STATE OF NEW JERSEY v. KESHAWN MC NEIL

NOT FOR PUBLICATION WITHOUT THE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.

KESHAWN MC NEIL,

Defendant-Appellant.

_________________________________

September 7, 2016

Submitted June 7, 2016 Decided

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3548.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, 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).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Keshawn McNeil appeals the August 29, 2013 order denying his petition for post-conviction relief (PCR) and the October 29, 2013 order denying his motion for reconsideration. We affirm.

I.

We summarize the facts established in defendant's trial, which were set out at length in our October 21, 2011 opinion on direct appeal. State v. McNeil, A-0856-09 (App. Div. Oct. 21, 2011), certif. denied, 210 N.J. 109 (2012). We highlight the relevant facts here.

Defendant's girlfriend, Staci Marshall, was living in a Newark rental property owned by Liciane Nunes and victim Fabio Borges. On February 23, 2007, Marshall received an eviction notice addressed to another person. When Marshall called her landlords, she learned that eviction proceedings had been instituted against her as well. She agreed to pay her overdue rent the next day.

On February 24, 2007, Marshall mentioned this to defendant, and she said that she would be low on money after the rent was paid. Defendant told her not to worry and that he would "get the money back." A plan was made that defendant would rob Borges after Marshall had paid her rent, and then she and defendant would go to Atlantic City.

After Marshall paid the overdue rent in the amount of $1250, she contacted defendant, who robbed Borges and, during the robbery, shot him, causing his death from a single gunshot wound to the chest.

Following the robbery and shooting, defendant and Marshall met in East Orange. There, defendant disposed of Borges's wallet in a trash can and his credit cards in a sewer. The pair then took the 10:30 p.m. bus to Atlantic City, where defendant gave Marshall $400 as gambling money.

Initially, Marshall was aware that Borges had been robbed, but she did not know that he had been shot. However, in the early morning hours, defendant informed her that he had shot Borges "in the area where he knew he would be okay" because he "felt like shooting [his] gun." They returned to Marshall's residence by the first morning bus.

Following a police interrogation, and despite threats of harm from defendant, Marshall implicated defendant in the robbery and shooting. Marshall also showed the police the location of Borges's wallet and credit cards, which were recovered.

K.B., a resident in the building where defendant worked as a security guard, testified that on February 26, 2007, defendant placed a call using her phone, and muttered to himself that the recipient of the call should pick up the phone, because defendant needed an alibi.

Defendant and Marshall were charged with conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); and felony murder, N.J.S.A. 2C:11-3(a) (Count Three). Defendant was charged individually with murder, N.J.S.A. 2C:11-3(a)(1) and -(2) (Count Four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Five); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six).

Marshall pled guilty to Counts One and Two, pursuant to a negotiated plea agreement. Marshall testified as a State witness in defendant's trial.

On Count One, the jury found defendant not guilty of murder, but guilty of the lesser-included offense of aggravated manslaughter. The jury found defendant guilty on all remaining counts.

On July 23, 2009, the Honorable Jerome M. St. John sentenced defendant to life in prison on Count Three, subject to parole ineligibility under N.J.S.A. 2C:11-3(b), the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c). On Count Five, the trial court sentenced defendant to a concurrent five years in prison. Defendant appealed, we affirmed, and our Supreme Court denied certification.

On June 7, 2012, defendant filed a PCR petition. PCR counsel filed a brief. After hearing argument, the PCR court denied defendant's petition on August 22, 2013, and memorialized its decision in an August 29, 2013 order.

On September 11, 2013, defendant filed a pro se "Motion for Reconsideration on an Application for Post-Conviction Relief." On October 29, 2013, a second PCR judge treated defendant's motion as a second petition for PCR, and denied it.

Defendant filed this appeal. In his counseled brief, defendant argues

POINT I THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE FAILURE OF TRIAL COUNSEL TO INVESTIGATE AND PRESENT AN ALIBI DEFENSE, THE RESULT WOULD HAVE BEEN DIFFERENT BUT FOR THE ERROR AND THEREFORE POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II THE INTERESTS OF JUSTICE MANDATE A REMAND FOR A FULL EVIDENTIARY HEARING ON ALL ISSUES RAISED IN THE POST-CONVICTION RELIEF MOTION.

POINT III THE PCR COURT ERRED IN RULING THAT COUNSEL'S FAILURE TO DEMAND THAT THE DEFENDANT BE PRESENT DURING A PORTION OF JURY VOIR DIRE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV THE PCR COURT ERRED IN RULING THAT APPELLATE COUNSEL WAS NOT INEFFECTIVE IN FAILING TO RAISE ON DIRECT APPEAL THE VERY IMPORTANT ISSUE OF THE IMPROPER HANDLING OF THE JURY QUESTION.

POINT V THE PCR COURT ERRED BY CONSIDERING DEFENDANT'S MOTION FOR RECONSIDERATION OF HIS FIRST POST[-]CONVICTION RELIEF AS A SECOND POST-CONVICTION RELIEF PETITION.

Defendant raises the following additional argument pro se

POINT I TRIAL COURT ERRED IN DENYING PETITIONER POST-CONVICTION RELIEF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WITH PROPER REVIEW AND EVIDENTIARY HEARING [sic].

II.

As the PCR court did not hold an evidentiary hearing on the claims defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to our standard of review.

To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In so doing, a defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). "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." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The court must view the facts "'in the light most favorable to defendant.'" Ibid.(citation omitted).

III.

First, defendant argues that trial counsel was ineffective for failing to investigate and present an alleged alibi witness. "Failure to investigate an alibi defense is a serious deficiency that can result in the reversal of a conviction. Indeed, 'few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the jury[.]'" State v. Porter, 216 N.J. 343, 353 (2013) (citation omitted). However, "[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 upon the personal knowledge of the affiant or the person making the certification." Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)); see R. 3:22-10(c).

Here, defendant presented a letter, sent from trial counsel to defendant before trial, which stated: "I was able to contact out [sic] witness [T.M.]. I found [T.M.] to be very cooperative. However, I wish to obtain all of the discovery before I obtain his statement." Defendant also submitted a certification from the Chief Investigator from the Essex County Public Defender's Office, averring that its records "do not show any [investigation] request by [trial counsel] relating to a witness by the name of [T.M.]." Defendant also submitted a letter from an Assistant Chief Investigator at the Office of the Public Defender, Warren Region, indicating that trial counsel "has no recollection of being told by the defendant or by anyone else of a possible alibi witness including [T.M.]." None of those documents even show that T.M. was a potential alibi witness.1

In any event, defendant did not submit a certification or affidavit from T.M. or recounting T.M.'s proposed testimony. Thus, defendant failed to "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 170-71 (rejecting a petitioner's "bare assertion of an alibi" where he "has not supplied an affidavit or certification of [the witness] that would support petitioner's alibi"); cf. Porter, supra, 216 N.J. at 350 (defendant supported alibi argument with affidavits from himself and the alibi witness).

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions[.]" Porter, supra, 216 N.J. at 355 (quoting Cummings, supra, 321 N.J. Super. at 170). Because defendant failed to "allege specific facts and evidence supporting his allegations," they "'are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]'" Ibid. (quoting Marshall, supra, 148 N.J. at 158).

IV.

Next, defendant claims trial counsel was ineffective for failing to demand defendant be present for the in-chambers questioning of a juror about that juror's failure to appear for a day of deliberations.

Rule 3:16(b) provides that unless a defendant's presence is waived, "[t]he defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict[.]" Moreover, the United States and New Jersey Constitutions protect "[t]he right to be present at trial to confront witnesses or evidence against a defendant." State v. A.R., 213 N.J. 542, 557 (2013). In addition, due process "requires a defendant to be present at every stage of the proceedings, '"whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."'" Id. at 557-58 (quoting State v. Dellisanti, 203 N.J. 444, 453 (2010) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934))).

When Juror 11 failed to appear for deliberations on Monday, June 1, 2009, the trial court had to adjourn deliberations until June 3. On June 3, trial counsel waived defendant's presence during the upcoming questioning of the juror

THE COURT: We're back on the record. We're in chambers with counsel. [Trial counsel], do you waive [defendant's] presence in chambers?

[TRIAL COUNSEL]: It was my request that we voir dire the juror in chambers, Judge, and following the practice that we've gone through so far, I think it's better; just counsel and the Court and the court reporter.

THE COURT: So you have no problem waiving his presence here? Correct? [Defendant]'s?

[TRIAL COUNSEL]: Judge, I would just like to follow the procedure that we've followed so far, which [defendant] understands from past occasions, whereas whenever we speak to the juror where we want to put them at ease and get the most from them, that we do it here in chambers. And I think that following that past practice, I've explained to [defendant] jurors would mostly speak more freely when the client's not a party, you know, in that sense, as in presence, so just the lawyers and the Court.

THE COURT: All right. Thank you very much.

The trial court then questioned the juror in chambers, on the record, in the presence of counsel. The juror explained he "got the days mixed up" because "we don't usually come on Monday."

Contradicting trial counsel's representation to the trial court, defendant's certification on PCR alleged that he "was never aware that my trial attorney waived my right to be present at different trial stages/elements of my trial on numerous occasions with my consent," that the trial counsel did so on his "own accord," and that defendant never gave his "authority or permission" to do so.

Even assuming that defendant had a right to be present, and accepting defendant's certification that trial counsel was unauthorized to waive that right, defendant cannot show prejudice. The colloquy with Juror 11 did not involve the receipt of evidence or the confrontation of witnesses. Because defendant cannot show that "the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him," his claim of prejudice must be "more critically examined." Dellisanti, supra, 203 N.J. at 458-59, 461 (finding "no prejudice from [a defendant's] lack of participation in the court's response to the brief, simple factual questions posed by the jury"). Moreover, the colloquy to determine why the juror was late "did not have a reasonably substantial relation to [defendant's] opportunity to defend the charges against him." A.R., supra, 213 N.J. at 559 (finding no prejudice from the deliberating jury watching video evidence in the defendant's absence).

Defendant has not shown prejudice here, particularly given the "vigorous and able representation" provided by trial counsel during the colloquy with the juror. State v. Trent, 157 N.J. Super. 231, 235, 241-42 (App. Div. 1978) (finding "not the slightest indication that defendant was actually prejudiced by his absence" from a colloquy at which a sick juror was discharged), rev'd on other grounds, 79 N.J. 251 (1979); see State v. W.A., 184 N.J. 45, 64 (2005) (indicating it can be harmless for a court to "'conduct side-bar discussions with prospective jurors in a defendant's absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments'") (citation omitted); see also State v. Hammond, 231 N.J. Super. 535, 541-42 (App. Div.) (finding no prejudice from instructing the jury in the defendant's absence), certif. denied, 117 N.J. 636 (1989); State v. Childs, 204 N.J. Super. 639, 650 (App. Div. 1985) (finding no prejudice in responding to a jury note in the defendant's absence). Accordingly, defendant cannot show a reasonable probability that, but for trial counsel's waiver of defendant's presence, the result of the proceeding would have been different. Parker, supra, 212 N.J. at 279-80.

V.

Defendant argues that appellate counsel was ineffective for failing to challenge the trial court's response to a question posed by the jury during deliberations. The jury's question involved the testimony of Lieutenant Michael DeMaio, who testified on behalf of the State that police were able to obtain a surveillance video from a security camera at a public school near Borges's home on the day of the homicide. Without objection, the video was then moved into evidence and played for the jury. Lieutenant DeMaio then testified that the time-stamped video footage showed the approach of Marshall's car, with its lights out, backing down Borges's street at 8:20 p.m., and it showed a person entering the passenger side of the car and the car taking off at 8:22 p.m. Stills of the video footage, which also displayed the timestamps, were also moved into evidence.

During deliberations, the trial court received a note from the jury, which read: "Can we hear the testimony of DeMaio talking about the time stamp of the video please?" In a colloquy with counsel, the trial court proposed that it "simply ask the jury to clarify what they mean by time stamp and to be more specific about the type of testimony they would like read back to them. Is that acceptable to both parties?" Trial counsel said "Yes," as did the prosecutor.

After the trial court asked the jury to clarify, the jury sent back a note, leading to the following exchange between the court and counsel

THE COURT: I received the following note from the jurors: "Please read back the direct testimony of DeMaio with regards to the surveillance tape", and then an asterisk, we are looking for the accuracy of the footage regarding time.

This note has now been marked as C-12. I would propose that I simply have the jurors come out, line them up and say there is no testimony by DeMaio with regard to the accuracy of the footage.

TRIAL COUNSEL: I agree, Judge.

When the jury returned, the following exchange occurred

THE COURT: Ladies and gentlemen, I received the following note from you: Please read back the direct testimony of DeMaio with regards to the surveillance tape. We are looking for the accuracy of the footage regarding time.

Ladies and gentleman, there is no testimony regarding the accuracy of the footage regarding time. All right? Okay, ladies and gentleman?

JUROR: Okay, thank you.

Thus, trial counsel consented to the trial court's responses to the jury's notes. "Under the invited error doctrine, 'trial errors that "were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting A.R., supra, 213 N.J. at 561). "The doctrine acknowledges the common-sense notion that a '"disappointed litigant"' cannot argue on appeal that [such] a prior ruling was erroneous[.]" A.R., supra, 213 N.J. at 561 (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)).

Therefore, the invited error doctrine barred appellate counsel from claiming error in the trial court's responses to the jury's notes, because trial counsel had consented to those responses. Nor could appellate counsel have plausibly argued for the exception to the invited error doctrine, because the court's responses did not "'cut mortally into the substantive rights of the defendant,'" and "'"cause a fundamental miscarriage of justice."'" A.R., supra, 213 N.J. at 562 (citations omitted).

In his five-page point claiming the ineffective assistance of appellate counsel, defendant includes one sentence stating: "Trial counsel was ineffective in not objecting to the court's response." A claim raised in "one conclusory sentence" without any legal argument is waived. Ramapo Brae Condo. Ass'n, Inc. v. Bergen Cty. Hous. Auth., 328 N.J. Super. 561, 582 (App. Div. 2000), aff d o.b., 167 N.J. 155 (2001); see U.S. Bank Nat. Ass'n v. Curcio, 444 N.J. Super. 94, 114 (App. Div. 2016).2

In any event, defendant has failed to show that trial counsel was ineffective. Given that the fatally-wounded Borges called Nunes at 8:25 p.m. to say he had been shot, it would hardly have been helpful to defendant to have Lieutenant DeMaio repeat that the video timestamp showed the shooting occurred between 8:20 to 8:22 p.m., or to suggest that the timestamp was accurate. It was more favorable to defendant for trial counsel to agree that the trial court should inform the jury there was no testimony that the video's timestamp was accurate.

Moreover, the jury indicated that the trial court had answered its question. Thus, defendant cannot show a reasonable probability that the result of the proceeding would have been different if trial counsel had objected. Parker, supra, 212 N.J. at 279-80.

VI.

Defendant's pro se claims of ineffective assistance of counsel are undeveloped and unsupported. For example, defendant argues that trial counsel was ineffective for failing to appear in court to argue various pro se motions filed by defendant, or to move to suppress unidentified evidence or get a "probable cause hearing." These vague arguments, which are undeveloped and unsupported by certifications, "are without sufficient merit to warrant discussion." R. 2:11-3(e)(2).

Defendant notes that "numerous request was [sic] made on 4/30/07, 5/30/07,10/4/07, forcounsel tofile aspeedy trialmotion in accordance with the defendants Sixth Amendment constitutional rights." Although defendantattaches thoserequests, he makes no legal argument to support this claim raised in "one conclusion sentence." Ramapo Brae, supra, 328 N.J. Super. at 582. He also attaches his own motion for dismissal for unnecessary delay, and accompanying brief, but we do not know the result of that motion. Moreover, the PCR court did not address this claim, which was only mentioned in a paragraph of PCR counsel's brief unheralded in any point heading. We decline to address this issue under these circumstances.

Defendant argues trial counsel should have investigated whether there were fingerprints on Borges's wallet, but defendant failed to show such a test would have been helpful to the defense. See Childs, supra, 204 N.J. Super. at 646. Indeed, such a test could have shown defendant's fingerprints were on the victim's wallet.

Defendant argues that trial counsel should have requested a taint or evidentiary hearing regarding Marshall's testimony that her photograph of defendant on the beach holding a handgun was taken in Atlantic City hours after the shooting. Rather than ask for a baseless hearing, trial counsel called an expert, FBI Agent Michael Quinn, who testified to the chronological sequence of the digital photographs including a cropped version of the handgun photo. Trial counsel then argued that the expert's testimony was inconsistent with Marshall's testimony. This was not ineffective assistance.

As defendant has failed to present a prima facie case of ineffective assistance of trial counsel or appellate counsel, the PCR court did not err in denying defendant's PCR petition without an evidentiary hearing.

VII.

Finally, defendant argues that the second PCR judge erred in considering his motion for reconsideration as a second PCR petition. In a letter decision dated October 29, 2013, the second PCR judge stated that Rule 1:7-4(b) "applies only to motions and not Post-Conviction Relief petitions," and that reconsideration of the denial of a PCR petition is not "recognized under the Rules of Court." The judge considered defendant's motion a second or subsequent petition for PCR under Rule 3:22-4(b) and found that defendant failed to satisfy that Rule's requirements for overcoming dismissal.

Motions for "reconsideration" are explicitly referenced only in Rule 4:49-2, part of the rules governing civil practice. However, Rule 1:7-4(b) provides that in all types of actions, "[o]n motion made not later than 20 days after service of the final order or judgment upon all parties by the party obtaining it, the court may grant a rehearing." The motion "shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or on which it has erred." Ibid.

The denial of defendant's petition for PCR was certainly a "final order" under Rule 1:7-4(b). Where, as here, a motion for reconsideration addresses only those claims made in a defendant's PCR petition, it was improper to treat such a motion as a second or subsequent petition for PCR. Rather, it should have been addressed as a motion to reconsider. See, e.g., State v. Allegro, 193 N.J. 352, 356 (2008).

However, considering the motion for reconsideration to be a second petition for PCR was harmless, because in any event any future PCR petition by defendant will be subject to the standards governing "second or subsequent petitions" under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Moreover, the second PCR judge also held that defendant "fail[ed] to state with specificity what errors the court made and what the court overlooked."

Although "motions for reconsideration are not expressly provided for by Part III of the Rules of Court governing practice in the criminal courts, we have nevertheless applied the standards contained in Rule 4:49-2 to such applications." State v. Wilson, 442 N.J. Super. 224, 233 n.3 (App. Div. 2015), certif. granted on other grounds, 224 N.J. 119 (2016); see State v. Timmendequas, 161 N.J. 515, 554 (1999) (noting "the appropriateness of interlocutory motions to reconsider in criminal matters"). "Motions for reconsideration in criminal matters are committed to the sound discretion of the trial court and are generally intended 'to correct a court's error or oversight.'" State v. A.S.-M, 444 N.J. Super. 334, 346 (App. Div. 2016) (quoting State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015)). Reconsideration "should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Puryear, supra, 441 N.J. Super. at 294 (quoting Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)).

Here, defendant's PCR petition was not denied on a palpably incorrect basis, nor did defendant specifically allege any particular evidence which the PCR court failed to consider or appreciate. Thus, his motion for reconsideration was meritless.

Affirmed.

1 PCR counsel simply argued in his brief that defendant's cousin T.M. could have established that defendant was at his aunt's house "when this incident allegedly took place."

2 In the PCR court, defendant claimed the trial court erred in its responses. Defendant added a few conclusory aspersions against trial counsel, but the PCR court did not perceive defendant as claiming trial counsel's ineffectiveness.