STATE OF NEW JERSEY v. MAURICE MCKINNON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6272-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE MCKINNON,1

Defendant-Appellant.

__________________________

December 13, 2012

Submitted October 17, 2012 - Decided

Before Judges Simonelli and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0420.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Maurice McKinnon appeals from the October 13, 2010 Law Division order, which denied his motion for post conviction relief (PCR). We affirm.

A grand jury indicted defendant for second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (count two); four counts of first-degree criminal attempt to commit murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts three, four, five and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count seven); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight). The charges stemmed from defendant's involvement in the drive-by shooting death of Cheryl Green and wounding of other victims. Defendant's trial strategy was to show there were other suspects the police did not investigate, the State's witnesses who had identified him as the shooter lacked credibility, and the police pressured him to give a statement admitting he shot at the victims.

On November 1, 2005, a jury acquitted defendant on counts one and four. The jury found defendant guilty of the lesser included offenses of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, on count two, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on counts three, five and six. The jury also found defendant guilty of the weapons offenses in counts seven and eight. On January 31, 2006, the trial judge sentenced defendant to an aggregate thirty-four year term of imprisonment with a twenty-eight year, eleven month period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. McKinnon, No. A-4152-05 (App. Div. April 24, 2008), certif. denied, 196 N.J. 465 (2008). Defendant timely filed a PCR petition, contending that trial counsel rendered ineffective assistance by failing to: (1) object to a State's witness, George Martinez, testifying while shackled;2 (2) investigate defendant's mother and aunt who would have provided alibi testimony; and (3) object to the trial judge's use of the instruction on causation for murder in re-charging the jury on aggravated and reckless manslaughter.

In an October 7, 2010 oral decision, the trial judge denied defendant's PCR petition, concluding that defendant failed to establish the two-prongs set forth in Strickland v. Washington, 466 U.S. 668, 687 104 S. Ct. 2052, 2064 80 L. Ed. 2d 674, 693 (1984). The judge found that State v. Kuchera, 198 N.J. 482 (2009), which prohibits a State's witness from testifying while shackled, did not apply retroactively to this case. He determined that defendant benefited by Martinez testifying while shackled because it helped defendant's trial strategy to discredit this witness.

The trial judge found that defendant presented no certifications from the alleged alibi witnesses. In addition, the judge emphasized that because there was overwhelming evidence of defendant's involvement in the shootings, including defendant's statement, alibi witnesses may have inflamed the jury and resulted in his conviction of the more serious charges. The judge also determined that because the jury acquitted defendant of the more serious charges, he benefited from the judge's use of the instruction on causation for murder when re-charging the jury on aggravated and reckless manslaughter. This appeal followed. On appeal, defendant raises the same arguments he raised before the trial judge.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64.

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey).

"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

When claiming that trial counsel inadequately investigated the case, the defendant "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." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.

Applying the above standards, we discern no reason to disturb the trial judge's decision. Defendant produced no certifications or affidavits from his mother or aunt confirming they could have provided alibi testimony. Such documents are required to prove ineffective assistance of counsel based on an inadequate investigation. Ibid.

In addition, at the time of defendant's trial, there was no prohibition against a State's witness testifying in shackles. Thus, counsel was not ineffective in failing to object to Martinez's testimony. In any event, defendant has shown no prejudice from Martinez's appearance in shackles.

Defendant also has shown no prejudice from the judge's use of the instruction on causation for murder when re-charging the jury on aggravated and reckless manslaughter. When re-instructing the jury on purposeful and knowing murder, the judge gave the following causation instruction:

Causation has a special meaning under the law. To establish causation, the State must prove two elements each beyond a reasonable doubt. First, that but for the defendant's conduct, Cheryl Green would not have died; second, Cheryl Green's death must have been within the design and contemplation of the defendant. If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on and the defendant's liability, or on the gravity of his offense. In other words, the State must prove beyond a reasonable doubt that Cheryl Green's death was not so unexpected or unusual that it would be unjust to find the defendant guilty of murder.

[(Emphasis added.)]

This causation instruction mirrors that found in Model Jury Charge (Criminal), "Murder (N.J.S.A. 2C:11-31(1) and 3a(2))" (2004).

By contrast, the causation instruction for aggravated manslaughter is as follows:

Causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt: First, that but for the defendant's conduct, [the victim] would not have died. Second, [the victim's] death must have been within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendant's conduct, and must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of (his/her) offense. In other words, the State must prove beyond a reasonable doubt that [the victim's] death was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated manslaughter.

[Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4a)" (2004) (emphasis added).]

The causation instruction for reckless manslaughter mirrors the aggravated manslaughter causation instruction. See Model Jury Charge (Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4b(1))" (2004).

The causation instruction the trial judge used to re-charge the jury on aggravated and reckless manslaughter was erroneous; however, the error did not prejudice defendant because it required the State to prove that Cheryl Green's death "must have been within the design and contemplation of the defendant" rather than "within the risk of which defendant was aware."

1 Although the notice of appeal lists defendant's name as Maurice McKinnon, he is also referred to as Khalif and/or Kalif McKinnon.

2 Martinez gave a statement to the police identifying defendant as the shooter. He also identified defendant from a photo array. At the time of trial, he was serving a prison sentence for drug possession, the latest in a string of arrests and convictions. At trial, he identified defendant as the shooter and said he had no doubt that defendant was the man he saw with the gun.