STATE OF NEW JERSEY v. ZAIRE EVANS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1702-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAIRE EVANS,

Defendant-Appellant.

________________________________________________________________

Telephonically argued February 21, 2013 Decided August 26, 2013

 

Before Judges Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1288.

 

Alan Dexter Bowman argued the cause for appellant (Mr. Bowman, attorney; Michael Confusione, Designated Counsel, (Public Defender) on the brief).

 

Robin Ann Hamett, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Defendant Zaire Evans appeals from the April 13, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

A Camden County jury found defendant guilty of first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1), (count one); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count three); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count six); third-degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2 (count seven); and second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count eight). After appropriate mergers, the court imposed an aggregate sentence of fifty years' imprisonment with thirty-five years of parole ineligibility.

We affirmed the conviction and remanded the case for resentencing on counts six and seven, and for reconsideration on count seven. State v. Evans, No. A-3398-03 (App. Div. Dec. 23, 2005), certif. denied, 187 N.J. 80 (2006).

Defendant was re-sentenced with a new aggregate sentence of forty-five years with thirty-two-and-a-half years of parole ineligibility. In 2006, defendant filed an appeal challenging the new sentence, and a PCR petition. The PCR petition was dismissed due to the pending appeal, and defendant later withdrew the appeal. The instant pro se PCR petition was filed in 2008 and raised claims of ineffective assistance of counsel for failure to: (1) adequately review discovery and police conduct related to the initial stop of defendant's vehicle, and the subsequent arrest and detention; (2) communicate with defendant; (3) call essential witnesses; (4) conduct pre-trial investigation and case preparation, and inadequate representation at trial; (5) establish that defendant was manipulated into providing a false statement; and (6) object to false testimony introduced at trial.

Assigned counsel filed a brief addressing different issues, namely ineffective assistance of counsel for: (1) failing to adequately explain the sentencing exposure to defendant; (2) making improper comments during closing argument; and (3) failing to call Joel Rivera and Norris Wallace, whose statements allegedly constituted newly discovered evidence. Defendant filed subsequent pro se supplemental briefs. Oral argument on the petition was heard before the Honorable Ronald J. Freeman, J.S.C., in April 2011.

The relevant facts as adopted by the PCR court are as follows:

The convictions arose from the murder of William Quinones (Wimo) who was shot to death on May 4, 2001, at approximately 11:00 P.M., on 25th and Federal Streets in Camden. An off-duty Camden City police officer was passing by at the time, when he witnessed a Hispanic male in a white car arguing with a tall, heavy-set black male. The black male was standing by the open car door. About one minute later, the officer heard three to five shots. He could not identify the two people. At the same time and location, a fifteen-year-old witness, who knew defendant and Wimo, saw defendant with "Yogi," whom he also knew, and another male. He heard gunshots, looked over, and saw defendant with a gun in his hand and muzzle flashes coming from it. The gun was pointed toward Wimo, who, according to the witness, was outside his car. Defendant was standing at the rear of the car. The witness heard six to nine shots.

 

On May 7, 2001, several days after the shooting, defendant was taken to the police station around 2:00 p.m. At 6:45 p.m., defendant was read his Miranda1 rights. He thereafter gave two taped statements, both of which were played for the jury. In the first statement, taken shortly after he was Mirandized, defendant admitted to seeing Wimo just before the shooting. He was "kind of drunk" and "was running off at the mouth saying that he gonna get me." Defendant "got fed up with it" and he punched him in the face two or three times. Defendant claimed he then walked away. As he was walking away, he heard the gunshots. From the corner of his eye, he saw Yogi holding a gun in his hand and shooting. In the second statement, taken at 12:12 a.m. on May 8, 2001, defendant recounted an argument with Wimo, who was in his car, leading to defendant's punching him a number of times. Wimo threatened that he was "gonna get" defendant and that defendant was "gonna get" his. Defendant took this to mean that he was going to "do something to me." Defendant then continued: "I walked back around the car. I seen him reaching for something under the seat. I think it was a gun." He then asked Yogi to give him a gun, "so I pulled out the gun and I shot him."

 

At trial, in addition to this evidence of defendant's culpability, the State presented a "jail-house confession" through the testimony of David Douglas. In January 2003, defendant was housed in the Camden County jail, along with Douglas, who was housed in a nearby block. Douglas had known defendant for seven to eight years. Douglas testified that defendant told him that he had "bitch-slapped" (backhanded) the victim and "his boy handed him the hammer and he banged him." According to Douglas, "hammer" meant "gun" and "bang" meant to "shoot."

 

Defendant recounted a different version and also presented two exculpatory witnesses, Michael Allen, a friend of Wimo, and Jessica Plaza, the girlfriend of Joel Rivera, who was a friend of defendant.

 

Defendant told the jury that he was at the scene of the crime, insisted that there was no previous bad blood between defendant and Wimo but that just prior to the shooting, he punched Wimo twice with his left hand and once with his right hand in the head and mouth while standing on the driver's side of the car, with the driver's door open. One of Wimo's legs was outside the car and the other was still in the car. Someone grabbed defendant's arm and said: "Leave him alone, his mouth is bleeding." Then he heard gunshots and someone say: "Get away from the car." He saw Yogi with a gun.

 

Following oral argument on the PCR petition, the PCR judge rejected the defendant's claim that the court and trial counsel failed to adequately explain the sentencing exposure as procedurally barred under Rule 3:22-3 and -4. Defendant alleged that on three occasions in the pre-trial stage, the judge and his trial counsel provided him with misinformation pertaining to applicability of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to the murder counts. He had been advised that on the murder charges, he could face life imprisonment with parole ineligibility of thirty years or eighty-five percent under NERA. The PCR judge found, however, that on September 15, 2003, the trial judge corrected the earlier representations and "fully" informed defendant that the 2001 amended NERA provisions would not apply to the murder counts.

The PCR judge also found that this claim should have and could have been raised on direct appeal, particularly given that on direct appeal, defendant challenged his sentence but failed to mention this current claim. Then, on the merits, the court found even if defendant had been advised each time of the accurate sentencing exposure, that defendant's repeated rejection of plea offers indicated that the advice would not have changed the outcome.

Next, the judge determined that the claim that the State's summation was improper was procedurally barred under Rule 3:22-3 and -4, as not being raised on direct appeal. During his summation, the prosecutor referred to a witness as "honorable" and as a "fine, upstanding citizen." The judge found that the prosecutor's comments were brief, harmless and not so egregious as to deprive defendant of a fair trial. As such, defendant did not satisfy the Strickland/Fritz2 criteria.

On the next claim, the PCR judge accorded deference to trial counsel's strategic decision not to call Joel Rivera as a witness after a thorough investigation. Rivera had given an eyewitness statement to the investigators describing his observations at the scene. During the trial, Rivera was brought to court from federal prison; however, as defense counsel attempted to meet with him and the investigator regarding his statement, Rivera refused to cooperate. Thereafter defense counsel decided not to call Rivera as a witness. As to Norris Wallace, trial counsel attempted to secure his testimony but Wallace's attorney would not consent to an interview or participation by defense counsel. The PCR judge found that counsel's actions were not objectively unreasonable.

The PCR judge found that defendant had failed to overcome the strong presumption that trial counsel made a reasonable, strategic decision to not call these witnesses during the trial, a witness whom he could not prep or interview prior to trial based on Rivera's unavailability, and the other witness who was advised not to participate.

Lastly, defendant raised several claims in his pro se supplemental briefs that the judge determined had been addressed by defense counsel. As to the remaining claims, the judge determined that they were procedurally barred under Rule 3:22-4.

On appeal, defendant raises the following claims:

 

I. THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR [PCR] AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

 

1. Defendant's Petition is Not Barred.

 

2. Defendant Established at Least Prima Facie Evidence of Ineffective Assistance of Counsel.

 

3. Defendant Established a Prima Facie Right to a New Trial on [the] Grounds of Newly Discovered Evidence.

4. At the Very Least, Defendant's Claims Warranted an Evidentiary Hearing in the Court Below.

 

W

e have carefully considered the record and find no merit to these contentions. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons set forth by Judge Freeman in his comprehensive and well-written twenty-six page decision on April 13, 2011. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz, supra, 105 N.J. at 52. Instead, here, defendant merely makes bald assertions without supporting his claims. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J.199 (1999). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Affirmed.

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

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (A defendant must show that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced his defense); see State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey).