The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2139-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AHMAR D. BUTLER, a/k/a
MAR BUTLER, and AHMAR
SPENCE,
Defendant-Appellant.
_________________________
Submitted December 19, 2023 – Decided December 29, 2023
Before Judges Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 12-01-0001.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (David M. Galemba, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Ahmar D. Butler appeals from the February 14, 2022 order
denying his petition for post-conviction relief (PCR) following an evidentiary
hearing. We affirm, substantially for the reasons set forth by Judge Sandra
Lopez in her comprehensive written opinion.
I.
The evidence adduced at defendant's 2013 trial with his co-defendants,
Jonathan P. Thomas and Antwione A. Parsley, was fully detailed in our 2017
unpublished opinion, wherein we affirmed the respective convictions and
sentences of each defendant. State v. Butler, Nos. A-0381-13, A-1741-13, and
A-2051-13 (App. Div. March 30, 2017). We also provided a synopsis of the
facts and procedural history of this matter in our 2020 unpublished opinion ,
wherein we affirmed in part, and vacated and remanded in part, the trial court's
denial of defendant's and Parsley's PCR petition without an evidentiary hearing.
State v. Butler, Nos. A-0884-18 and A-3243-18 (App. Div. Feb. 28, 2020) (slip
op. at 17). Accordingly, we incorporate by reference the recitation of facts and
procedural history contained in our prior unpublished opinions.
As we concluded in our 2020 opinion, defendant and his co-defendant,
Parsley, were entitled to evidentiary hearings on remand "to develop the record
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more fully concerning the alibi evidence" they discussed in their respective PCR
petitions. Id. at 10. Therefore, we directed the remand judge to consider
testimony from alibi witnesses named in defendant's and Parsley's petitions, as
well as "testimony from the respective [defense counsel], explaining whether
they investigated these potential alibis and, if so, why they chose not to present
these witnesses for strategic or other reasons." Id. at 13. We also directed the
remand judge to address defendant's alleged newly discovered evidence as it
related to third-party guilt. Id. at 15-16.
In September 2021, Judge Lopez commenced a four-day evidentiary
hearing on defendant's PCR petition to address his alibi and third-party guilt
claims. The judge heard from alibi witnesses, Lanika Booker and Jermaine
Spence, as well as third-party guilt witnesses, Charlene Daniels and Oreader
Callaway, Jr. Defendant and his trial counsel also testified at the evidentiary
hearing.
On February 14, 2022, Judge Lopez entered an order, denying defendant's
PCR petition. In her accompanying eighty-five-page opinion, the judge first
recounted in painstaking detail the testimony of the witnesses who appeared
before her. She determined the testimonies provided by Booker, Spence,
Daniels and Callaway were not credible.
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However, as to defendant's claim trial counsel was ineffective, Judge
Lopez credited counsel's testimony that he "investigated Booker as a potential
alibi witness" prior to trial, and for tactical reasons, chose not to call her to
testify at trial. Additionally, the judge found counsel's decision not to call
Booker as a witness did "not amount to unsound trial strategy."
Next, the judge believed trial counsel's testimony that "defendant never
identified Jermaine Spence as a potential alibi witness" and that even though
"Spence attended the trial," Spence "never approached" trial counsel "at any
point before or during the trial." Further, the judge credited trial counsel's
testimony that prior to trial, Spence "did not go to the police, the prosecution,
or to [trial counsel]" to disclose Spence's alibi evidence.
Similarly, the judge accepted trial counsel's testimony that prior to trial,
he reviewed "information provided by Daniels that was in discovery" and
concluded "[t]he information . . . Daniels initially provided [to the] police was
unhelpful." The judge also credited trial counsel's testimony that he
"determined . . . further investigation of Daniels was not warranted."
Further, the judge determined defendant "signed a letter [for his trial
attorney,] foregoing an alibi defense," even though the certification defendant
submitted with his PCR petition "made no mention of discussing an alibi
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defense" with trial counsel, "[n]or did his certification contain information about
what he was doing at the time of the murder."
Considering this evidence, Judge Lopez concluded "defendant did not
demonstrate by a preponderance of the evidence that trial counsel's performance
was deficient" nor did he "prove that the result of [his trial] would have been
different had [trial counsel] called Booker, Spence, or Daniels to testify at trial ."
Accordingly, after referencing the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984),1 Judge Lopez found defendant failed to
establish a prima facie case of ineffective assistance of trial counsel.
Judge Lopez also considered and rejected defendant's alternative
argument that he was entitled to a new trial based on newly discovered evidence.
Although the judge acknowledged "[t]he statements of Callaway and Daniels
suggest[ed] a third party—not . . . defendant—committed the murder," Judge
Lopez found a new trial was not warranted because defendant failed to satisfy
the three-pronged test set forth in State v. Carter, 85 N.J. 300 (1981). 2
1
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must show: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland, 466 U.S. at 687.
2
To be entitled to a new trial based on newly discovered evidence, a defendant
must demonstrate the newly discovered evidence is: "(1) material to the issue
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Judge Lopez explained Callaway testified at the evidentiary hearing that
"a few weeks after [he and a fellow inmate, Maurice Brown] were housed
together as cellmates," Brown confessed to murdering Hayes. But the judge also
credited trial counsel's testimony that "Brown gave three different statements
about the murder of Hayes" and "was indicted for false swearing based on two
of those statements." Moreover, Judge Lopez found "Callaway testified quite
candidly to his criminal history[,] which include[d ninety-one] indictable
convictions," and he admitted "he [did] not fear a false swearing conviction
because" he could not "add anything to" the extended term of life imprisonment
he was serving. Accordingly, the judge concluded "defendant failed to satisfy
prong [three] of the Carter test" as to Callaway because "Callaway's testimony
lacked the credibility and veracity of evidence that would 'probably change the
jury's verdict if a new trial were granted.'" Id. at 314.
Similarly, Judge Lopez found "Daniels'[s] testimony at
th[e] . . . evidentiary hearing . . . did not provide newly discovered evidence that
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 were granted."
Carter, 85 N.J. at 314. Each prong must be satisfied before a new trial is
warranted, ibid., and a defendant bears "the burden to establish each prong is
met," State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020).
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would change the jury's verdict." The judge explained that on cross-
examination, "Daniels testified that she d[id] not remember the date on which
Hayes was murdered," even though she lived across the street from the victim,
"she d[id] not remember . . . Maurice . . . Brown" or "being asked to go down to
the [police] station on the night of the murder," and could only "testify to . . . the
words written in" the affidavit she submitted in support of defendant's PCR
petition.
The judge also determined Daniels "did not provide th[e c]ourt with
testimony suggesting that a third-party committed the murder." Instead, she
merely established "she did[ not] see" defendant on the night of the murder, and
did "not remember the night of the murder[,] or other events relevant to the
case." Thus, the judge stated, "as it pertains to Daniels, defendant failed to
establish prongs [two] and [three] of the Carter test, and in the alternative, failed
to establish prong [three] of the Carter test."
Having found defendant failed to establish a prima facie case of
ineffective assistance of trial counsel or "satisfy the Carter standard for a new
trial based on newly discovered evidence," Judge Lopez denied defendant's PCR
petition.
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II.
On appeal, defendant raises the following arguments:
POINT I
TRIAL COUNSEL'S FAILURE TO INVESTIGATE
AND PURSUE AN ALIBI DEFENSE AND/OR
THIRD-PARTY GUILT CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL AND
MANDATES THAT DEFENDANT'S CONVICTIONS
BE REVERSED.
A. TRIAL COUNSEL FAILED TO HAVE
LANIKA BOOKER TESTIFY AS AN ALIBI
WITNESS.
B. TRIAL COUNSEL FAILED TO
INVESTIGATE JERMAINE SPENCE AND HAVE
HIM TESTIFY AS AN ALIBI WITNESS.
C. TRIAL COUNSEL FAILED TO
INVESTIGATE AND HAVE CHARLENE DANIELS
TESTIFY REGARDING THIRD-PARTY GUILT.
POINT II
NEWLY DISCOVERED EVIDENCE MANDATES
THAT DEFENDANT'S CONVICTIONS BE
REVERSED.
A. OREADER CALLAWAY, JR.'S
AFFIDAVIT AND TESTIMONY REGARDING
MAURICE BROWN'S CONFESSION
CONSTITUTED NEWLY DISCOVERED
EVIDENCE.
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B.CHARLENE DANIELS' AFFIDAVIT
AND TESTIMONY REGARDING MAURICE
BROWN CONSTITUTED NEWLY DISCOVERED
EVIDENCE.
Having considered defendant's contentions in view of the applicable law,
we conclude they lack sufficient merit to warrant extended discussion in a
written opinion. R. 2:11-3(e)(2). Accordingly, we affirm for the reasons set
forth by Judge Lopez in her thoughtful and well-reasoned opinion.
Affirmed.
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