STATE OF NEW JERSEY v. DUQUENE PIERRE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0410-07T40410-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUQUENE PIERRE,

Defendant-Appellant.

__________________________

 

Submitted February 23, 2009 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-0789.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Drozd, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). For the following reasons, we reverse and remand so that additional testimony may be taken prior to a final determination by the PCR judge.

Tried to a jury, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (a)(2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The offenses were merged, and defendant was sentenced to an aggregate term of sixty years with a thirty-five year parole disqualifier.

The conviction was affirmed on direct appeal, and certification was denied. State v. Pierre, No. A-6355-95 (App. Div. August 19, 1999), certif. denied, 162 N.J. 488 (1999). Thereafter, defendant filed a PCR petition and was granted an evidentiary hearing on his ineffective assistance of counsel claim. His petition was denied, and we affirmed the denial. State v. Pierre, No. A-6519-03 (App. Div. July 18, 2006). The Court granted defendant's petition for certification and summarily remanded the matter back to the trial court "for an evidentiary hearing to permit defendant to present alibi-related witnesses." State v. Pierre, 189 N.J. 102 (2006). The remand hearing was conducted on July 20, 2007, and relief was denied by order dated July 23, 2007. This appeal followed.

Some background is necessary. Defendant's conviction stemmed from the March 20, 1994 early morning shooting death of Richard J. Myers. The State's witnesses included Alison Johnson, who testified that defendant and his co-defendant Jean Dorval appeared at her apartment on the morning of March 20, following the shooting, to ask her about the authenticity of a $100 bill. A few days later, she overheard the co-defendant bragging to defendant about shooting someone.

At trial, defendant raised an alibi defense. His girlfriend, Yashonda Reid, testified that defendant spent March 18, 1994, with her and left on the morning of March 19 to drive with the co-defendant to Florida to spend two weeks visiting family. Reid produced a phone bill verifying that she received a collect call at 12:32 p.m. on March 20, just hours after the murder, from Hardeeville, South Carolina.

After his arrest, the police searched defendant's black Acura and found a speeding ticket issued on March 19, 1994, at 11:34 p.m. on Interstate 95 in Yemassee, South Carolina, three hours before the murder. The ticket identified the driver as "Pierre Duquene." When interviewed by police, defendant stated that he had been stopped "somewhere in South Carolina" by a "good-sized" police officer who had no southern accent. Defendant described the officer as approximately five feet, eleven inches in height, clean shaven, sporting short hair and possibly wearing a cowboy hat.

Captain Paul Barnett of the Yemassee Police Department testified for the State on rebuttal. He was six feet, two inches in height, weighed approximately 240 to 260 pounds, had shoulder-length hair, a long mustache, and spoke with a heavy southern accent. Barnett stated that he issued the ticket on the morning of March 19, 1994, to the driver of an Acura bearing New Jersey tags. He was shown a photo driver's license by the driver in the name of "Pierre Duquene" or "Duquene Pierre." Barnett remembered two African-American men seated in the Acura, but could not identify either defendant or the co-defendant. He also testified that he never wore a hat, and that on the date in question, his hair was shoulder-length and he wore a mustache and an earring. Consequently, the State argued to the jury that the ticket had been issued, not to defendant, but to someone else who used his automobile and his identification.

At the initial PCR hearing, defendant's trial attorney testified that the heart of defendant's alibi defense was the speeding ticket issued in his name in South Carolina three hours before the murder occurred in New Jersey. Trial counsel believed that the alibi defense would be more effective if the jury heard only about the speeding ticket, as opposed to hearing from a string of family members who would testify that defendant had been in Florida a day or two after the murder. Even if they were believed, hypothesized trial counsel, instead of furthering an alibi defense, the jury might conclude that defendant fled to another state after the shooting. Trial counsel also testified that defendant agreed that it was best to focus on the issuance of the speeding ticket and forego presenting the testimony of his Florida relatives.

The PCR judge concluded, based on the trial attorney's testimony as to trial strategy, that the ineffective assistance standard articulated in Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984), and adopted State v. Fritz, 105 N.J. 42, 58 (1987), had not been met. We concurred with this decision.

The Supreme Court, however, summarily remanded to allow "defendant to present alibi-related witnesses." Pierre, supra, 189 N.J. at 102. During the remand hearing, the PCR judge permitted defendant's three Florida family members to testify, but refused to allow defendant to present the testimony of his sister, Astrid Pierre, and his brother, Kirby Pierre, both of whom resided in New Jersey at the time of the murder. The judge would not permit defendant's girlfriend, Reid, to testify either. The proffered testimony from the Pierre siblings was intended to establish that Kirby at least was not using defendant's vehicle when the ticket issued. Reid would have testified as to additional calls she purportedly received from defendant while he was in Florida.

That the PCR judge would have concluded that the remand was ordered for the limited purpose of admitting testimony from only the Florida relatives is understandable. As the State successfully argued, because the names of defendant's siblings and the additional testimony from Reid were not even mentioned in the PCR appeal moving papers to the Supreme Court, the remand order could not have, in the most literal sense, included those witnesses within its scope.

Nonetheless, on PCR defendant redefined his alibi as including not only the issuance of the speeding ticket in South Carolina, but also his presence in Florida, and asserted that the PCR court should have afforded him the opportunity to present those proofs. Defendant claimed that he was entitled to present testimony from all potential witnesses having information that supported his more expansive alibi theory.

We are constrained to agree with defendant. The remand extended to defendant the opportunity to fully develop the "alibi-related" record. In aid of this purpose, he should have been permitted to present the testimony of his siblings and Reid, in addition to that of his Florida relatives.

Our remand should not be construed to imply any judgment as to the ultimate merits of the ineffective assistance of counsel claim in relation to the purported alibi. This remand is merely intended, as we believe the Court's initial remand was intended, to afford defendant an opportunity to more fully develop his proofs, and in doing so, to present any and all "alibi-related witnesses." The determination as to whether the PCR claim has merit is left for the trial judge after a further hearing.

Reversed and remanded.

 

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A-0410-07T4

June 19, 2009