STATE OF NEW JERSEY v. EMIR OUTLAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMIR OUTLAW,

Defendant-Appellant.

______________________________

August 11, 2014

Submitted April 1, 2014 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-11-1121.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief; Kirah Addes, Agent Attorney, on the brief).

PER CURIAM

Defendant appeals from the trial court's denial, without an evidentiary hearing, of his petition for post-conviction relief. We affirm.

Defendant was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2); three counts of first-degree attempted murder, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3; two counts of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; and multiple other assault and weapons-related offenses. He was sentenced to an aggregate term of life plus twenty years with a forty-year parole disqualifier.

Defendant's conviction arose out of a retaliatory shooting in Paterson on July 15, 1996. The State presented evidence that defendant and his co-defendant, Reggie Jackson, previously had altercations with Kevin Jackson and Deshon Brisbon. Bearing a shotgun and a handgun, and wearing masks over their faces, defendant and Reggie Jackson shot Kevin Jackson and Brisbon while they were among several other individuals. Kevin Jackson was seriously wounded. The shooters also struck and killed a fifteen-year-old bystander, and struck and grievously injured another bystander.

The State's case rested substantially on defendant's own confession, which the court deemed admissible after an extensive Miranda1 hearing. At trial, the jury heard from the detective who obtained defendant's written statement and participated in the lengthy police investigation. The detective testified that the confession was voluntary and not coerced. Defendant's mother also testified that her son told her, during a break in the police interrogation of him, that he was present at the scene of the shooting with Reggie Jackson, but that he only shot in the air.

Brisbon testified about two prior incidents involving defendant and Reggie Jackson. In the first, Reggie Jackson threatened Kevin Jackson with a gun while another man, not defendant, threatened Brisbon with a bat. In the second incident, defendant and another man, not Reggie Jackson, armed with a knife, fought with Brisbon and Kevin Jackson. At the end of that incident, defendant allegedly said to Brisbon and Kevin Jackson, "I'll be back, I'm going to get you." Brisbon alleged that defendant and Reggie Jackson accused Kevin Jackson of stealing their drug stash.

Through a police witness who appeared on the scene after the shooting, the State presented the out-of-court statement of Kevin Jackson. While he lay in the street, lapsing in and out of consciousness, Kevin Jackson said that defendant and Reggie Jackson were the shooters. However, the defense elicited from a different police witness that Kevin Jackson later stated that he did not see defendant's face and that he believed defendant was present because he was Reggie Jackson's "partner" and followed him around "like a puppy dog."

Defendant did not testify in his own defense. However, defendant did testify at the pre-trial Miranda hearing, to contest the detective's testimony that defendant voluntarily provided his statement. Defendant also repudiated his mother's prior statement that, during their mid-interrogation meeting, he admitted to her that he was present at the shooting. He alleged that his statement was involuntary, and was the product of physical abuse and threats. He accused his mother of lying.

Defendant testified that he lived in two different apartments at a public housing project, one, occupied by Ms. Clarkson and her children, and another, occupied by Ms. Boyd. He asserted that he was not present at the shooting. Instead, he claimed that he told the police that on the day of shooting, he met his mother at her house after she finished her workday; he then spent time in Clarkson's apartment, and ended the day in Boyd's apartment. He was arrested while in Clarkson's apartment, three days after the shooting. However, the defense did not call Boyd or Clarkson.

We affirmed defendant's conviction on direct appeal. State v. Outlaw, No. A-4000-97 (Nov. 10, 1999), certif. denied, 163 N.J. 75 (2000). We rejected defendant's challenge to the trial court's Miranda decision, as well as his claims that he was denied his right to an impartial jury under State v. Gilmore, 103 N.J. 508 (1986), and his sentence was excessive.

Defendant's March 27, 2002, pro se PCR petition alleged, without specifics, that his trial and appellate counsel were ineffective. In a supplemental certification filed over four years later, defendant alleged that his attorney was ineffective because he failed to conduct an adequate investigation, in particular, he failed to obtain alibi testimony from Boyd. Defendant also generally asserted that his trial and appellate counsel failed to confer with him. He also alleged that Kevin Jackson's hearsay identification of him was wrongfully admitted at trial.

Defendant provided an unsigned certification attributing various statements to Boyd, now known as Ms. North.2 The certification stated that North lived at an address that we infer was the apartment defendant described in his testimony. It alleged that defendant would often stay over at the apartment. According to the certification, North could not remember the exact date of the shooting, but she could "remember reading the newspaper the day after the incident in which Mr. Outlaw was charged and a description of the murder. [She] was surprised at this as he had been at [her] apartment the evening before and having stayed over that night as he had many times previously." North allegedly told the police that defendant was present in her apartment "all that night playing cards and talking."3 She did so when they executed a warrant to seize defendant's property one or two days after the murder. She claimed the police told her that defendant had confessed. According to the certification, defense counsel never contacted North. After defendant's trial, North wrote to defendant.

Defendant asserted for the first time, during oral argument on the PCR petition, that he discussed the prospect of North's testimony with his attorney. Defendant stated that his attorney was aware of North because "[s]he was in the grand jury minutes."4 He claimed his attorney told him "because she didn't make a statement, he wasn't gonna (indiscernible) or interview her. She didn't make a statement to the police; he was, like, you don't need to call her."

The trial court applied the well-settled two-prong test for determining ineffective assistance of counsel. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Without expressly addressing whether it was deficient of trial counsel not to call North as an alibi witness, the court concluded there was no prejudice. The court questioned the time-frames supporting the claim that defendant was in North's apartment the night of the shooting. The court apparently conducted its own internet search of newspaper articles5 and concluded that the first newspaper article about the shooting appeared not the day after the incident, as stated in North's certification, but three days after. The court found that North's testimony would not have created a reasonable probability that the outcome of the trial would have been different. "I cannot accept that Ms. North's ambivalent and somewhat imprecise testimony about Mr. Outlaw's whereabouts on the evening of the shooting would have been so compelling as to overwhelm the effect of a mother's implication of her son in a horrific crime."

On appeal, defendant raises the following points for our consideration:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE PCR COURT APPLIED A PRIMA FACIE STANDARD THAT WAS CONTRARY TO STATE V. PRECIOSE AND R. 3:22 CRITERIA.

POINT II TRIAL COUNSEL'S FAILURE TO INTERVIEW ALIBI WITNESS MS. NORTH, AND TO PRESENT THE DEFENSE OF ALIBI AT TRIAL, WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE CUMULATIVE ERRORS DENIED DEFENDANT A FAIR TRIAL.

As the trial court did not conduct an evidentiary hearing, "we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super.351, 373 (App. Div. 2014) (citing State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)). We also review issues of law de novo. Harris, supra, 181 N.J.at 419.

We recognize that adequate preparation is the hallmark of effective counsel. "[C]ounsel has a duty to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' A failure to do so will render the lawyer's performance deficient." State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). A court need not hold a hearing if "the defendant's allegations are too vague, conclusory, or speculative to warrant" one. State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See alsoR.3:22-10(e)(2).

In this case, defendant has failed to provide competent evidence in the record on appeal to support his claim that his trial counsel failed to prepare adequately, in particular, he failed to call a potential alibi witness. We note that defense counsel was necessarily aware of defendant's claim that he was present in North's apartment because he said so during the Miranda hearing. The reason why North was not called is not apparent from the record. We shall not speculate, nor shall we credit defendant's statement during oral argument, because it was unsworn, that defense counsel declined to call her because she allegedly had not made a prior statement to police.

Since the North certification was unsigned, it is of no consequence.6 See R. 1:4-4(b). Therefore, the claim that North would have been willing to testify at trial, and that she would have testified that defendant was present in her apartment at the time of the shooting is nothing more than a "bald assertion." Consequently, we need not determine whether her testimony, if offered consistent with that presented in the unsigned certification, would have been credible enough to create a reasonable probability that the jury would have reasonable doubt about defendant's guilt. See State v. L.A., 433 N.J. Super. 1, 16-17 (App. Div. 2013) (in weighing impact of absent witness's testimony, "a court should consider: (1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution" (internal quotation marks and citation omitted)).

Defendant's remaining arguments lack sufficient merit to warrant any further discussion in a written opinion. R.2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 According to the certification, North was formerly known as "Bouie" not "Boyd."

3 North's version of defendant's whereabouts does not account for defendant's admitted presence in Clarkson's apartment that evening.

4 Defendant apparently failed to recall that he identified North in his Miranda hearing testimony.

5 We do not condone the trial court's independent fact-gathering, which the court did not disclose until the hearing on the PCR petition. Cf. In re Dubov, 410 N.J. Super. 190, 201-02 (App. Div. 2009).

6 We note that even if it had been signed, it still would not have constituted competent evidence, because the statements therein were made "to the best of [her] knowledge, information and belief." See Patrolman's Benevolent Ass'n of Montclair, Local No. 53 v. Town of Montclair, 70 N.J. 130, 133-34 & n.1 (1976); Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998) (stating factual assertions based merely upon "information and belief" are inadequate).