STATE OF NEW JERSEY v. ANTWAN SHANNON

NOT FOR PUBLICATION WITHOUT THE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.

ANTWAN SHANNON,

Defendant-Appellant.

__________________________________

May 21, 2014

Submitted March 12, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-1043.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Antwan Shannon appeals the Law Division's December 6, 2012 order denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In our opinion affirming Shannon's conviction, we described the facts underlying his arrest, indictment, and conviction as follows:

On October 30, 2006, defendant called Richard Salsado and asked to see him. Salsado drove to defendant's apartment on Academy Street and picked him up. The two took a ride. While stopped at a light on the corner of Webster and Ferry Streets, defendant left the vehicle, entered a neighborhood convenience store known as G & P Deli, and bought a bag of chips. He returned to the vehicle and asked Salsado if he wanted something from the store. Salsado pulled the car over, and defendant re-entered the store.

Jorge Luiza lived near the scene of the crime in Jersey City. He knew the store owner, Fidalina Claros, because she often let Luiza use the phone in her store. Sometime after midday, Luiza entered the open store. Luiza called out to Claros but received no answer and noticed the emptiness of the store. Luiza saw a male behind the register, thought he was one of Claros' sons, and began to thumb through the newspapers on the rack. Then Luiza saw the male approaching him quickly with a gun in his right hand. The man hit Luiza with the gun across his face, and Luiza fell to the floor. The incident happened quickly; Luiza "barely got to see" the man. Luiza was able to notice that the man was African-American and was wearing a dark parka. When Luiza rose, he noticed Claros on the floor behind the counter with blood streaming down her face. Luiza called 9-1-1.

A patrol police officer responded to Luiza's 9-1-1 call within minutes. Detectives then arrived and took over the scene. After determining that the victim had no pulse, police processed the crime scene. They recovered two shell casings, swabs of blood stains, and some latent prints from the convenience store. Sergeant Efrain Diaz, a ballistics expert, identified the bullet removed from the victim as a .22 caliber bullet. The police also recovered a video tape from a security recorder, but the tape was not recording during the murder.

After October 30, 2006, the detectives followed several leads but did not develop a meaningful case until January 2007, when Madeline West filed a second domestic violence complaint against defendant. She noted that she filed the first domestic violence complaint after "he had beat me up bad." The second complaint followed another beating. After West filed the second complaint, she informed police that defendant may have been involved in the robbery and shooting at the G & P Deli.

At trial, West testified that she lived with defendant in October 2006. She also testified defendant returned to the apartment on October 30, 2006, and banged on the door. She let defendant in because "he scared [her]." When defendant entered the apartment, West noticed blood on his boots and pants. Defendant threw money on the bed and told West to count it. West recounted that defendant told her he had just committed a robbery, and thought he had "killed the bitch because I had to shoot her again." Defendant seemed "shook up" and paced about the room. He told West to look out the window and see if Salsado was still parked outside. Defendant counted the money, claimed he had to go outside and share it, and changed his clothes.

West provided police with Salsado's name and told them she saw Salsado seated in a car outside their apartment after defendant returned to change his clothes.

The police went to Salsado's apartment on January 9, 2007. While Salsado hid on the roof of his apartment building, the police searched Salsado's apartment pursuant to consent given by Salsado's wife. The police recovered .22 caliber ammunition, .40 caliber ammunition, and a .40 caliber handgun.

Salsado surrendered either later that day or soon thereafter. He gave the police no information about the October 30, 2006 crime, and he was charged with possession of the .40 caliber handgun found in his apartment. Salsado was in jail for a few days before he posted bail. He claimed he was later contacted by defendant, who was in the Hudson County Correctional Facility, and defendant left him messages telling Salsado to "lay low." On March 21, 2007, Salsado was arrested and charged with felony murder in connection with the October 30, 2006 murder of Claros at the convenience store. Prior to trial, Salsado pleaded guilty to first degree armed robbery in exchange for his testimony against defendant.

At trial, Salsado testified that when defendant returned to Salsado's car, he told Salsado to pull away. Salsado noticed defendant was "shaky and nervous." Salsado recounted that defendant told him "he just robbed the bodega and shot the clerk." Salsado noticed blood on defendant's pant leg. Salsado asked if defendant had killed the clerk, and defendant replied that he had.

Salsado drove defendant north towards Hoboken and then back towards downtown Jersey City. Salsado dropped defendant off at his apartment on Academy Street but waited in the parking lot across from the apartment building. Defendant ran out of the car and went inside the building.

Salsado also testified that defendant left the apartment within two minutes to speak to him. He told Salsado to "be cool" and retrieved a hooded sweatshirt from the back seat. Salsado did not see defendant with a gun or with money when he returned to the car, but Salsado believed he saw defendant with a gun sometime that day. Defendant then returned to the apartment and Salsado left. Salsado also admitted that he gave defendant a .22 caliber gun as partial payment of a drug debt. Police never recovered the gun used in the shooting.

[State v. Shannon, No. A-2082-08 (App. Div. Dec. 3, 2010) (slip op. at 2-7) (alteration in original) (footnote omitted).]

The jury found Shannon guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). After appropriate mergers, the trial judge sentenced Shannon to an aggregate term of life imprisonment with a thirty-year period of parole ineligibility. We affirmed the conviction and the Supreme Court denied certification. State v. Shannon, 205 N.J. 519 (2011).

On May 10, 2012, Shannon filed a pro se PCR petition alleging constitutionally ineffective assistance of trial counsel. He was subsequently assigned counsel, who amended the petition and filed a supplemental certification, as well as filing a brief. The PCR judge heard oral argument on December 6, 2012, after which he delivered an oral decision explaining his reasons for denying relief and dismissing the petition. An implementing order was filed on the same day. This appeal followed.

II.

Shannon raises the following issues, through counsel, on appeal:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS

A. Trial Counsel Failed To Have An Alibi Witness Testify

B. Trial Counsel Induced Defendant Not To Testify By Misinforming Him Regarding The Consequences Of A Polygraph Exam

Before turning to those issues, we outline the law that governs our disposition of the appeal.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63 (emphasis omitted).

The focus of Shannon's appeal is his contention that his trial attorney was constitutionally deficient in failing to call an alibi witness to testify at the trial. The murder for which Shannon was convicted took place during the middle of the day on October 30, 2006. Shannon asserts that Gerry Williams, for whom he was doing occasional work at the time, would have testified that Shannon was working for him in Jersey City at the time of the murder, and that his trial counsel should have called Williams as an alibi witness.

The record contains two uncertified investigation reports purporting to reflect interviews of Williams by an investigator working for the defense. The first, which contains the substance of a telephone interview conducted on August 22, 2007, reports as follows:

Mr. Williams is the sole proprietor of Locater's, Inc. He redevelops homes and resells them, and has hired Mr. Shannon a number of times on an as-needed basis. Accordingly, Mr. Williams recalls that on October 30, 2006, Mr. Shannon worked for him at 52 Astor Place in Jersey City, from 8:00 a.m. to 4:00 p.m., doing finishing work (light carpentry, painting, molding and electrical outlets). Mr. Williams stated he remembered October 30, 2006 in particular, because of the impending closing of the sale of the home at 52 Astor Place. Mr. Williams explained that this was not the first time he had hired Antwan Shannon to work as a day laborer.

The second, which contains the substance of a telephone interview conducted on November 8, 2007, reports as follows:

During my interview with Mr. Williams, he explained that he is a real estate investor. Consequently, he buys properties then makes all the necessary repairs before either renting or (re) selling the property. He recalled that during the time in question, he was in the process of renovating a property located on Astor Place. According to Mr. Williams, he recalled paying Antwan Shannon approximately $100 in cash for a few days work, which consisted of [painting], cleaning, replacing outlet covers, and the like. Mr. Williams stated that this is not the first time he has hired Antwan Shannon as a day-laborer, and he normally hires his laborers on a need basis.

Shannon argues that the reports establish a prima facie case of ineffective assistance of counsel for failure to call a viable alibi witness, and that the PCR judge erred in refusing to hold an evidentiary hearing. We disagree.

Shannon's PCR counsel asserted at oral argument that Williams would testify that he and Shannon were working together at the time of the murder. The first report from the investigator does not support that assertion because it only says that Shannon "worked for" Williams on that date. It does not state that they were working together or that Williams was at the work location the entire time. The second report, which purports to have been based on a re-interview of Williams less than three months after the first, does not even mention the date of the murder, but speaks generally of "the time in question."

The PCR judge understandably took the second report as representing a retreat from the assertion of the earlier statement that Williams would testify about October 30. The second report, like the first, contains no assertion that Williams was present when Shannon was doing the work. In addition, the reports themselves, which are on plain paper, are not authenticated or supported by a certification from the investigator attesting to the truth of their contents, and there is no certification from Williams himself confirming that he was actually with Shannon on the date of the murder. Finally, there is nothing in the record explaining an inability to get such certifications in support of the PCR petition.

Although a PCR petitioner is entitled to all reasonable inferences from competent evidence submitted in support of the petition, Preciose, supra, 129 N.J. at 462-63, we are satisfied that the two unsworn, hearsay documents at issue were insufficient to support a prima facie case. In addition, given the inconsistency between the two statements as to the date and the lack of assertion in either statement that Williams was actually with Shannon at the time, trial counsel's decision not to call him as a witness bespeaks a matter of trial strategy. See State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988).

Having reviewed the additional arguments raised on appeal in light of the record and the applicable law, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We add only that the trial judge thoroughly questioned Shannon concerning his decision not to testify and found it to be voluntary. In addition, given the prior convictions available to impeach the truthfulness of Shannon's testimony, we find no basis to believe that the result would have changed had Shannon testified.

In summary, we find no basis to conclude that the representation Shannon received at trial was constitutionally deficient or that it led to an unjust result. The evidence against him was overwhelming. Because Shannon failed to present a prima facie case as required by Strickland, he was not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462-64.

Affirmed.