STATE OF NEW JERSEY v. AZIZ GILLIARD

NOT FOR PUBLICATION WITHOUT THE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.

AZIZ GILLIARD,

Defendant-Appellant.

_______________________________________

July 17, 2015

Submitted December 15, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0239.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Kathleen E. Bond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Aziz Gilliard appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR) claiming ineffective assistance of trial counsel. We affirm.

I.

The salient facts presented at trial were set forth in our decision on defendant's direct appeal. We affirmed his conviction and sentence in an unpublished opinion. State v. Gilliard, No. A-2279-09 (App. Div. August 5, 2011), certif. denied, 209 N.J. 597 (2012). We recite only those facts relevant to the issues on appeal.

Shortly before midnight on June 18, 2006, after a Father's Day barbeque, Kawan Hill was shot in the head at close range and killed in a courtyard of the Stanley Holmes Village housing complex (Village) in Atlantic City. The following morning, Ronald Harris gave police a taped statement in which he identified Laquay Snyder as the shooter. Harris also identified Snyder in a photograph. However, upon investigation, Snyder's assertion that he was home all evening with his mother at her apartment in Absecon was confirmed by the mother and Snyder's downstairs neighbor, who said she spoke on the phone with Snyder between ten and eleven p.m. on the evening of the shooting. Both later testified at trial, asserting the same facts. Harris subsequently "backed away from his I.D.," and he testified at trial that Snyder was too short to have been the shooter.

The police interviewed three other witnesses who each gave sworn statements identifying defendant as the man who shot Hill. The witnesses who implicated defendant recanted their testimony at trial, but their prior statements were played to the jury.

An additional witness, Sharif Whitlock, told investigators that he believed defendant shot Hill. Whitlock did not recant at trial. However, he noted both in his statement and in his testimony that he did not actually see defendant shoot Hill, but that he turned immediately after hearing a shot and saw defendant standing next to Hill with his arm extended and what he believed to be an automatic handgun in his hand. He testified that he saw Hill grab his head after being shot. Whitlock also testified that various other people then started shooting, but only after defendant shot Hill. He admitted that he had fired at defendant following the shooting of Hill, and that defendant and another man, Hassan Irizarry, fired their guns as they fled the scene. Whitlock testified that he was drunk and high at the time of the events. Like other witnesses, he also acknowledged that he did not want to testify and was present only because he had been subpoenaed.

On August 4, 2006, Yashmairah Sanders gave a taped statement in which she said that she saw Shamir Harper shoot Hill. According to Sanders, Harper, defendant, and two other men rode into the Village on bicycles. She stated that Harper got off of his bike, approached Hill, shot Hill in the head, then got back on the bike, and all four men rode away. However, Sanders called the prosecutor on the eve of trial and recanted her statement. At trial, she testified that she was not present at the shooting, but gave the statement at her then-boyfriend's suggestion and because she believed defendant would not have shot Hill.

During defense counsel's summation to the jury, the trial judge interrupted to place on record, at sidebar, that counsel had discussed with defendant his decision not to testify. The judge stated that the matter had been discussed the previous day, but he forgot to place it on record that morning because of confusion regarding another defense witness. Defense counsel and defendant both confirmed that the matter had been discussed and that defendant did not wish to testify. The court then inquired as to whether defendant "want[ed] the charge," and defendant nodded in the affirmative. Accordingly, the judge instructed the jury that they were not to consider defendant's waiver of his right to testify during their deliberations.

The jury subsequently acquitted defendant of first-degree murder, but found him guilty of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). Defendant was also found guilty of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault by pointing a weapon at another, N.J.S.A. 2C:12-1(b)(4); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7; but not guilty of count three, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).1

The court sentenced defendant to thirty years in custody for aggravated manslaughter, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as a consecutive sentence of ten years in custody with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b) for possession of a weapon by a convicted felon. Both sentences were to be served consecutively to the sentence that defendant was then serving on an unrelated conviction in Maryland.

Defendant, with the assistance of counsel, filed a PCR petition. On May 10, 2013, after oral argument, the PCR judge, who was also the trial judge, denied defendant's petition. Defendant, in a single point heading with five sub-headings, in contravention of Rule 2:6-2(a)(5), appeals the denial of his PCR petition, arguing

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTAIRY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO CALL A WITNESS WHOSE TESTIMONY WOULD HAVE SUPPORTED THE DEFENSE THAT THE DEFENDANT WAS NOT INVOLVED IN THE VICTIM'S HOMICIDE.

C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO THOROUGHLY DISCUSS WITH HIS CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY IN HIS OWN DEFENSE.

D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT A WITNESS WHO WOULD HAVE AFFIRMATIVELY SUPPORTED A THIRD PARTY GUILT DEFENSE.

E. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN SEVERAL DIFFERENT RESPECTS, THE TRIAL COURT ERRED IN FAILING TO AFFORD HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THESE CONTENTIONS.

II.

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. "However, a defendant is not entitled to an evidentiary hearing if the allegations are too vague, conclusory, or speculative." State v. Porter, 216 N.J. 343, 355 (2013) (citation and internal quotation marks omitted). Where the PCR court denies a petition without an evidentiary hearing, we "conduct a de novo review" on appeal, 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), "consider[ing] petitioner's contentions indulgently and view[ing] the facts asserted by him in the light most favorable to him." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant argues his trial counsel was ineffective because he failed to call a witness, Zachary Duncan, who would have exonerated him; failed to call defendant to testify on his own behalf; and failed to argue that a third-party, Sharif Whitlock, had committed the shooting.2

In support of the witness exoneration argument, defendant submitted to the PCR court an undated letter allegedly written by Duncan. The handwritten, printed letter3 reads

(As-salam-Alaikum)

A yo Brother ABDUL Aziz, I don't know you that well but I was taken too the prosecuters office and they ask me about a murder of Bosheed who was my best friend. They said they was told I DJ that night but I told them nothing even though I did DJ that night in. I saw you at my DJ table when shots went off. I no you didn't do it young man, I just didn't want to talk to them. May God Bless you

Zachary Duncan

In the brief accompanying his petition, defendant claimed he showed the letter to his trial counsel, who read it and returned it to defendant without making "any efforts to have Zack Duncan testify." Defendant did not submit any certifications or affidavits to support these contentions, not even a certification from Duncan as to the authenticity of the letter or its contents.

The PCR judge addressed the merits of each of defendant's contentions and found that none constituted a prima facie case of ineffective assistance of counsel. Thus, the court denied defendant's petition without holding an evidentiary hearing. It is from that decision that defendant appeals.

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). State v. Miller, 216 N.J. 40, 58 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). First, "the defendant must demonstrate [] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid.

A.

To establish that his trial counsel was deficient, defendant must show his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Ibid. (citation and internal quotation marks omitted). In making that showing, defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004) (alteration in original) (citation and internal quotation marks omitted). "Whether this duty has been satisfied is measured by 'reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "[W]hen a petitioner 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 on the personal knowledge of the affiant or the person making the certification." Porter, supra, 216 N.J. at 353 (alteration in original) (citation and internal quotation marks omitted).

Defendant offered no proof that the letter was actually written by Duncan or how he came into possession of the letter. Defendant merely stated that he gave Duncan's letter to his trial counsel, without identifying when or where this event took place, and that trial counsel only read it and returned it to him without taking any other action. Defendant also failed to offer any support for the alleged fact that counsel failed to investigate the letter. Further, he offered no affidavit or certification from Duncan attesting to the truth of the letter or that Duncan would testify to the facts contained therein. Since defendant offered no factual support for this claim, it is merely a bald allegation not warranting an evidentiary hearing. See R. 3:22-10(c) (requiring factual assertions be based on personal knowledge and supported by a certification or affidavit of the declarant before an evidentiary hearing is granted); Porter, supra, 216 N.J. at 355.

As the PCR court stated

[Duncan] didn't want to get involved. It's just another one of those things where the other people recanted where somebody then was gotten to to do a to do a letter. To not use that is doesn't come close in my view to establishing anything under Strickland. The State basically says, and is correct that there's no affidavit, no certification about the letter. The writing wasn't signed or dated. I don't know where it came from. But in any way in any event, it's another red herring in the case.

Defendant also contends, without any support in the record, trial counsel was ineffective by not discussing with him "all relevant ramifications associated with the decision" of whether or not to testify. We recognize in order to waive the right to testify, a criminal defendant must be aware of the right and must make a knowing decision to give it up. See State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005). As occurred here, the trial court should determine, on the record, whether the defendant wished to testify or to waive that right

[W]hen a defendant is represented by counsel, the court need not engage in a voir dire on the record to establish defendant's waiver. Nevertheless, . . . the better practice [is] for a trial court to inquire of counsel whether he or she has advised a defendant . . . of his or her right to testify. Or, alternatively, to advise defendant directly.

[Ibid. (third and fourth alterations in original) (citations and internal quotation marks omitted).]

Defendant acknowledged to the court he waived his right to testify. Defense counsel and defendant both confirmed that the matter had been discussed and that defendant did not wish to testify. Defendant contends the colloquy among the court, defense counsel and himself was "clearly inadequate and insufficient for the court to conclude that he had knowingly, voluntarily and intelligently waive his right." He further argues it was trial counsel's obligation to make a record demonstrating that conclusion. We disagree. As we have stated, to discuss this issue with a defendant might "inappropriately involve the trial court in the unique attorney-client relationship, raising possible Sixth Amendment as well as Fifth Amendment concerns." State v. Bogus, 223 N.J. Super. 409, 423-24 (App. Div.), certif. denied, 111 N.J. 567 (1988). We conclude counsel's performance was not deficient.

Next, defendant argues his counsel was ineffective for failing to present an argument that Sharif Whitlock was the shooter. Whitlock implicated defendant in a statement to the police. "Except as otherwise provided in these rules or by law, all relevant evidence is admissible." N.J.R.E. 402. A defendant has the right to present a defense that someone else committed the crime. State v. Fortin, 178 N.J. 540, 590 (2004). Known as third-party guilt, this right "does not address whether specific evidence is admissible in support of such a defense." Id. at 591. "Third-party guilt evidence 'need only be capable of raising a reasonable doubt of defendant's guilt' to warrant its admissibility." Ibid. (quoting State v. Koedatich (Koedatich II), 112 N.J. 225, 299 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). "Stated more concretely, there must be some link . . . between the third party and the victim or crime, capable of inducing reasonable people to regard the evidence as bearing upon the State's case." Ibid. (citations and internal quotation marks omitted). The connection between the third party and the crime must be more than just conjecture. Ibid.

Counsel did argue to the jury that three other individuals could have been the shooter. Defendant contends since three .45 caliber shell casings, one .40 caliber shell casing and an unfired .45 caliber cartridge were recovered at the scene, and since Whitlock admitted to possessing and firing a .40 caliber weapon, counsel was ineffective by not arguing to the jury Whitlock's potential third-party guilt. The PCR judge noted Whitlock did not match the description given by the witnesses of the shooter, stating, "[a]s far as this physical description, numerous people testified about specific characteristics of Mr. Gilliard, including this missing tooth." He further determined the decision of counsel was trial strategy. We agree counsel's performance in not arguing Whitlock's guilt was not deficient.

We therefore hold the PCR court correctly determined that these claims were entirely without merit.

B.

Moreover, even if defendant could show deficient performance, his claims still fail under Strickland's second prong. To establish prejudice from a deficiency, the defendant must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Parker, supra, 212 N.J. at 279-80 (citation and internal quotation marks omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

Defendant has proffered no facts to support a reasonable probability that the results of the proceeding would have been different. Specifically, as to defendant's third-party guilt argument, since counsel argued three other individuals could have been the shooter, which was not accepted by the jury, defendant was not prejudiced by the lack of an argument concerning Whitlock as the shooter, particularly since he did not match the witnesses' description.

Consequently, we agree with the PCR judge defendant failed to present a prima facie case in support of post-conviction relief. See Marshall, supra, 148 N.J. at 158. Here, defendant's allegations are too vague, conclusory, or speculative, and the PCR judge was correct that he was not entitled to an evidentiary hearing. Porter, supra, 216 N.J. at 355.

Affirmed.

1 The trial court dismissed count five, third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2, prior to trial.

2 Defendant also claimed that counsel failed to argue that one of the State's witnesses was coached and failed to ensure defendant's presence at the Wade hearing. These arguments were abandoned on appeal.

3 The content of the letter is reproduced without any corrections to the spelling, grammar, or punctuation.