, on the record, in the first instance,

by the [trial] court"); see also State v. Carter, 69 N.J. 420, 427 (1976) ("Courts

generally regard recantation testimony as suspect and untrustworthy." (citation

omitted)).

Any additional arguments raised by defendant on appeal that we have not

already addressed lack sufficient merit to warrant discussion in this opinion. R.

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

Affirmed.

A-1446-18T4 47