State of New Jersey v. Keshaun D. Earley

NOT FOR PUBLICATION WITHOUT THE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-3822-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESHAUN D. EARLEY, a/k/a

KESHAWN EARLEY,

KESHAWN EARLY, and

BUDDHA EARLEY,

Defendant-Appellant.

__________________________

Argued March 11, 2025 – Decided September 5, 2025

Before Judges Gooden Brown and Chase.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Indictment No. 13-03-0858.

Lauren S. Michaels, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Lauren S. Michaels, of

counsel and on the briefs).

Kristen Nicole Pulkstenis, Assistant Prosecutor, argued

the cause for respondent (William E. Reynolds,

Atlantic County Prosecutor, attorney; Kristen Nicole

Pulkstenis, of counsel and on the brief).

PER CURIAM

Defendant Keshaun D. Earley appeals from a June 29, 2023 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing in connection with his 2014 convictions for first-degree

murder and related weapons offenses. On appeal, defendant raises claims of

ineffective assistance of counsel (IAC) and argues he is entitled to a new trial

based on newly discovered evidence. Defendant also appeals numerous other

rulings by the trial court, including a December 21, 2021 order partially denying

his motion to compel discovery; a June 21, 2023 order denying his motion to

compel discovery and vacating prior orders; a June 28, 2023 ruling denying his

request for an adjournment; a June 29, 2023 order denying his motion for

recusal; a July 14, 2023 order denying his motion for rehearing; and a July 14,

2023 order denying his motion for reconsideration. Based on our review of the

voluminous record and the applicable legal principles, we affirm.

I.

On March 20, 2013, defendant was charged in a three-count Atlantic

County indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2);

second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

A-3822-22

2

2C:39-4(a); and second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b). Following a jury trial, defendant was convicted on all counts,1 and

sentenced to an aggregate term of forty years in prison, subject to the eighty-

five percent parole ineligibility provisions of the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

In an unpublished opinion, we affirmed defendant's convictions but

vacated his sentence, finding that the court had engaged in impermissible

double-counting. State v. Earley, No. A-5051-13 (App. Div. Mar. 17, 2017)

(slip op. at 38-39). Subsequently, our Supreme Court denied certification, State

v. Earley, 230 N.J. 537 (2017), and the United States Supreme Court denied

certiorari, Earley v. New Jersey, 583 U.S. 1102 (2018). Defendant was

resentenced by the trial court in July 2017 to an aggregate term of thirty years

in prison, subject to NERA.

We incorporate by reference the detailed recitation of the facts contained

in our unpublished opinion. To summarize, the charges against defendant

1

Defendant filed two post-trial motions for a new trial pursuant to Rule 3:20-

1, arguing that the eyewitness identification jury charge was erroneous and that

the convictions were against the weight of the evidence. Defendant also filed a

post-trial motion to dismiss the indictment, claiming his due process rights were

violated because of the State's continued bad faith related to the destruction of

surveillance footage. The trial court denied all three motions.

A-3822-22

3

stemmed from the shooting death of James Jordan in Atlantic City on August

26, 2012, outside Carver Hall, the apartment community of Jordan's aunt, Nicole

Jones. During the trial, the State produced eighteen witnesses consisting of

civilians, law enforcement, a representative from Sprint, the

telecommunications company, and a forensic pathologist. The defense produced

one witness, a private investigator. Defendant did not testify at trial , but his

taped statement to police was played for the jury during the State's case.

The State's case relied primarily on eyewitness identifications of

defendant as the shooter by Jones, Ny-Taijah Ceasar, and Kevin Brown.2 The

three made these identifications both on the day of the murder and in court.

Their testimony established that, shortly before noon on August 26, 2012,

Jones sent Kevin Brown and an individual nicknamed

"Meat" to buy food for [a] breakfast at the nearby High

Gate apartment complex.

When the two men returned, they were

approached outside Carver Hall by Jordan, who was

Jones's nephew. As Brown spoke with Jordan,

"[defendant] . . . came from around the corner" with "a

shirt tied around his face," which prompted Brown to

ask Jordan "who was that[?]" When Jordan "blew []

off" his question, Brown "started backing off" because

he thought he was being set up. The white tee shirt

2

We refer to Kevin Brown and Quaran Brown by their first and last names to

avoid confusion caused by their common surname. In the passage incorporated

from our unpublished opinion, we refer to Kevin Brown by his surname only.

A-3822-22

4

initially prevented Brown from recognizing the

gunman. Brown then saw the man fire one shot,

striking Jordan. As Brown was still backpedaling, he

saw the suspect's face after he dropped the gun, reached

down for it, and the tee shirt fell from his face.

Brown ran into a nearby building, where he met

Jones "a couple minutes after everything happened."

Brown told Jones "it was Buddah"[3] who shot Jordan.

Brown testified he knew defendant prior to the shooting

because they had been "incarcerated a couple of times"

together, and he had "seen him [on] the streets a couple

of times," even though defendant "[didn't] hang out in

that area."

When the shooting occurred, Jones was talking to

her other guests in front of a window in the living room

of her apartment. Jones testified that, after hearing the

shot, she looked out the window and saw: "Budd[ah]

dropped the gun, and when he went down to pick it up,

he had a towel or like a shirt over his head that fell."

She described the shooter, who[m] she identified as

Buddah, as "ha[ving] brown skin, kind of tall, skinny,"

and wearing "a white short-sleeve shirt [], some blue

jeans," with something white hanging from his head.

At the same time, Jones's friend, . . . Ceasar, also yelled

"that's Budd[ah], that's Budd[ah]." Jones testified she

recognized the suspect as Buddah before Ceasar began

shouting.

Before Jones went to the police station, she made

phone calls in an attempt to ascertain Buddah's true

identity. Jones testified she knew Buddah because

3

Defendant's nickname, Buddah, alternately appears as Buddha in

various portions of the record.

A-3822-22

5

"[she had] seen him around a few times," and "[h]e

came to [her] house like two times." She later testified

she was not acquainted with defendant but had seen him

at Carver Hall about three times in the two or three

months before the shooting. According to Jones,

Buddah "put the towel on his head" after it fell off

before retrieving the black handgun. Jones saw Brown

and Jordan, who[m] she did not know had been shot,

run from the scene. She also saw Buddah run behind

the building and out of her view before reappearing and

running across Absecon Boulevard and the Brigantine

connector road to a field on the other side.

Ceasar testified that she had been friends with

defendant for several years at the time the shooting

occurred. On that day, he was wearing "shorts, army

fatigue material with a white shirt and a white shirt over

his face." Ceasar stated she was looking out the

window before the shooting and saw Buddah approach

Brown and Jordan and then shoot Jordan. She

observed: defendant had the gun in his hand as he

approached; he shot the victim once; his shirt fell off

his face for less than ten seconds; he picked the shirt

and gun up; and ran across the highway. As this

occurred, she yelled out the window, "oh my God, that's

Budd[ah]."

....

. . . Neither the gun nor any ballistics evidence

was recovered. The State's forensic pathologist

conducted an autopsy and testified that Jordan died

from a gunshot wound to his chest.

[Earley, slip op. at 4-7 (all but first, fifth, ninth,

fourteenth, sixteenth, and seventeenth alterations in

original).]

A-3822-22

6

In his taped statement to police, defendant repeatedly denied being in

Atlantic City on the day of the shooting, first stating that he never left Mays

Landing and only traveled between his Oakcrest Estates apartment and his

girlfriend's house. Ultimately, however, defendant admitted that he went to

Atlantic City, but after 2:00 p.m.

To counter defendant's alibi defense, the State proved defendant's

opportunity to commit the murder through testimony, video footage, and

documentary evidence. Detective Richard Johannessen testified that he

extracted surveillance footage from four systems: one in Carver Hall, two in

grocery stores in the High Gate apartment complex across the road from Carver

Hall, and one in Oakcrest Estates, the apartment complex in Mays Landing

where defendant lived. Detective Lynne Dougherty, the lead detective in the

case, testified that she reviewed, analyzed, and preserved the video footage.

Portions of the footage, which were admitted into evidence and played for the

jury, demonstrated that the murder in Atlantic City occurred at about 12:10 p.m.

and that defendant arrived at Oakcrest Estates around 12:43 p.m., wearing a

"white or light-colored shirt." The State maintained that this period of time was

long enough for defendant to drive from Atlantic City to Mays Landing.

A-3822-22

7

Further, the State presented testimony from Sprint's custodian of records,

Dwight Nichelson, who explained the call records for defendant's cell phone that

were admitted into evidence. The records suggested that the phone remained in

Mays Landing during the murder and showed three inbound calls from 12:00

p.m. to 12:15 p.m. ranging in length from 55 to 340 seconds. Given that the

calls were over thirty seconds long and that the records showed no "forwarding

roll" to voicemail took place, Nichelson testified it was likely "that the call[s]

[were] answered and there was some kind of conversing that went on."

However, the records also showed that defendant did not make any

outbound calls the day of the murder from after 12:09 a.m. until 12:58 p.m. As

testimony from one of defendant's then girlfriends established that the cell phone

was password-protected and that someone without the password could only

answer incoming calls, the State maintained that someone else answered the

phone. Moreover, the State asserted the records were probative of defendant's

guilt since they showed that his "pattern" of returning phone calls and text

messages was "all of a sudden" disrupted in the "block of time" around the

murder.

In June 2018, approximately four years after defendant was sentenced, he

filed a PCR petition alleging IAC. This commenced a protracted and convoluted

A-3822-22

8

process that would span another five years. Defendant was appointed counsel,

who (1) sent the State a letter dated September 27, 2018, requesting confirmation

that the hard drive used to store the surveillance footage had been preserved; (2)

filed a motion dated April 24, 2019, to compel the State to produce the hard

drive (the 2019 motion); and (3) filed an amended PCR petition in March 2020.

Defendant's amended petition asserted, among other things, that his trial

counsel was ineffective by: (1) failing to retain an expert to support his claim

that "an eyewitness's asserted familiarity with the suspect does not mitigate the

risks of misidentification"; (2) neglecting to seek production of the hard drive

during trial; (3) not seeking "a stronger negative inference jury instruction"

about surveillance footage that had been deleted from the hard drive; (4) failing

to subpoena a Facebook representative to authenticate posts on defendant's

Facebook account; (5) promising exonerating evidence in his opening statement;

(6) failing to object to the prosecutor's remarks about ambidexterity during

summation; (7) failing to procure testimony from Carol Johnson, a property

manager who reportedly saw defendant at Oakcrest Estates the day of the

murder; and (8) representing defendant despite previously representing the

murder victim. Defendant also requested a plenary hearing on newly discovered

A-3822-22

9

evidence, specifically, an alleged confession to Jordan's murder by a man

identified as Quaran Brown.

In support of his claims, defendant submitted a certification by his PCR

counsel; a June 1, 2020 report of Dr. Steven Penrod, an expert on eyewitness

identification; a January 29, 2014 report by NuVida Data Forensics containing

an integrated timeline of activity on defendant's cell phone and Facebook

account; still shots from defendant's recorded statement and from the

surveillance footage; a February 24, 2014 investigative report by Atlantic

County Prosecutor's Office (ACPO) Sergeant Justin Furman concerning an

examination of the hard drive; and other photographic and documentary

evidence. Pertinent to his newly discovered evidence claim, defendant

submitted notes handwritten by Kevin Taylor, who had been a fellow inmate of

defendant in 2016; Taylor's signed certification dated February 14, 2019; and an

interoffice memo from the Public Defender's Office documenting the

investigation into the jailhouse confession.

On November 6, 2020, defendant filed a second motion to compel, this

time for discovery related to Quaran Brown's prior convictions and a murder

occurring in Atlantic City in July 2012 (the 2020 motion). A PCR judge heard

oral argument on the merits of defendant's petition on March 11, 2021, but failed

A-3822-22

10

to render a decision. On December 21, 2021, a different PCR judge heard

arguments on the 2019 and 2020 motions to compel discovery. The judge denied

the 2020 motion but granted the 2019 motion, ordering the State to determine

the hard drive's whereabouts and determine whether it was fit for forensic

analysis.

In response, the State informed defense counsel that it "no longer

possesse[d] the hard drive." On April 7, 2022, alleging that the State violated

an August 2013 order to preserve evidence, defendant moved for an order

granting PCR relief or, in the alternative, deeming it a fact that he "did not arrive

at and enter [Oakcrest Estates] . . . between 12:10 p.m. and 12:45 p.m." on the

day of the murder. On April 12, 2022, the PCR judge declined to grant either

of the requested reliefs but ordered the State to respond to interrogatories about

the lost hard drive. Defendant's PCR counsel was later substituted. Substituted

counsel served interrogatories on the State in March 2023, but the State refused

to answer them, stating they sought "irrelevant information." Defendant then

moved to compel the State to answer the interrogatories.

On June 21, 2023, a newly-assigned PCR judge issued an order denying

the motion to compel and vacating the December 21, 2021 and April 12, 2022

orders as "improvidently granted." On June 27, defendant moved for

A-3822-22

11

reconsideration of the June 21 order and requested an adjournment of oral

argument on the pending PCR petition scheduled for the next day. On June 28,

an hour before the hearing, defendant filed a motion for recusal and a motion

for dismissal or for rehearing based upon newly discovered evidence of

prosecutorial misconduct. The judge denied the adjournment request and the

three motions on the record before conducting oral argument on the PCR

petition.

On June 29, 2023, the judge issued an order and forty-two-page

memorandum of decision denying defendant's PCR petition without an

evidentiary hearing. In her decision, the judge meticulously reviewed the facts

and procedural history, recounted the parties' arguments, applied the governing

legal principles, and concluded defendant failed to establish a prima facie claim

of IAC. Regarding defendant's motion for a new trial, the judge found Taylor's

certification incredible and defendant's arguments unsupported, deeming them

"self-serving," "conclusory," and "speculative at best." Accordingly, the judge

concluded that defendant "failed to meet prong one of the test for [a] new trial

based upon newly discovered evidence." The judge also issued an order the

same day denying the motion for recusal before issuing orders on July 14, 2023,

A-3822-22

12

denying the motions for reconsideration and for dismissal or rehearing.4 This

appeal followed.

On appeal, defendant raises the following Points for our consideration:5

POINT I

AS [DEFENDANT] ESTABLISHED A PRIMA

FACIE CASE OF TRIAL COUNSEL'S

INEFFECTIVENESS, THE COURT ERRED WHEN

IT DENIED HIS PETITION FOR POST-

CONVICTION RELIEF WITHOUT CONDUCTING

AN EVIDENTIARY HEARING.

[(A) Defendant] Established A Prima Facie Case,

Requiring The Court Conduct An Evidentiary

Hearing And Vacate His Convictions.

(1) Trial Counsel's Failure To Retain And

Use An Expert On Familiarity At Both The

Wade[6] Hearing And Trial Hamstrung

[Defendant's] Misidentification Defense.

4

The judge noted that the belated motion was an attempt "to amend the PCR"

petition to include an additional IAC claim based on trial counsel's failure to

obtain policies of the ACPO related to evidence retention. Defendant also

asserted that the policies were newly discovered evidence and therefore

constituted an independent ground for a new trial. Separate from her decision

on defendant's PCR petition, the judge found defendant failed to present a prima

facie claim of IAC or to meet the standard for a new trial in the July 14 order.

We integrate these arguments into our analysis of defendant's broader PCR

claims.

5

The Points have been reformatted for clarity and conciseness.

6

United States v. Wade, 388 U.S. 218 (1967).

A-3822-22

13

(a) The Reliability Of Eyewitness

Identifications, Especially The Role

Of Familiarity, Was The Critical

Jury Question, But Jurors Heard No

Evidence That Would Assist Them

In Evaluating It.

(b) [Defendant] Established A Prima

Facie Case That The Failure To

Consult, Obtain, And Use An Expert

Witness Fell Below The Level Of

Reasonable Behavior Expected Of

Competent Counsel, And This

Deficient Performance Prejudiced

His Defense.

(2) Trial Counsel's Failure To Investigate

And Enable Presentation Of Facebook

Posts And Other Evidence Left Him

Unable To Cement [Defendant's] Alibi.

(3) Trial Counsel's Inexplicable Failure To

Demand Production Of The Hard Drive (Or

Take Any Other Action) After Learning

That ACPO Had Not, In Fact, "Wiped" It,

Deprived [Defendant] Of The Opportunity

To Fully Present His Alibi And

Meaningfully Counter The State's Case.

(4) ACPO's Policies Regarding

Preservation, Production, And Destruction

Of Evidence Plainly Demonstrate That The

ACPO Blatantly Violated Its Policies In

This Case; Trial Counsel's Failure To

Obtain Them Deprived The Defense Of

Information Essential To Establishing

ACPO's Bad Faith.

A-3822-22

14

(5) Trial Counsel's Repeated Prior

Representation Of The Victim And His

Brother Warrants An Evidentiary Hearing

On The Conflict Of Interest.

(6) Trial Counsel Overplayed His Hand In

Opening By Promising To Prove

[Defendant's] Innocence, Inviting The

State's Damaging Remarks On His Failure

To Provide Exonerating Evidence.

(7) Trial Counsel Was Ineffective For

Failing To Investigate And Present

Testimony Of Property Manager Carol

Johnson, An Exculpatory Witness.

(8) Trial Counsel Was Ineffective In

Failing To Object To The Prosecutor's

Testimony In Summation Regarding

Ambidexterity, And In Failing To Present

Evidence Of [Defendant's] Left-

Handedness.

(9) Counsel's Errors Cumulatively Denied

[Defendant] Effective Representation.

POINT II

THE MOTION FOR A NEW TRIAL BASED ON

NEWLY DISCOVERED EVIDENCE SHOULD

HAVE BEEN GRANTED.

(A) Newly Discovered Evidence of Third-Party

Guilt.

(B) Newly Discovered Evidence of ACPO's Bad

Faith and Misconduct.

A-3822-22

15

POINT III

THE PCR COURT MADE A SERIES OF

PROCEDURAL RULINGS THAT INDIVIDUALLY

AND COLLECTIVELY DEPRIVED [DEFENDANT]

OF DUE PROCESS AND EFFECTIVE ASSISTANCE

OF COUNSEL, REQUIRING REVERSAL.

(A) The PCR Court's Discovery Decisions Must

Be Reversed.

(1) Discovery Related To The Hard Drive.

(a) [The PCR Court's] Denial Of

[Defendant's] Motion To Enforce

The Earlier Discovery Order

Regarding The Hard Drive, Her Sua

Sponte Vacation Of Prior Discovery

Orders, And The Denial Of [The]

Reconsideration Motion Were

Improper And Demand Reversal.

(b) Alternatively, The Court Should

Have Granted PCR Or The

Alternative Relief Requested In The

April 7, 2022 Motion: Deeming It A

Fact That The Destroyed Footage

Would Have Established

[Defendant] Did Not Arrive By Car

At Oakcrest Estates Between 12:11

And 12:45[ p.m.]

(2) The Court Should Have Permitted

Discovery Related To The Viable Third-

Party Defense.

(B) It Was Wholly Improper To Require

Substituted Counsel To Proceed On The Merits

A-3822-22

16

After She Repeatedly Protested That She Had

Not Completed Investigating And Preparing The

Case.

(C) As An ACPO Supervisor During The Entirety

Of The Investigation And Prosecution Of

[Defendant, The PCR Judge] Abused Her

Discretion In Refusing To Recuse Herself From

Passing Judgment On ACPO's Misconduct In

Destroying Hundreds Of Hours Of Potentially

Exculpatory Information, Failing To Retain The

Hard Drive At The Center Of Substantial Pretrial

Litigation On Spoilation, And Withholding

ACPO's Policies From The Court And The

Defense.

(D) The Denial Of [Defendant's] Motion For

Dismissal Or Rehearing Based On Newly

Discovered Evidence Of Bad Faith Must Be

Reversed.

II.

Many of defendant's arguments center on the ACPO's partial deletion of

the extracted surveillance footage and maintenance of the hard drive that stored

the footage. Defendant argues that his trial counsel was ineffective for failing

"to demand production of the hard drive" upon learning of Furman's February

24, 2014 report that "suggested this 'wiping' had not occurred at all." He

contends that reviewing all of the footage would have corroborated his alibi,

"such as showing that no car came between 12:11 [p.m.] and 12:42[ p.m.]" or

showing him "around the complex that morning and midday, supporting other

A-3822-22

17

aspects of his statement." Relatedly, defendant claims that the PCR judge erred

in denying his discovery requests concerning the hard drive since Furman's

report "showed good cause" and "interrogatories are [not] forbidden in PCR

discovery."

Defendant further argues that he was prejudiced by his trial counsel's

failure to obtain the "publicly available" evidence retention policies in effect at

the ACPO during his case (ACPO policies) because he would have been able to

show the State's bad faith and more "effectively cross-examin[e] ACPO

personnel" at a pre-trial evidentiary hearing. He asserts that, with the benefit of

the ACPO policies, the trial judge would have granted his motion to dismiss the

indictment or given a mandatory adverse inference charge to the jury. Finally,

defendant contends that he is entitled to a new trial because the ACPO policies

were newly discovered evidence and the State's failure to produce them violated

his constitutional rights under Brady.7

Our review of these claims is guided by well-settled legal principles. We

"review the legal conclusions of a PCR court de novo," State v. Reevey, 417

N.J. Super. 134, 146 (App. Div. 2010), and "review under the abuse of discretion

standard the PCR court's determination to proceed without an evidentiary

7

Brady v. Maryland, 373 U.S. 83 (1963).

A-3822-22

18

hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). If the

court "perceives that holding an evidentiary hearing will not aid the court's

analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary

hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997).

"[W]here . . . no evidentiary hearing was conducted," as here, we "may review

the factual inferences the [PCR] court has drawn from the documentary record

de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing

State v. Harris, 181 N.J. 391, 421 (2004)).

An evidentiary hearing for a PCR petition is only required when (1) a

defendant establishes "a prima facie case in support of [PCR]," (2) the court

determines that there are "material issues of disputed fact that cannot be resolved

by reference to the existing record," and (3) the court determines that "an

evidentiary hearing is necessary to resolve the claims" asserted. State v. Porter,

216 N.J. 343, 354 (2013) (alteration in original) (quoting R. 3:22-10(b)); see R.

3:22-10(e)(2) (providing "[a] court shall not grant an evidentiary hearing . . . if

the defendant's allegations are too vague, conclusory or speculative").

"To establish a prima facie case, [a] defendant must demonstrate a

reasonable likelihood that [the PCR] claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

A-3822-22

19

10(b). Moreover, a defendant must make this showing "by a preponderance of

the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002).

Rule 3:22-2 recognizes five cognizable grounds for PCR, including a

"[s]ubstantial denial in the conviction proceedings of [a] defendant's

[constitutional] rights," R. 3:22-2(a), which encompasses the right to the

effective assistance of counsel at issue in this appeal, State v. Nash, 212 N.J.

518, 541-42 (2013). To establish a prima facie claim of the denial of the

effective assistance of counsel as contemplated under Rule 3:22-2(a), a

defendant must demonstrate that the performance of counsel fell below the

objective standard of reasonableness set forth in Strickland v. Washington, 466

U.S. 668, 687-88 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58

(1987), and that the outcome would have been different without the purported

deficient performance. Stated differently, a defendant must show that: (1)

counsel's performance was deficient; and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.

To satisfy the first prong, a defendant must "show[] that counsel made

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

defendant by the Sixth Amendment" and "that counsel's representation fell

below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.

A-3822-22

20

"[I]n making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance . . . ." Id. at 689. As such, a defendant "must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)).

"Merely because a trial strategy fails does not mean that counsel was

ineffective." State v. Bey, 161 N.J. 233, 251 (1999). "No particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89. For that reason,

an otherwise valid conviction will not be overturned

merely because the defendant is dissatisfied with

[defense] counsel's exercise of judgment during the

trial. The 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

context of the State's evidence of defendant's guilt. As

a general rule, strategic miscalculations or trial

mistakes are insufficient to warrant reversal "except in

those rare instances where they are of such magnitude

as to thwart the fundamental guarantee of [a] fair trial."

A-3822-22

21

[State v. Castagna, 187 N.J. 293, 314-15 (2006) (second

alteration in original) (citations omitted) (quoting State

v. Buonadonna, 122 N.J. 22, 42 (1991)).]

To satisfy the prejudice prong, "[t]he error committed must be so serious

as to undermine the court's confidence in the jury's verdict or result reached."

State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694).

This prong generally requires that a defendant establish a "reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694. Failure to

meet either prong of the two-pronged Strickland/Fritz test results in the denial

of a petition for PCR. State v. Parker, 212 N.J. 269, 280 (2012) (citing State v.

Echols, 199 N.J. 344, 358 (2009)). That said, "courts are permitted leeway to

choose to examine first whether a defendant has been prejudiced, and if not, to

dismiss the claim without determining whether counsel's performance was

constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation

omitted) (citing Strickland, 466 U.S. at 697).

In his direct appeal, we addressed "defendant's contention that the trial

court erred in denying his pre-trial and post-trial motions to dismiss the

indictment based on the State's destruction of the bulk of the Oakcrest Estates

surveillance footage." Earley, slip op. at 10. In that regard, after granting

A-3822-22

22

defense counsel's motion to preserve evidence "includ[ing] but . . . not limited

to . . . computer records . . . and all evidence which is exculpatory or which may

lead to exculpatory evidence" on August 7, 2013, the trial court held a pre-trial

evidentiary hearing on February 24, 2014, concerning defendant's motion to

dismiss the indictment grounded on the State's destruction of surveillance

footage from Oakcrest Estates. Dougherty testified she had reviewed the

footage, "mainly focus[ing]" on the period from around noon to 12:43 p.m., the

start of the footage "until . . . defendant [was] picked up" by one of his then

girlfriends, April Tobias, in her car.

In our unpublished opinion, we recounted:

In response to a July 3, 2013 defense request to

view the video discovery, Dougherty instructed

Sergeant Matthew Paley of the Computer Crimes Unit

to extract two portions totaling thirty minutes out of the

total 21[6] hours of video footage from the eighteen

cameras. She testified: . . . "camera [six] was 12:20 to

12:40 [p.m.] . . . , and then camera [twenty-one] was

4:40 to 4:50 [p.m.], so [twenty] minutes and [ten]

minutes." The first extracted portion captured an

individual appearing to be defendant in a store, and the

second extracted portion captured an individual

appearing to be defendant on the playground with his

daughter. The remaining Oakcrest Estates video

footage that Dougherty did not direct Paley to extract

was destroyed. [Paley] explained that once everything

evidential is extracted, the remaining video is deleted

and the hard drive [gets put "back into] service" for use

in future cases.

A-3822-22

23

[Earley, slip op. at 9-10 (third, fifth, sixth, and seventh

alterations in original).]

Dougherty testified that she alone determined what portions of the

Oakcrest Estates footage were relevant. Paley specified that after he extracted

the video on July 5, 2013, Dougherty told him the remainder of the video was

"no longer needed" and did not need to be retained. He stated he returned the

hard drive to Johannessen so that it could be "wiped clean of all previous data"

to be used in future investigations. Johannessen testified he did so using a

"forensic wipe," which "wr[ote] over the hard drive and then reformat[ted] it."

By the time of the pre-trial evidentiary hearing, the State maintained that the

hard drive had been returned to inventory but could not be located.

In response to questioning by the trial court, the State represented that the

ACPO had "thousands of policies and procedures" in place maintained in an

online database. ACPO Captain Brian Barnett testified there was a "standard

operating procedure on the destruction of evidence" for active cases. However,

neither Barnett nor Dougherty knew what the evidence retention policy was.

In denying defendant's pre-trial motion to dismiss the indictment based on

the destruction of the surveillance footage, the trial court applied the three

factors bearing upon whether the destruction of physical evidence amounts to a

due process violation identified in State v. Hollander, 201 N.J. Super. 453, 479

A-3822-22

24

(App. Div. 1985), where we instructed courts to focus on "(1) whether there was

bad faith or connivance on the part of the government; (2) whether the evidence

. . . was sufficiently material to the defense; [and] (3) whether [the] defendant

was prejudiced by the loss or destruction of the evidence." Ibid. (citations

omitted). Although the trial court concluded that the destroyed evidence was

material and that its destruction prejudiced defendant, the court did not find "bad

faith or connivance on the part of the government," given that there "appear[ed]

to be no recognizable or readily available" policy for maintenance, turning over,

or retention of evidence. The court credited Dougherty's testimony that she

reviewed the footage and then just "did what she was told" to do by superiors —

"ma[ke] the call" on what video to delete.

The court nevertheless determined that the ACPO had violated Rule 3:13-

3 and provided the following permissive adverse inference charge to the jury in

the final instruction:

You have heard testimony that the [ACPO]

destroyed and failed to preserve video surveillance

footage from Oakcrest Estates consisting of [twelve]

hours each for [sixteen] cameras as well as

approximately [twenty-three] hours, [thirty] minutes

from another two cameras, spanning the approximate

hours of [twelve] noon to [twelve] midnight on August

26, 2012. Under our court rules, the prosecutor has a

duty to produce to the defense evidence in its

possession following the return of an indictment. If you

A-3822-22

25

find that the State has destroyed and failed to preserve

evidence in its possession following the return of the

indictment, then you may draw an inference

unfavorable to the State which in itself may create a

reasonable doubt as to . . . defendant's guilt. In deciding

whether to draw this inference, you may consider all the

evidence in the case, including any explanation given

as to the circumstances under which the evidence was

destroyed. In the end, however, the weight to be given

to the destruction of the evidence is for you and . . . you

alone to decide.

The court gave the jury a similar instruction during the State's case-in-chief.

At some point during trial, defense counsel received Furman's February

24, 2014 report that stated Furman "was present for a forensic examination" of

the hard drive, which had been located. The report stated that investigators

"were able to retrieve portions of the footage from Oak[crest] Estates" but that

those portions were the same two clips submitted as evidence, with the

remainder confirmed as written over and irretrievable. Defense counsel took no

immediate action in response to the report.

Later, defense counsel filed a post-trial motion to dismiss the indictment,

alleging that the forensic examination conducted by the Computer Crimes Unit

was insufficient and that the timing of the report was indicative of bad faith.

The trial court denied the motion, finding that "the report . . . confirmed what

A-3822-22

26

was already known" from the evidentiary hearing—that the two clips in evidence

were the only pieces of footage not overwritten by Johannessen.

In our unpublished opinion, we concluded that defendant "failed to

demonstrate a due process violation." Earley, slip op. at 18. We explained:

First, defendant has not demonstrated that the erased

portion of the video had exculpatory value that was

apparent before it was destroyed. Nor has defendant

met his burden to establish bad faith. Arizona v.

Youngblood, 488 U.S. 51, 58 (1988). Our courts have

held that the routine destruction of video or other data

does not establish bad faith. . . .

Moreover, the fact that a discovery request was

made prior to the routine destruction of evidence does

not compel a finding of bad faith. There is no evidence

of "official animus toward [defendant] or [] a conscious

effort to suppress exculpatory evidence." California v.

Trombetta, 467 U.S. 479, 488 (1984).

[Earley, slip op. at 17-18 (alterations in original)

(citations omitted and reformatted).]

We also "concluded that the State was not at liberty to destroy the video,"

particularly given "the State's awareness of the defense request and the potential

relevance of the video footage." Id. at 18-19 (citing R. 3:13-3). "However, we

discern[ed] no abuse of discretion in the court's permissive inference charge" as

an appropriate sanction and rejected defendant's contention that "a stronger

instruction" was warranted. Id. at 19-20.

A-3822-22

27

In denying defendant's IAC claims based on his trial counsel's failure to

demand production of the hard drive during the trial, the PCR judge found that

counsel had "limited time to file a [m]otion regarding the hard drive based upon

the information" in Furman's report, so the decision not to request the hard drive

was trial strategy and "reasonable under the circumstances."8 We agree.

Defendant's claims are "bare allegation[s]" unsupported by the factual record.

State v. Cummings, 321 N.J. Super. 154, 168 (App. Div. 1999). Although

"[c]ounsel has a duty to make reasonable investigations," Porter, 216 N.J. at 353

(quoting Chew, 179 N.J. at 217), nothing in Furman's report suggested that video

evidence other than the two clips already in evidence existed on the hard drive.

Under the circumstances, defense counsel's decision not to request the hard drive

for an independent examination was reasonable and does not constitute deficient

performance under Strickland.

Even assuming counsel's performance was deficient, defendant cannot

demonstrate he was prejudiced by the decision. See Bey, 161 N.J. at 284-85

8

Defendant correctly notes the PCR judge applied the wrong standard by

finding he could not "prove by clear and convincing evidence" that the hard

drive contained exculpatory evidence. He notes the same for his claims related

to Johnson. Based on our de novo review, we affirm despite these errors because

the judge came to the correct conclusion, and "[w]e are free to affirm the trial

court's decision on grounds different from those relied upon by the trial court."

State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).

A-3822-22

28

(noting the decision not to retain independent expert was not IAC where it would

not have affected outcome of motion for new trial). At no point during trial or

the post-conviction proceedings has defendant provided any evidence that the

raw footage corroborated his alibi as argued in his petition. Compounding this,

arguments over the hard drive's contents are futile as it has not been in the State's

possession since at least 2022. Simply stated, defendant cannot show the hard

drive contained exculpatory evidence at this juncture.

We also discern no error in the PCR judge's related rulings denying

defendant's motion to compel discovery and vacating the prior PCR judge's

orders. We review a PCR court's discovery order for abuse of discretion. State

v. Herrera, 211 N.J. 308, 328 (2012). As our court rules do not authorize

discovery in PCR proceedings, Marshall, 148 N.J. at 268, "[o]nly in the unusual

case will a PCR court invoke its inherent right to compel discovery," Herrera,

211 N.J. at 328 (quoting Marshall, 148 N.J. at 270). It is only "where a defendant

presents the PCR court with good cause to order the State to supply the

defendant with discovery that is relevant to the defendant's case and not

privileged[ that] the court has the discretionary authority to grant relief."

Marshall, 148 N.J. at 270. A showing of "good cause" requires more than "'a

generic demand for potentially exculpatory evidence,'" and the defendant "'must

A-3822-22

29

allege facts that, if proved, would entitle[] him [or her] to relief.'" State v.

Szemple, 247 N.J. 82, 107-08 (2021) (first quoting Commonwealth v. Williams,

86 A.3d 771, 786 (Pa. 2014); and then quoting State v. Turner, 976 So.2d 508,

511 (Ala. Crim. App. 2007)).

Here, the PCR judge posited that the issues "presented in conjunction with

the [discovery requests]," specifically the IAC claims related to the hard drive,

were "resolvable within the court record." The judge also found that the claim

was "essentially being used as a basis to relitigate the [m]otion to [d]ismiss,"

which we had "already . . . reviewed and affirmed." We agree. Defendant did

not have good cause to demand the hard drive because no record evidence

indicated it contained exculpatory evidence. For this reason, we also find that

the judge did not abuse her discretion by denying defendant's interrogatories

seeking information related to the disposal of the hard drive. See State v.

Enright, 416 N.J. Super. 391, 404 (App. Div. 2010) ("[A]llowing a defendant to

forage for evidence without a reasonable basis is not an ingredient of either due

process or fundamental fairness in the administration of . . . criminal laws."

(emphasis omitted) (quoting State v. Ford, 240 N.J. Super. 44, 49 (App. Div.

A-3822-22

30

1990), rejected in part on other grounds by, State v. Stein, 225 N.J. 582

(2016))).9

Turning to defendant's arguments regarding trial counsel's failure to

obtain the ACPO policies, defendant's PCR counsel obtained the policies

through a public records request. The policies required preservation of "video

tape recordings" and "electronically stored information on seized media" in

homicide cases for "[ten] years from the date of conviction." Because defendant

was convicted in 2014, the ACPO was required to preserve the surveillance

footage through the pendency of his PCR proceedings.

In ruling on defendant's related IAC claim, the PCR judge determined that

defendant failed to show a prima facie case under both Strickland prongs. In

support, the PCR judge relied on the fact that the trial judge had found no bad

faith despite the policies being brought to his attention at the pre-trial

evidentiary hearing. The PCR judge found "the directives [would have] added

nothing to [the trial judge's] consideration and would not have had a material

[effect] on the result of the case." Critically, the PCR judge concluded that

9

Defendant claims in a Point heading that the judge erred in denying his motion

to reconsider her order on his discovery requests but fails to argue further or cite

any law. Accordingly, we consider the argument abandoned. See Pressler &

Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("[A]n issue not

briefed [on appeal] is deemed waived.").

A-3822-22

31

because the directives "did not restrict [the trial judge] from . . . provid[ing] two

sets of strongly worded curative instructions" and defendant was convicted

regardless, the "evidence would not have had a material bearing" on the verdict.

We again agree. The State's production of the ACPO policies would not

have changed the fact that Dougherty was ignorant of them, or the trial judge's

finding that she did not act in bad faith because she "[did not] understand the

discovery responsibilities." At trial, the jury heard the permissive adverse

inference instructions as well as Dougherty's admission that she deleted most of

the surveillance footage two days after defense counsel requested it. Because

the jury still convicted defendant and the State's explanation of Dougherty's

ignorance would not have been vitiated by the production of the policies, trial

counsel obtaining the policies would not have changed the jury's verdict.

Defendant's Brady claims likewise fail because of this lack of materiality.

"In order to establish a Brady violation, [a] defendant must show that: (1) the

prosecution suppressed evidence; (2) the evidence is favorable to the defense;

and (3) the evidence is material." State v. Russo, 333 N.J. Super. 119, 134 (App.

Div. 2000). "The materiality standard is satisfied if [the] defendant

demonstrates that there is a reasonable probability that had the evidence been

disclosed to the defense, the result of the proceeding would have been different ."

A-3822-22

32

Ibid. Because it is unlikely the results of the pre-trial evidentiary hearing or the

trial would have been different, the State's failure to produce the policies was

not a Brady violation.

Defendant's claim that the ACPO policies are newly discovered evidence

of the State's bad faith is also unavailing. First, as defendant "could have raised

the issue on direct appeal but failed to do so," his claim is procedurally barred

under Rule 3:22-4. State v. Peoples, 446 N.J. Super. 245, 254-55 (App. Div.

2016). Notwithstanding the procedural bar, we address the merits.

In order to justify a new trial, new evidence must be: "(1) material to the

issue and not merely cumulative or impeaching or contradictory; (2) discovered

since the trial and not discoverable by reasonable diligence beforehand; and (3)

of the sort that would probably change the jury's verdict if a new trial we re

granted." Nash, 212 N.J. at 549 (quoting State v. Carter, 85 N.J. 300, 314

(1981)). All three prongs must be satisfied before a new trial is warranted, and

the defendant bears the burden of establishing each. State v. Ways, 180 N.J.

171, 187 (2004).

"Material evidence" under the first prong is "'any evidence that would

have some bearing on the claims being advanced,' and includes evidence that

supports a general denial of guilt." Nash, 212 N.J. at 549 (quoting Ways, 180

A-3822-22

33

N.J. at 188). In other words, the new evidence must "have the probable effect

of raising a reasonable doubt as to the defendant's guilt" to "not be considered

merely cumulative, impeaching, or contradictory." Ibid. (quoting Ways, 180

N.J. at 189). In this sense, the first and third prongs are "inextricably

intertwined," and "'evidence [that] would shake the very foundation of the

State's case and almost certainly alter the earlier jury verdict' could not be

categorized as 'merely cumulative.'" Ibid. (alteration in original) (quoting Ways,

180 N.J. at 189). Whether the newly discovered evidence has the potential to

alter a verdict is a contextual determination, as "[t]he evidence [proffered] must

be 'evaluated in light of the . . . corroborative proofs in the record.'" State v.

Fortin, 464 N.J. Super. 193, 221 (App. Div. 2020) (omission in original)

(quoting Herrera, 211 N.J. at 343).

In denying the motion for a new trial, the PCR judge explained that

[t]he existence of these policies was discussed at length

by [the trial judge] at the underlying [p]re-[t]rial

[m]otion to [d]ismiss . . . hearing on February 24, 2014.

In said hearing, . . . Barnett testified that a policy

existed in writing at the ACPO relating to the

destruction of evidence in a pending prosecution. The

existence of these policies was therefore known to

[defendant], and the policies could have been requested

by [him] at any time . . . [but] were not until early 2023.

The new request does not make the policies newly

discovered evidence.

A-3822-22

34

[(Citation omitted).]

We agree and adopt the judge's cogent reasoning. Besides the fact that

the ACPO policies could have been discovered with reasonable diligence, they

are not the sort of evidence that would have likely changed the verdict if a new

trial were granted. Nash, 212 N.J. at 549. Consequently, we are satisfied

defendant has not met his burden.

Relying on State v. M.B., 471 N.J. Super. 376 (App. Div. 2022), defendant

asserts the State violated the 2013 preservation order and its own policies by

destroying the hard drive, demonstrating its "further misconduct" and

constituting "manifest harm." In M.B., we held that "'[i]n the absence of bad

faith, relief should be granted to a defendant only where there is a "showing of

manifest prejudice or harm" arising from the failure to preserve evidence.'" Id.

at 383 (quoting State v. Dreher, 302 N.J. Super. 408, 489 (App. Div. 1997),

abrogated on other grounds by, State v. Brown, 170 N.J. 138 (2001)).

Here, the preservation order only required the preservation of evidence

which was "exculpatory or . . . [could] lead to exculpatory evidence." As

previously stated, all record evidence establishes that no video evidence

remained in the hard drive other than the two video clips already in evidence.

Further, the ACPO policies merely required preservation of video evidence, not

A-3822-22

35

the office hardware once used to store the video itself. Defendant has thus failed

to show the State's bad faith or that he was manifestly harmed or prejudiced by

the loss of the hard drive.

Lastly, defendant argues that the judge abused her discretion in denying

his motion for recusal because she "was an ACPO supervisor . . . during ACPO's

investigation and prosecution of [him]" and should not have ruled on his claims

of ACPO's bad faith. He alleges that her "knowledge of ACPO's policies" and

"ACPO's conflicting representations with respect to those policies" rendered her

partial or caused "the appearance of impropriety."

A motion for disqualification or recusal is "entrusted to the sound

discretion of the judge," whose decision is "subject to review for abuse of

discretion." State v. McCabe, 201 N.J. 34, 45 (2010). Rule 3.17(B) of the Code

of Judicial Conduct states that "[j]udges shall disqualify themselves in

proceedings in which their impartiality or the appearance of their impartiality

might reasonably be questioned." Among other examples, the Code includes

"[p]ersonal bias, prejudice or knowledge" and "prior professional relationships."

Ibid. For the former, the Code counsels against judges presiding over cases

where they "have personal knowledge of disputed evidentiary facts involved in

the proceeding." Id. r. 3.17(B)(1). For the latter, it specifies that a judge should

A-3822-22

36

not preside over a case "in which a party is a [local] governmental entity that

previously employed the judge" for five years. Id. r. 3.17(B)(4)(d). Still,

"[j]udges may not 'err on the side of caution and recuse themselves unless there

is a true basis that requires disqualification.'" Goldfarb v. Solimine, 460 N.J.

Super. 22, 31 (App. Div. 2019) (quoting Johnson v. Johnson, 204 N.J. 529, 551

(2010) (Rabner, C.J., concurring)).

Applying these principles, the PCR judge denied the recusal motion. In

support, she noted that she "resigned from the [ACPO] at the end of June 2017"

and was thus "removed from [her] employment . . . for six years at the time of

hearing th[e] motion." Regarding her personal knowledge, she stated:

In 2012, 2013, and 2014, the relevant time frame

of the underlying criminal case, I was Chief of Sex

Crimes, Crimes Against Children, and the Financial

Crimes Unit. I was not ever the Chief of the Major

Crimes Unit. I had no supervisory authority and took

no actions on anything related to this matter. I had no

decision-making authority. I was not a witness to this

matter, nor did I sit in on meetings regarding this

matter. The only knowledge I have of the facts and

evidence in this case is through the PCR submissions

and arguments.

I have never authored any policies for the

[ACPO], including such regarding the preservation and

destruction of evidence.

A-3822-22

37

We discern no abuse of discretion in the judge's ruling. The judge was far

removed from her tenure at the ACPO and had no prior personal knowledge of

the facts involved in defendant's prosecution. Thus, there was no basis to

question the judge's impartiality or the appearance of her impartiality. See

Harris, 181 N.J. at 510-11 (holding that a PCR judge was not required to

disqualify himself even though he was the acting county prosecutor when an

unrelated indictment was returned against the defendant twenty-five years

earlier).

III.

Next, defendant claims that his trial counsel was ineffective by failing to

retain and use an expert at the pre-trial Wade hearing and at trial to dispute the

reliability of eyewitness identifications by those "familiar" with the identified

person, and instead telling the jury about the "common experience" of mistaking

a stranger for an acquaintance. Defendant asserts this failure also caused the

"premature termination" of the Wade hearing, which in turn prevented effective

cross-examination of the eyewitnesses, whose "prior contacts with [him] were

minimal at best."

In our unpublished opinion, we considered defendant's challenge to "the

identification procedure employed by the State." Earley, slip op. at 23.

A-3822-22

38

Defendant had argued the procedure was "impermissibly suggestive and that the

resulting witness identifications should have been excluded." Ibid. We

recounted that the trial court granted a Wade hearing on February 25, 2014,

"based on the fact [that] the [three] eyewitnesses were shown only a single

photograph of defendant." Id. at 28; see Wade, 388 U.S. at 229-30 (discussing

inherent risk of suggestiveness in identification procedures). Dougherty was the

sole witness at the hearing. She testified that she took statements from Ceasar

and Jones separate from one another on the day of the murder but confirmed that

Ceasar reported exclaiming "oh my God, it's Buddah," in the presence of Jones

while the shooting was occurring.

According to Dougherty, both women named defendant as the shooter by

his first name and as Buddah during their interviews. Ceasar told Dougherty

that she and defendant "used to talk," which Dougherty understood to mean that

they had dated. Jones informed Dougherty that "she had known [defendant] for

about eight years" and knew personal information about him such as where the

mother of his daughter lived. Because the women were familiar with defendant,

Dougherty showed them each a single photograph of him. Ceasar "[a]lmost

immediately" identified the person in the photo as defendant, saying something

like "that's exactly him." Jones also identified defendant after "[v]ery briefly"

A-3822-22

39

looking at the photograph. Ceasar and Jones each initialed and dated the

respective photographs.

Kevin Brown was interviewed the following day. Dougherty arrived

midway through his statement. He had already identified defendant as the

shooter and stated he had known him "[a]pproximately [ten] years." Dougherty

showed him a single photograph of defendant, and he "confident[ly]" identified

defendant before initialing and dating the photograph. The statements of all

three eyewitnesses were recorded on video, and the recordings were played for

the court. Dougherty testified that there was no "question in [her] mind as to

who[m] they thought the shooter was before [she] showed them th[e]

photograph[s]."

After outlining the governing legal principles, including the expanded

number of factors announced in State v. Henderson, 208 N.J. 208, 248-72

(2011), informing the court's determination of the reliability of identification

evidence and specifically identifying eight system and ten estimator variables,

the judge terminated the Wade hearing and found "defendant's allegation of

improper suggestiveness . . . groundless." See Henderson, 208 N.J. at 248-61

(defining system variables as characteristics of the identification procedure over

which law enforcement has control, and estimator variables as factors beyond

A-3822-22

40

the control of law enforcement which relate to the incident, the witness, or the

perpetrator).10

At trial, all three eyewitnesses testified about their out-of-court

identifications of defendant. They also identified defendant in court. Dougherty

testified about the out-of-court identifications and the procedures she used for

Ceasar and Jones. During cross-examination and summations, defense counsel

attacked the eyewitnesses' familiarity with defendant, noted they only had a

"split[ ]second" to observe the shooter, and highlighted discrepancies between

their police statements and testimony and between their descriptions of

defendant and his actual appearance. The trial judge's final instruction to the

jury tracked the model jury charge effective at the time, including the Henderson

factors applicable to the case, such as witness stress, duration, weapon focus,

distance, lighting, disguise or changed appearance, prior description of the

10

Henderson prescribed a four-step procedure for determining admissibility of

identification evidence. Id. at 288-89. First, to obtain a hearing, a defendant

has the burden of producing some evidence of suggestiveness, generally tied to

a system rather than estimator variable, that could lead to a mistaken

identification. Ibid. Second, the State must offer proof the identification is

reliable, "accounting for system and estimator variables." Id. at 289. Third, the

burden remains on the defendant "to prove a very substantial likelihood of

irreparable misidentification." Ibid. And, fourth, if the defendant sustains this

burden, the identification evidence should be suppressed; if the defendant does

not sustain the burden, the evidence should be admitted with "appropriate,

tailored jury instructions." Ibid.

A-3822-22

41

perpetrator, confidence and accuracy, and time elapsed. See Model Jury

Charges (Criminal), "Identification: In-Court and Out-of-Court Identifications"

(effective Sept. 4, 2012).

In our unpublished opinion, we rejected "defendant's claim that the out-

of-court show-up of defendant's photo resulted in a very substantial likelihood

of irreparable misidentification." Earley, slip op. 28. We reasoned that "[t]he

majority of the estimator variables have little or no application when the witness

knows the suspect from previous dealings and can identify the person based

upon those prior contacts." Id. at 29. We noted that "the three eyewitnesses

were well familiar with defendant." Ibid. "We likewise discern[ed] no error in

the court's jury instruction on identification . . . ." Ibid. We also held that

"[c]ontrary to defendant's argument, the trial court reasonably exercised its

discretion to terminate the [Wade] hearing after it heard Dougherty's testimony

and viewed the recorded identifications," because "'[t]he court can end the

hearing at any time if it finds from the testimony that defendant's threshold

allegation of suggestiveness is groundless.'" Ibid. (quoting Henderson, 208 N.J.

at 289).

To support his PCR petition, defendant submitted Penrod's expert report,

which concluded that many factors "have a cumulative effect on [eyewitness]

A-3822-22

42

identification performance." Penrod also opined that "factors known to

influence stranger identifications can similarly influence non-stranger

identifications" and that "jurors are strongly influenced by witness assertions of

familiarity."

In rejecting defendant's IAC claim based on trial counsel's failure to retain

an identification expert, the PCR judge found that it was "not likely that an

expert on [identification] would have been admitted at . . . trial" because " [t]he

Henderson Court stated that 'with enhanced jury instructions, there will be less

need for expert testimony,'" 208 N.J. at 298, and the jury charges on eyewitness

identification "were in fact enhanced in 2012." Regardless, the judge found

defendant failed to meet both Strickland prongs, as (1) his trial counsel made a

strategic decision not to call an expert to "minimize the weight the jury gave to

the identifications," and (2) defendant only argued expert testimony "would have

promoted greater juror understanding of the pitfalls of relying upon familiarity

as a benchmark for an identification's accuracy."

We agree with the judge's ruling and reasoning. Trial counsel's decision

to not present an identification expert "followed a sound strategic approach to

the case." State v. Pierre, 223 N.J. 560, 579 (2015) (acknowledging that

deciding which witnesses to call at trial is "one of the most difficult strategic

A-3822-22

43

decisions that any trial attorney must confront" (quoting State v. Arthur, 184

N.J. 307, 320 (2005))); Dunn v. Reeves, 594 U.S. 731, 739 (2021) ("Defense

lawyers have 'limited' time and resources, and . . . certain tactics carry the risk

of 'harm[ing] the defense' by undermining credibility with the jury or distracting

from more important issues." (alteration in original) (quoting Harrington v.

Richter, 562 U.S. 86, 106-08 (2011))). Consequently, "strategic decisions—

including whether to hire an expert—are entitled to a 'strong presumption' of

reasonableness," ibid. (quoting Harrington, 562 U.S. at 104), and "are virtually

unassailable on [IAC] grounds," State v. Cooper, 410 N.J. Super. 43, 57 (App.

Div. 2009).

Defendant has not overcome the presumption that his trial counsel made

a reasonable and informed decision not to call an expert. Even if the expert's

testimony was admitted, calling an identification expert would likely have been

met with an opposing expert by the State, highlighting and bolstering the

accuracy of the eyewitnesses' identifications. Moreover, expert testimony could

have distracted from counsel's common-sense arguments centering on the

eyewitnesses' inconsistences and inability to view the shooter before he fled.

Because there is no question that defense counsel vigorously engaged in the

adversarial process, pro-actively filing the pre-trial motion to suppress the

A-3822-22

44

identifications, forcefully cross-examining the eyewitnesses, and repeating his

credibility arguments in closing, we are satisfied defendant failed to make a

prima facie showing of deficient performance to satisfy the first Strickland

prong.

Likewise, defendant cannot show a reasonable likelihood that calling an

expert at trial would have resulted in a different verdict to satisfy the second

Strickland prong. Penrod's opinion did nothing to directly discount the

identifications, and the jury clearly credited the identifications despite defense

counsel's impeachment of the eyewitnesses and the model jury charge's

discussion of the Henderson factors. Consequently, we conclude defendant

failed to make a prima facie showing of both Strickland prongs.

IV.

Next, defendant argues his trial counsel was ineffective for "promising to

prove [defendant's] innocence" in his opening statement, thus "inviting the

State's damaging remarks on his failure to provide exonerating evidence" during

its closing argument. Defendant notes we found the "ill-advised opening

permitted" the State a fair response in our unpublished opinion and that the

"record is silent as to any possible strategic reason for counsel making such a

promise." See Earley, slip op. at 32-34.

A-3822-22

45

In our unpublished opinion, we recounted:

[I]n his opening statement, defense counsel stated to the

jury:

I'll tell you this: The defense will prove

that [defendant] is innocent. We don't have

to, we shouldn't have to, but here we are

today and he's on trial for a murder he

didn't commit. We don't have to prove it,

but we will. And, you know, I don't say

that lightly. That's a big promise I'm

making to you, and I got to hope I fulfill it

for my client's sake, for a man who's on

trial for a murder he did not commit.

In his summation, the prosecutor responded:

Now, [defense counsel] is absolutely right.

He does not have to prove a single thing to

you, but he said he would. He said in the

beginning he was going to prove his client

was innocent, his client was not in Atlantic

City on that day. So what does he do?

Well, he takes out a lot of cell phone

records, and [defense counsel] is very

technologically savvy. He knows all the

terms for the cell phone records, he knows

all the terms for the text messages, and he

says, [] look at these texts, look at these cell

phone records, but he doesn't prove a thing.

He doesn't have to, but he didn't.

Absolutely no evidence was put forward in

this case to prove that [defendant] was

anywhere but Atlantic City murdering

James Jordan.

[Id. at 32-33 (first alteration added).]

A-3822-22

46

We rejected defendant's claim that the prosecutor's remarks were

improper, explaining that the "comments did not impermissibly shift the burden

of proof to defendant to prove his alibi," but rather "represented a direct response

to the promise defense counsel made in his opening statement that defendant

would prove his innocence." Id. at 33. Further, because the trial court instructed

the jury in its final charge "that defendant had no obligation to prove his alibi,"

and because "'[w]e presume that the jury faithfully follow[ed] [the court's]

instruction[s],'" any "prejudice" engendered by the comment was

"neutralize[d.]" Id. at 33-34 (third alteration in original) (quoting State v.

Miller, 205 N.J. 109, 126 (2011)).

In rejecting defendant's IAC claim premised on trial counsel's opening

promise, the PCR judge found that the promise was a "strategic choice in an

attempt to establish [defendant's] alibi," supported by the "cell phone records

and other evidence" the defense presented, and that the trial court's jury

instruction "specifically emphasize[d] that the burden was not upon [defendant]

to demonstrate [an alibi], thus rebutting the need for [counsel] to satisfy the

opening promise."

We agree and affirm the PCR judge's ruling substantially for the same

reasons. Trial counsel's performance was not constitutionally deficient "merely

A-3822-22

47

because . . . defendant is dissatisfied with his . . . exercise of judgment during

the trial." Castagna, 187 N.J. at 314. The proposition that "[d]ecisions as to

trial strategy or tactics are virtually unassailable on [IAC] grounds," Cooper,

410 N.J. Super. at 57, extends to an attorney's opening statement. Indeed, even

high-risk strategies are not plainly IAC if they are reasonably calculated to lead

to a favorable trial outcome. See Castagna, 187 N.J. at 303, 316 (finding no

prima facie case of IAC where defense counsel admitted defendant's guilt to

lesser offenses in hopes of building defendant's credibility with jury and getting

acquittal on murder charge).

Trial counsel's opening statement was one part of a trial-long effort to

establish an alibi by showing that defendant was using his phone in Mays

Landing during the murder. The decision was a reasonable strategic effort to

rebut the three eyewitness identifications claiming defendant committed the

murder in Atlantic City and to establish reasonable doubt in the minds of the

jurors. Critically, the defense's opening statement, the prosecutor's summation,

and the trial court's jury instruction all made it clear that it was not defendant's

burden to prove his alibi. Defendant therefore cannot show that but for the

opening promise, there was a reasonable probability the jury would have

acquitted him.

A-3822-22

48

V.

Defendant's next arguments pertain to his alibi defense. He contends that

trial counsel was ineffective for failing to "investigate and enable presentation

of Facebook posts and other evidence" placing him in Mays Landing during the

murder. Specifically, he argues counsel should have "subpoenaed a [Facebook]

representative" to authenticate account records, "[sought] more complete

records from Facebook" showing he was the person that had "accepted . . . friend

requests," and "determine[d] whether another witness could have verified that

Facebook messages had come from [defendant]." He further asserts that counsel

was deficient for failing to call Oakcrest Estates property manager Carol

Johnson, who, while "not precise on the time," "told police she had seen

[defendant] walking around" Oakcrest Estates "earlier in the day." He claims

her testimony would have corroborated that he was the unidentified man seen

on surveillance footage at Oakcrest Estates "[nine] minutes post[ ]shooting."

The PCR judge summarized the relevant factual background as follows:

In an attempt to establish an alibi during [t]rial, [t]rial

[c]ounsel presented geospatial location data for

[defendant's] phone from before, during, and after the

murder occurred. The data showed [defendant's] phone

in Mays Landing and not Atlantic City at the time of

the murder. Thus, [defendant] claimed he could not

have committed the murder because he was in Mays

Landing at the time of the incident with his phone. The

A-3822-22

49

[p]rosecutor refuted this contention by arguing to the

jury that [defendant] left his phone in Mays Landing

while he committed the murder in Atlantic City. The

[p]rosecutor argued to the jury that all of [defendant's]

phone pings to local cell phone towers were incoming

to [defendant's] phone . . . [and that defendant] did not

answer or otherwise respond to the incoming calls and

communications . . . . In other words, the geospatial

data and cell phone record history did not show

[defendant] was using his phone at the time of the

murder . . . .

....

During the discovery phase . . . , [t]rial [c]ounsel

submitted a list of Facebook postings that had been

screenshot[ted] from [defendant's] Facebook account

by the [d]efense along with the cell phone records and

geospatial data. Trial [c]ounsel attempted to cross-

examine . . . Dougherty[] to seek to have her

acknowledge the Facebook records. The [p]rosecution

objected, claiming hearsay and lack of foundation, as

[t]rial [c]ounsel had not produced a witness to

authenticate the records and to say what they meant.

The objections deterred the offer, the [c]ourt expressed

its view as to hearsay, and the Facebook record[s] never

made it to the jury.

[(Citation omitted).]

The PCR judge then rejected the IAC claim, finding that defendant failed

to establish the second Strickland prong. In support, the judge explained that

although defendant's "cell phone was in use for texts, calls, and Facebook nearly

all morning from 11:33[ a.m.] to 12:35[ p.m.]," the phone and Facebook records

A-3822-22

50

did not "demonstrate whether [defendant] was the individual using his phone."

Because the Facebook posts established nothing more than the admitted phone

records, which were "more pertinent to demonstrating activity by [defendant]

due to the call that was answered by [defendant's] phone less than a minute

before the murder," the judge determined the Facebook posts were "merely

cumulative evidence."

We agree with the ruling and adopt the judge's reasoning. Because

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, 216 N.J. at 353 (quoting

Cummings, 321 N.J. Super. at 170). That is because "PCR 'is not a device for

investigating possible claims, but a means for vindicating actual claims.'"

Marshall, 148 N.J. at 270 (quoting People v. Gonzalez, 800 P.2d 1159, 1206

(Cal. 1990)).

In his certification, defendant averred that he "made th[e Facebook]

postings [while] in possession of his own phone in Mays Landing." However,

defendant failed to corroborate his claim that he was responsible for the activity

on his Facebook account near the murder, specifically, the friend requests that

A-3822-22

51

were accepted at 12:04 p.m. and 12:07 p.m. See generally In re Robertelli, 248

N.J. 293, 301-02 (2021) (establishing mechanics of accepting Facebook friend

requests). Indeed, any person who had access to defendant's Facebook account,

especially if defendant were permanently logged into his account on a device,

could have made the posts without inputting login credentials. Thus, defendant's

claim amounts to nothing more than a "bare allegation." Cummings, 321 N.J.

Super. at 168. The absence of an affidavit or certification establishing that

further inquiry into Facebook's databases would have yielded exculpatory

evidence is fatal to defendant's failure to investigate claim. See Porter, 216 N.J.

at 353.

Turning to defendant's IAC claim regarding Johnson, the PCR judge found

the decision not to call her was not deficient performance because Johnson never

established when defendant was at Oakcrest Estates and calling her would have

exposed her identification to cross-examination. The judge concluded defendant

also failed to show prejudice because Johnson's identification was "not outcome

determinative" and the "verdict relied upon the identifications at the scene by

eyewitnesses, not the failure of [defendant] to establish an alibi."

We agree that defendant failed to show prejudice because Johnson's

identification was not probative of defendant's alibi. See State v. L.A., 433 N.J.

A-3822-22

52

Super. 1, 15 (App. Div. 2013) ("In addressing an [IAC] claim based on a

counsel's failure to call an absent witness, a PCR court must unavoidably

consider whether the absent witness's testimony would address a significant fact

in the case . . . ."). To establish an alibi defense, defendant had to show that he

was at Oakcrest Estates at or very near the time of the murder, 12:10 p.m. At

trial, the State did not dispute that defendant was at Oakcrest Estates about thirty

minutes after the murder. Johnson's statement neither identifies any precise time

that defendant was at Oakcrest Estates nor corroborates defendant's claim that

he was the unidentified man in the white shirt seen around 12:25 p.m. on the

Oakcrest Estates surveillance footage. In fact, the statement is cumulative of

evidence already in the case.

Further, unlike the decisions he cites that found IAC for failure to call a

witness, defendant provided no certification or testimony from Johnson to

supplement her prior statement and support his case. See State v. Petrozelli, 351

N.J. Super. 14, 20-21, 24-25 (App. Div. 2002) (remanding for evidentiary

hearing where affidavits of uncalled witnesses established defense); L.A., 433

N.J. Super. at 9, 19 (finding IAC where witness submitted certification to PCR

court asserting she was available for trial testimony and that assault could not

have happened due to her presence); Wilson v. Cowan, 578 F.2d 166, 167-68

A-3822-22

53

(6th Cir. 1978) (finding IAC for failure to call witness at trial who testified to

defendant's alibi at habeas proceeding); Lawrence v. Armontrout, 900 F.2d 127,

129-30 (8th Cir. 1990) (finding counsel deficient for failing to make any

personal effort to contact alibi witnesses after counsel admitted as such at

evidentiary hearing); Alcala v. Woodford, 334 F.3d 862, 870-71 (9th Cir. 2003)

(finding counsel deficient for failing to present alibi witness who submitted

exculpatory statement for evidentiary hearing). Accordingly, we conclude

defendant's IAC claim for failure to call Johnson also fails.

VI.

Next, defendant contends that trial counsel erred by "failing to object to

the prosecutor's testimony in summation" about a "friend's son" who is

ambidextrous, "permitting the prosecutor to essentially testify" to something

outside the record. He also alleges counsel failed "to present evidence of [his]

left-handedness" other than a "video of him signing with his left hand."

At trial, Tobias confirmed that the unidentified man from the surveillance

footage seen at Oakcrest Estates near the time of the murder was "[d]rinking

something" with his left hand. During closing argument, defense counsel argued

defendant was this man since his taped statement to police showed him signing

A-3822-22

54

a Miranda11 card with his left hand. Counsel also claimed defendant could not

be the murderer since the Carver Hall surveillance footage showed the shooter

holding the gun in his right hand.

The prosecutor responded:

Now, [defense counsel] wants to make a big deal.

Well, [defendant] signed with his left hand and he's

shooting with his right hand in that video . . . . How

could that be? For any number of reasons. I got a

friend, for instance, and his son writes with his left hand

and my friend was really, really excited about this,

because that's going to make him a good athlete . . . .

[N]o matter how hard he encourages his son to bat left

and throw left and to be left-handed his son bats right

and throws right, signs left. Maybe . . . defendant had

the gun in his right pocket and so he took out the gun

with his right hand. Maybe the most important thing

for . . . defendant was not to be seen. Maybe the most

important thing was keeping that tee shirt on that face

and so he use[d] his left hand to do that. Does it matter

which hand he happened to be holding the gun in? Does

that prove whether the shooter was left-handed or right-

handed? Doesn't prove anything, right?

Shortly after, the trial court instructed the jury in its final charge:

Regardless of what counsel said or what I may

have said in recalling the evidence in this case, it is your

recollection of the evidence that should guide you as

judges of the facts. Arguments, statements, remarks,

openings and summations of counsel are not evidence

and must not be treated as evidence. Although the

attorneys may point out what they think is important in

11

Miranda v. Arizona, 384 U.S. 436 (1966).

A-3822-22

55

this case, you must rely solely on your understanding

and recollection of the evidence that was admitted

during the trial.

The PCR judge concluded that defendant failed to show either Strickland

prong. The judge noted the prosecutor's comment was in response to defense

counsel's assertion that defendant "could not be the shooter because . . . the

shooter fir[ed] with his [right] hand and [defendant] sign[ed] the Miranda card

with his [left] hand," so it was "clearly within the scope of the evidence

presented." Additionally, the judge found defendant did not show he was

prejudiced by the "innocuous comment" since the trial judge "neutralized the

potential . . . [of] the jury treat[ing] the comment as evidence" with his jury

instruction.

We agree that, at a minimum, defendant failed to establish the prejudice

prong of the Strickland test. Because "prosecutors in criminal cases are expected

to make vigorous and forceful closing arguments to juries," they are "afforded

considerable leeway in closing arguments." State v. McNeil-Thomas, 238 N.J.

256, 275 (2019) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). However, they

"should not make inaccurate legal or factual assertions" and "must confine their

comments to evidence revealed during the trial and reasonable inferences to be

drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). Still, "[a]

A-3822-22

56

prosecutor may respond to defense claims, even if the response tends to

undermine the defense case." State v. Nelson, 173 N.J. 417, 473 (2002).

Here, the prosecutor's comment about ambidexterity was in direct

response to defense counsel's comment that defendant could not have been the

murderer because the evidence showed that defendant was left-handed while the

murderer was right-handed. Although the illustrative fact of the prosecutor's

friend's son being ambidextrous was objectionable as beyond the scope of the

evidence revealed during the trial, it was fleeting and did not affect the outcome

of the trial given the trial court's jury instruction, which we "presume . . . the

jury faithfully followed." Miller, 205 N.J. at 126. Thus, we are unconvinced

that trial counsel's failure to object to the prosecutor's comment prejudiced

defendant.

We also find no merit to defendant's claim that trial counsel was

ineffective for failing to present sufficient evidence of his left-handedness. In

addition to counsel pointing out that defendant signed the Miranda card with his

left hand, counsel elicited Tobias's identification of defendant as the unknown

man at Oakcrest Estates around 12:25 p.m. drinking by using his left hand.

Defendant's claim is therefore belied by the record.

A-3822-22

57

VII.

Next, defendant alleges he received IAC because his trial counsel

previously represented the murder victim and his brother, Anthony A. Jordan.

Citing RPC 1.6(a), RPC 1.7(a)(2), and RPC 1.9(c), defendant asserts trial

counsel's representation of him was materially limited by counsel's

responsibilities to the brothers, as counsel did not investigate them or "witnesses

close to them" and "might have been inclined to cross-examine [Jones, the

victim's aunt,] less vigorously."

The issue of defense counsel's alleged representations of the victim and

his brother was not raised at trial. Defendant raised the issue for the first time

in his PCR petition. In his petition, defendant claimed trial counsel "never

disclosed" the prior representations or conflict of interest but failed to provide

any documentary evidence to support his claims.12 Nevertheless, the PCR judge

12

For the first time on appeal, defendant now submits records from the Person

Case Search and Manage application (PCSAM) available on the New Jersey

Courts website, seemingly asking us to take judicial notice of the prior

representations. We generally restrict our review to evidence presented to the

trial court. See R. 2:5-4(a) (stating "[t]he record on appeal shall consist of all

papers on file in the [trial] court," inferring that it is improper to present

evidence on appeal that was not before the trial court). Nonetheless, we have

inherent authority to supplement a trial court record. Liberty Surplus Ins. Corp.

v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) (citing R. 2:9-1(a)). In

deciding whether to exercise this discretion, we consider whether the proponent

A-3822-22

58

presumed trial counsel represented the victim and his brother, and addressed the

claim on the merits.

In rejecting defendant's arguments, the PCR judge found defendant failed

to show the first Strickland prong because (1) counsel's only responsibility to

the victim at the time of defendant's trial was to adhere to RPC 1.9 and "[n]one

of the responsibilities of [RPC] 1.9 [were] implicated here"; (2) the victim's

death terminated "any former attorney-client relationship that existed"; and (3)

there was no "actual conflict of interest present." As to the latter point, the judge

added that counsel's representation of defendant was not materially limited by

nor materially adverse to his past representation of the victim, "as this was not

a case where [the victim] testified as a witness, nor . . . a civil case where [the

victim] and [defendant were] adversaries."

of the information knew of the evidence at the time of the hearing and if it is

likely to affect the case outcome. Id. at 452-53. Applying these factors, we

decline to supplement the record with the PCSAM records. Defendant's

allegations in his 2020 amended petition establish that he and his PCR counsel

were aware of the alleged representations by the 2023 PCR hearing, and thus

should have procured the records by that time. See id. at 453 (finding that the

proponent of an expert report failed the first factor where it "could have sought"

the report prior to filing a motion). Further, the records would not have affected

the PCR outcome because they do not sufficiently establish that defense counsel

previously represented the brothers.

A-3822-22

59

Generally, for counsel to be "effective" under the New Jersey

Constitution, they must provide clients "undivided loyalty, '"unimpaired" by

conflicting interests.'" State v. Cottle, 194 N.J. 449, 466-67 (2008) (quoting

State v. Norman, 151 N.J. 5, 23 (1997)). Nevertheless, "a great likelihood of

prejudice must be shown . . . to establish [IAC]," id. at 467-68 (quoting Norman,

151 N.J. at 25), and the conflict "must be based on an actual conflict or potential

conflict of interest" rather than just create an appearance of impropriety, State

v. Hudson, 443 N.J. Super. 276, 289 (App. Div. 2015). Still, a violation of

conflict rules does not automatically equate to IAC. See Norman, 151 N.J. at

28-30 & n.3 (finding that attorney who terminated representation of a defendant

and then joined a partnership with an attorney who was representing a

codefendant had violated the conflict rules but did not, by that action alone,

render IAC).

"To avoid the prejudice inquiry under prong two of Strickland," a

defendant must show that there is an "actual" conflict and "'the conflict

adversely affected counsel's performance.'" State v. Kearney, 479 N.J. Super.

539, 556-57 (App. Div. 2024) (quoting Mickens v. Taylor, 535 U.S. 162, 170-

71 (2002)). New Jersey's Constitution "provides broader protection against

conflicts than does the [f]ederal [c]onstitution." Id. at 557 (quoting State v.

A-3822-22

60

Drisco, 355 N.J. Super. 283, 292 (App Div. 2002)). Courts first determine

"whether the alleged conflict is a 'per se conflict,'" and if so, "'prejudice is

presumed in the absence of a valid waiver.'" Ibid. (quoting Cottle, 194 N.J. at

467). Even so, our Supreme Court has limited this per se rule to "cases in which

'a private attorney, or any lawyer associated with that attorney, is involved in

simultaneous dual representations of codefendants.'" Cottle, 194 N.J. at 467

(quoting Norman, 151 N.J. at 24-25); see Kearney, 479 N.J. Super. at 558

(collecting cases).

Turning to the Rules of Professional Conduct upon which defendant relies

to support his arguments, RPC 1.6(a) provides that "[a] lawyer shall not reveal

information relating to representation of a client unless the client consents after

consultation, except" for reasons that are not pertinent here. As attorney -client

privilege survives a client's death, see Swidler & Berlin v. United States, 524

U.S. 399, 404-07 (1998), so too does RPC 1.6's duty of confidentiality, see State

in the Int. of S.G., 175 N.J. 132, 140-41 (2003).

Related to the duty of confidentiality is the duty of loyalty. In pertinent

part, RPC 1.9(a) provides that "[a] lawyer who has represented a client in a

matter shall not thereafter represent another client in the same or a substantially

related matter in which that client's interests are materially adverse to the

A-3822-22

61

interests of the former client unless the former client gives informed consent

confirmed in writing."

Matters are substantially related if:

(1) the lawyer for whom disqualification is sought

received confidential information from the former

client that can be used against that client in the

subsequent representation of parties adverse to the

former client, or (2) facts relevant to the prior

representation are both relevant and material to the

subsequent representation.

[O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206

N.J. 109, 125 (2011) (quoting City of Atl. City v.

Trupos, 201 N.J. 447, 451-52 (2010)).]

RPC 1.7 provides that, absent each client giving informed consent in

writing,

a lawyer shall not represent a client if the representation

involves a concurrent conflict of interest. A concurrent

conflict of interest exists if:

(1) the representation of one client will be

directly adverse to another client; or

(2) there is a significant risk that the

representation of one or more clients will

be materially limited by the lawyer's

responsibilities to another client, a former

client, or a third person or by a personal

interest of the lawyer.

A-3822-22

62

In determining whether representation is concurrent, our Supreme Court

has stated that "[a]n attorney's responsibility[] as attorney of record in a criminal

proceeding[] terminates upon expiration of the time in which to appeal from the

final judgment or order." S.G., 175 N.J. at 141 (citing R. 1:11-3). Upon

termination of the responsibility to the former client, the situation becomes

"successive representation of clients," where, if the clients' interests are adverse,

"the possibility of breach of client confidences becomes a focus of the conflict

analysis." Ibid.

Although RPC 1.7(a)(2) commands attorneys to avoid concurrent

conflicts between duties to current clients and responsibilities to "former

client[s]," there is persuasive authority that this mandate is intended simply to

incorporate the duties already existing under RPC 1.9:

The 2004 amendments added responsibilities to former

clients to the list of interests that may materially limit a

lawyer's representation of a current client. This

constitutes a significant change in the law, apparently

blurring the distinction between RPC 1.7 and RPC 1.9.

Neither the Pollock Commission nor the Supreme Court

commented on this modification. The [American Bar

Association (ABA)] comments, however, suggest that

the addition was intended to incorporate an RPC 1.9

analysis. See ABA Model Rules of Pro. Conduct r. 1.7

cmt. 9 (2000) ("[A] lawyer's duties of loyalty and

independence may be materially limited by

responsibilities to former clients under Rule 1.9").

A-3822-22

63

[Michels, New Jersey Attorney Ethics, § 19:3-1(a), at

453 (2021) (citations reformatted).]

Applying these principles, we agree with the PCR judge's rejection of

defendant's arguments. Defendant's reliance on RPC 1.7 is misguided because

defense counsel's representations of defendant, the victim, and the victim's

brother were successive. The victim's case was disposed of on May 26, 2006,

and the last time defense counsel represented the brother was May 13, 2009.

Because the 2014 trial was well past the direct appeal time limitation of forty-

five days for these cases, R. 2:4-1(a), trial counsel's responsibility to the brothers

as their attorney of record was over. See S.G., 175 N.J. at 140-43. As the

representations were not concurrent, counsel's representation of defendant was

not a per se conflict. Cottle, 194 N.J. at 467.

Defendant's IAC claims under RPC 1.6 and 1.9 also fail as the record does

not evince an "actual" or "potential conflict of interest." Hudson, 443 N.J.

Super. at 289. Defendant's murder trial and the brothers' cases are not the

"same" matter, as they do not involve the same parties or controversy. RPC 1.9.

They are also not "substantially related" under the test announced in Trupos, 201

N.J. at 451-52. First, defendant admits he does not know "whether [defense]

counsel had damaging confidential information he learned about the victim or

his family." Second, given the age of the prior cases and their lack of connection

A-3822-22

64

to defendant's case, it is unlikely that any facts from the prior representations

were relevant or material.

Neither does the case law suggest that trial counsel's representation of

defendant was materially adverse to his past representations of the brothers

under RPC 1.9. The brothers were not witnesses in this case, see, e.g., United

States v. Moscony, 927 F.2d 742, 747-48 (3d Cir. 1991) (affirming

disqualification of firm from representing criminal defendant where attorney

would have had to cross-examine former client), the victim was not defendant's

adversary, and the victim's character was not in dispute since defendant pursued

an alibi defense, see, e.g., Mickens, 535 U.S. at 178-79 (Kennedy, J.,

concurring) (noting that a defense counsel's unwillingness to attack the character

of a victim—counsel's former client—in a murder trial could be a conflict where

the victim's character was at issue, but that "a theoretical conflict does not

establish a constitutional violation").

Moreover, defendant provides no evidence nor alleges specific facts to

show how the supposed conflicts "adversely affected [his trial] counsel's

performance." Kearney, 479 N.J. Super. at 557 (quoting Mickens, 535 U.S. at

170-71). His arguments that it was "possible" defense counsel may have "cross-

examine[d]" Jones and the victim's "close associates" "less vigorously" or been

A-3822-22

65

discouraged from "[i]nvestigati[ng] . . . the [brothers] and witnesses close to

them" are vague allegations framed as possibilities. They are insufficient to

meet the requisite standard. See R. 3:22-10(e)(2).

Lastly, defendant asserts trial counsel's failure to inform him or the trial

court of the alleged conflict deprived him of his right to choose counsel and

prevented the trial court from evaluating his counsel's fitness to serve. We first

note that a defendant's right to choose counsel "is not absolute." State v. Kates,

426 N.J. Super. 32, 45 (App. Div. 2012), aff'd, 216 N.J. 393 (2014). Regardless,

defendant's trial counsel had no duty to inform defendant or the court of the

conflict of interest because there was none. See Mickens, 535 U.S. at 173-74

(failure of trial court to make inquiry into conflict of interest did not change

finding that conflict did not adversely affect counsel's performance).

In sum, we are convinced there is no merit to defendant's IAC claims,

either individually or cumulatively, and we discern no abuse of discretion in the

PCR judge's rejection of the claims without an evidentiary hearing. See

Marshall, 148 N.J. at 257 ("We reject the cumulative claims on the grounds that

we rejected the individual claims.").

A-3822-22

66

VIII.

Defendant makes several arguments concerning the alleged jailhouse

confession of Quaran Brown. He asserts that the PCR judge erred in denying

his motion for a new trial based on newly discovered evidence because Quaran

Brown's "admi[ssion] he had shot Jordan" "sh[ook] the foundation of the State's

case" against defendant. Relatedly, he claims that the prior PCR judge erred in

denying his discovery request for ACPO's files on Quaran Brown's criminal

record and Sedrick Lindo's murder13 on the basis of the alleged jailhouse

confession. Specifically, defendant alleges the discovery "could have enabled

an additional claim regarding counsel's failure to adequately investigate Kevin

Brown's claims" to "undercut his credibility as an eyewitness."

In his statement to police the day after the murder, Kevin Brown stated he

believed defendant meant to shoot him instead of the victim because defendant

and his associates were "scared at [him] reta[liating]" for the murder of his

brother, Lindo. Prior to trial, the defense filed a motion in limine to forbid the

State from eliciting testimony regarding the Lindo murder, contending that such

testimony would be used to prove defendant's criminal propensity. The trial

13

Defendant alleged in his PCR petition that Lindo was Kevin Brown's brother

who had been murdered in Atlantic City on July 29, 2012, and that Kevin Brown

believed the murder had been committed by "[defendant] and his friends."

A-3822-22

67

court granted the motion pursuant to N.J.R.E. 403, finding the proposed

testimony had "zero probative value" and was "highly prejudicial" because it

intimated defendant was "connected to a pack of murderers." In particular, the

court stated it did not "know how [Kevin Brown] would have known" that

defendant intended to kill him without defendant announcing his motive.

Following defendant's incarceration, he received two handwritten notes

from fellow inmate Kevin Taylor, stating Taylor knew that two men nicknamed

"Looch" and "Drizzy" committed the murder. Attorneys from the Public

Defender's Office then video-conferenced with Taylor, who stated that "Looch

was the shooter" and his real name was "Taquon . . . Brown." Taylor later gave

a signed certification on February 14, 2019, in the presence of an investigator.

In the certification, Taylor stated:

I have had conversations with and have been present for

conversations involving[] an individual named Quaran

Brown on various dates in 2014 and 2015. Brown

admitted to me that he, and not [defendant], had been

the shooter who killed the victim . . . .

I knew Brown by a street name, Drizzy or Haze.

Brown has told me that he and a guy named "Looch"

were the ones involved in the shooting. I remember

Brown being about [5'6"], brown[-]skinned and having

small dreads.

. . . I myself reached out for [defendant] via

handwritten notes I passed to him telling him about the

A-3822-22

68

information I had learned. I did so because it does not

sit well with me that a man like [him] is in prison for a

crime he did not commit.

In denying defendant's motion for a new trial based on the purported

jailhouse confession, the PCR judge first acknowledged the strength of the

State's case, noting it had presented "[three] eyewitness identifications by

individuals who [were] familiar with [defendant] and identified him as the

shooter." The judge then found Taylor's certification failed to satisfy prong one

of the Carter test as it was "merely contradictory":

The arguments [defendant] makes are speculative

at best. Taylor does not identify who the shooter may

have been, other than [defendant], with certainty. The

contradictory aliases for Quaran Brown and lack of

detail from the incident weighs against the credibility

of . . . Taylor's [c]ertification. Further, the conclusory

and speculative nature of [defendant's] arguments

regarding Quaran Brown's motive to not shoot Kevin

Brown are not persuasive as [defendant] has submitted

no proofs to support such a connection. Also, Taylor

never identified why Quaran Brown had the original

intent to shoot James Jordan. . . . The arguments appear

to be self-serving statements that merely serve to

contradict the findings of the [trial] [c]ourt . . . .

We previously recited the legal principles governing the standard for

granting a new trial based on newly discovered evidence. See Nash, 212 N.J. at

549 (quoting Carter, 85 N.J. at 314). While "[t]here can be no doubt that another

person's confession is material and constitutes the sort of evidence that would

A-3822-22

69

probably change the jury's mind," State v. Tormasi, 443 N.J. Super. 146, 151

(App. Div. 2015), such evidence when newly discovered "must be reviewed with

a certain degree of circumspection to ensure that it is not the product of

fabrication," Ways, 180 N.J. at 187-88.

Specifically, "post[-]conviction statements of persons who did not testify

at trial, particularly when serving time at the same institution as defendant, are

'inherently suspect.'" State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)

(quoting State v. Robinson, 253 N.J. Super. 346, 367 (App. Div. 1992)). We

generally only credit exculpatory statements when they are sworn, based on

personal knowledge, and credible from the totality of the circumstances. See,

e.g., State v. Friedman, 4 N.J. Super. 187, 189-91 (App. Div. 1949) (granting

motion for new trial based on sworn, post-trial confession where confessor had

extensive criminal record, defendant had no criminal record for about twenty-

five years prior to being indicted, and confessor had been suspected of

committing crime by State); Allen, 398 N.J. Super. at 250-52, 258-59

(remanding for evidentiary hearing where witness who did not testify at trial

prepared affidavit and gave interview to defense investigator identifying another

person as the murderer).

A-3822-22

70

Applying these principles, we are satisfied the purported jailhouse

confession fails to satisfy prong three of the Carter test because of its patent

unreliability. See Allen, 398 N.J. Super. at 258. We first point out that the

second-hand confession is hearsay because Taylor's certification refers to

Quaran Brown's statements to him. Defendant has provided no affidavit or

certification from Quaran Brown based on Brown's personal knowledge nor has

defendant located Brown. See generally State v. Nevius, 426 N.J. Super. 379,

394-95 (App. Div. 2012) (noting it is within a trial court's discretion to find that

exculpatory hearsay statements against interest are still "too unreliable and

untrustworthy" to be admissible).

Additionally, Taylor's identification of Quaran Brown as the shooter is

dubious at best. Taylor originally identified "Looch" as the shooter and stated

his name was "Taquon . . . Brown." He then changed his story in his

certification, identifying Quaran Brown as "Drizzy" or "Haze" and stating that

"Looch" was instead an accomplice of Quaran Brown's. There is nothing in the

record by which to corroborate the physical description Taylor gave of Quaran

Brown,14 and defendant's proof that Taylor and Quaran Brown were in the same

14

Defendant claims that Taylor was shown a photograph of Quaran Brown and

confirmed that he was the inmate who confessed, but there is no proof of this in

the record. The PCR judge noted as such in her opinion.

A-3822-22

71

prison for approximately two months is inadequate to sufficiently establish the

purported confessor's identity.

Even assuming Quaran Brown confessed to Taylor, defendant has failed

to show sufficient indicia of reliability demonstrating the confession was not

fabricated. Ways, 180 N.J. at 187-88. Taylor's certification does not provide

Quaran Brown's motive to kill the victim and is barren of details as to what

Quaran Brown specifically told him or how he committed the crime. In his PCR

petition, defendant suggested that Quaran Brown was the shooter because of his

"violent spree in Atlantic City" in 2013 and 2014, and also that Quaran Brown

would not have wanted to shoot Kevin Brown because the two were allies.

However, these claims are entirely speculative. Because the evidence is not the

type that would change the jury's verdict, the motion for a new trial was properly

denied.

Similarly, defendant failed to demonstrate good cause for his discovery

requests related to Quaran Brown and Lindo because he did not "allege facts

that if proved, would entitle[] him . . . to relief." Szemple, 247 N.J. at 108

(quoting Turner, 976 So.2d at 511). Defendant's motion to compel amounted to

a fishing expedition for material establishing Quaran Brown's criminal ties to

Kevin Brown. Such information would not have rendered Taylor's certification

A-3822-22

72

credible or established Quaran Brown's motive to kill Jordan. Thus, his newly

discovered evidence claim would have failed regardless.

We are equally unpersuaded that the discovery would have aided

defendant in pursuing an additional IAC claim against his trial counsel for

failure to investigate Kevin Brown. Defendant has not provided a certification

or affidavit specifying what further investigation would have revealed. See

Porter, 216 N.J. at 353. Regardless, trial counsel could not have cross-examined

Kevin Brown on the murder of Lindo anyway because of the trial court's ruling

on the motion in limine. We do not question counsel's strategic decision to

protect defendant from being prejudiced by association with Lindo's murder.

See Cooper, 410 N.J. Super. at 57.

Therefore, we affirm the portion of the December 21, 2021 order denying

defendant's motion to compel discovery and the portion of the June 29, 2023

order denying defendant's PCR petition based on newly discovered evidence.

IX.

Finally, we turn to defendant's claim that the PCR judge abused her

discretion by denying his request for an adjournment of the PCR hearing.

According to defendant, his PCR counsel informed the judge she was still "in

[the] midst of investigating the case," and that "several outstanding issues"

A-3822-22

73

remained, "including regarding video and whether it could be enhanced, and

questions about which witnesses had been and should be interviewed."

We "review a trial court's denial of a request for an adjournment 'under an

abuse of discretion standard.'" Escobar-Barrera v. Kissin, 464 N.J. Super. 224,

233 (App. Div. 2020) (quoting State by Comm'r of Transp. v. Shalom Money

St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013)). "Whether there was an abuse

of discretion depends on the amount of prejudice suffered by the aggrieved

party." Ibid. "Thus, refusal to grant an adjournment will not lead to reversal

'unless an injustice has been done.'" Ibid. (quoting Nadel v. Bergamo, 160 N.J.

Super. 213, 218 (App. Div. 1978)).

At the June 28, 2023 PCR hearing, the judge asked defendant's PCR

counsel what she still needed to investigate. Counsel provided no specific

examples, other than "trying to locate" Carol Johnson, and cited attorney-client

privilege. In denying the request for an adjournment, the judge provided a litany

of reasons why the hearing should go forward, focusing on the case's unusual

and protracted procedural history:

This petition for [PCR] has been pending since June 26,

2018. Briefs were filed by these parties in 2020. On

March 11[], 2021[,] [the first PCR judge] heard full

arguments on those petitions and stated at the end of the

hearing after . . . reviewing the briefs and hearing full

A-3822-22

74

arguments, I'm going to have counsel back in a month

and give you my decision.

And for whatever reason he didn't have counsel

back in a month. . . . [I]n April of 2021 this matter

should have been decided.

....

. . . [F]all of 2022 is when [defendant's second

PCR counsel] entered into this matter and it was

eventually assigned to me[ as a] backlog PCR, . . . as

this was [probably] the oldest . . . [pending] PCR

[petition] . . . .

....

. . . The State has a strong interest in achieving

finality. Without procedural rules requiring the

consolidation of issues, litigation would continue

indefinitely in a disconnected and piecemeal fashion.

. . . [J]udicial resources can be more efficiently used to

decide cases in a timely fashion[, particularly when] . . .

relevant issues in a case are . . . interrelated.

We discern no abuse of discretion in denying the adjournment request and

affirm substantially for the compelling reasons articulated by the PCR judge.

Defendant failed to provide adequate justifications for the adjournment request.

Defendant's PCR counsel received the case file at least six months prior to the

PCR hearing and had already been granted a one-week continuance.

Furthermore, defendant's citations to Rule 3:22-6(d) and case law for the

proposition that his counsel was unprepared to argue the merits are unavailing,

A-3822-22

75

as these authorities merely require PCR counsel to "advance all of the legitimate

arguments requested by the defendant that the record will support." Ibid.; see

also State v. Webster, 187 N.J. 254, 257 (2006) (stating a PCR counsel's brief

must incorporate all "legitimate" "arguments that can be made" from a

defendant's petition); State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000)

(finding "it was not enough" for PCR counsel to "blandly recite [the] defendant's

poorly articulated and inadequately presented arguments" with "passing

familiarity"). Here, PCR counsel demonstrated her familiarity with the facts and

made extensive, vigorous arguments on the claims in defendant's petition.

Moreover, the merits had already been fully vetted and argued in March 2021.

To the extent we have not specifically addressed any of defendant's

remaining arguments, we deem them without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-3822-22

76