STATE OF NEW JERSEY v. ALLAN L. EAFORD
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4061-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLAN L. EAFORD, a/k/a LASHAUN
EAFORD, ALAN EAFORD, LESHAUN A.
EAFORD, LASHAWN S. EAFORD,
LESHAUN EFORD, ALLEN L. EAFORD,
and BILL EAFORD,
Defendant-Appellant.
_____________________________
Submitted October 17, 2017 – Decided December 15, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
08-10-1785.
Joseph E. Krakora, Public Defender, attorney
for appellant (David J. Reich, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals the denial of his application for post-
conviction relief (PCR) without an evidentiary hearing, and raises
the following single argument in his merits brief:
THE COURT BELOW ERRED IN DENYING EAFORD'S
PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING CONCERNING HIS CLAIM THAT COUNSEL'S
FAILURE TO REQUEST A LESSER[-]INCLUDED OFFENSE
JURY INSTRUCTION, WHICH WOULD HAVE ALLOWED THE
JURY TO FIND EAFORD GUILTY OF MANSLAUGHTER
INSTEAD OF PURPOSEFUL MURDER, OR EVEN TO
CONSULT WITH EAFORD CONCERNING THAT
POSSIBILITY, VIOLATED EAFORD'S RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
UNITED STATES AND NEW JERSEY STATE
CONSTITUTIONS.
In his pro se brief, he contends:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED
TO OBJECT TO THE TRIAL COURT WHEN IT ABUSED
ITS DISCRETION WHEN IT ALLOWED THE JURY TO
WATCH A REPLAY OF THE VIDEO DURING
DELIBERATION WITHOUT TAKING PRECAUTIONS TO
REDUCE THE POSSIBLE PREJUDICE TO THE
DEFENDANT, AND SUCH REPLAY WAS NOT HELD IN
OPEN COURT, WHICH WAS CONTRARY TO THE U.S.
CONST. AMENDS. V [sic], XIV; THE N.J. CONST.
ART. 1, [¶¶] 1, 10.
A. APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILURE TO RAISE
THIS ISSUE ON DIRECT APPEAL.
POINT II
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR
FAILURE TO DISCLOSE FAVORABLE PLEA BARGAIN
FRO[M] THE STATE TO THE DEFENDANT AND FAILURE
2 A-4061-15T1
TO ADVISE DEFENDANT OF THE MAXIMUM SENTENCE
EXPOSURE, VIOLATING THE U.S. CONST. AMENDS. V
[sic], XIV; N.J. CONST. ART. 1, [¶¶] 1, 10.
We conclude petitioner failed to establish that defense counsel
was ineffective, and that the results of the trial would have been
different but for counsel's alleged errors; accordingly, we affirm
the denial of his petition.
Inasmuch as the PCR judge did not conduct an evidentiary
hearing, our review of the factual inferences drawn by the court
from the record is de novo. State v. Blake,
444 N.J. Super. 285,
294 (App. Div.), certif. denied,
226 N.J. 213 (2016). Likewise,
we review de novo the PCR judge's legal conclusions. Ibid.
The State argued, and the PCR judge agreed, that petitioner's
claim was barred under Rule 3:22-5 because the issue of counsel's
failure to request instructions on lesser-included offenses had
already been adjudicated on appeal. Petitioner contends the PCR
issue is different from that which was considered on direct appeal.
We previously considered petitioner's claim on direct appeal
that "the trial court erred in failing to instruct the jury
regarding aggravated manslaughter and reckless manslaughter as
lesser[-]included offenses of purposeful/knowing murder." State
v. Price, No. A-2937-10, State v. Eaford, No. A-5405-10
(consolidated) (App. Div. March 12, 2014) (slip op. at 10). The
facts of the case are set forth in that opinion and we will not
3 A-4061-15T1
repeat them here except as required to address the present issues.
On direct appeal we noted that defense counsel declined the judge's
suggestion that the jury receive instructions on the lesser-
included offenses; we concluded the judge was not duty-bound to
include those offenses in the jury charge because they would have
been inconsistent with petitioner's theory that he was not present
when the victim was shot, citing State v. Chew,
150 N.J. 30, 75
(1997), overruled in part on other grounds by State v. Boretsky,
186 N.J. 271, 283-84 (2006). Eaford, slip op. at 23-24. We were
also unpersuaded that the trial judge's accession to defense
counsel's argument against inclusion of the lesser-included
offenses was clearly capable of producing an unjust result, citing
Rule 2:10-2. Eaford, slip op. at 24.
In determining that petitioner's claim was procedurally
barred, the PCR judge recognized that petitioner was required to
prove prejudice by showing "that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Strickland v. Washington,
466 U.S. 668, 694 (1984). He
grafted our conclusion that the omission of the lesser-included
offenses was incapable of producing an unjust result onto the
prejudice prong, and held petitioner could not show prejudice. He
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ruled that petitioner's claim regarding the lesser-included
offenses instruction "was substantively decided in the Appellate
Division[]."
We agree with petitioner that the analysis of a PCR claim is
different from that required under Rule 2:10-2. We also recognize
the issue on appeal was the averred error by the trial judge who
failed to instruct the jury on lesser-included offenses to the
murder charge; here, petitioner claims his counsel was ineffective
for failing to request that instruction. Although the arguments
have common facts, they are discrete; we will, therefore, consider
the substantive merits of the petition.
To establish a case of ineffective assistance of counsel,
defendant must demonstrate a reasonable likelihood of success
under the two-pronged test established by Strickland,
466 U.S. at
694, and adopted by our Supreme Court in State v. Fritz,
105 N.J.
42, 58 (1987). A defendant must first show that counsel was
deficient or made egregious errors, so serious that counsel was
not functioning effectively as guaranteed by the Sixth Amendment
of the United States Constitution, Strickland,
466 U.S. at 687-
91, and Article I, paragraph 10 of the New Jersey Constitution,
Fritz,
105 N.J. at 58. A defendant must also demonstrate that
there exists "a reasonable probability that, but for counsel's
5 A-4061-15T1
unprofessional errors, the result of the proceeding would have
been different." Strickland,
466 U.S. at 694.
Petitioner argues that his trial counsel failed to comprehend
the law on accomplice liability, pointing to portions of the jury
charge conference when defense counsel argued to the trial judge
against presenting the instructions on lesser-included offenses
to the jury. Contrary to petitioner's argument that defense
counsel's statements evidenced his lack of knowledge about
accomplice liability, they actually showed his knowledge of the
law and the practical implications of presenting the accomplice
theory to the jury.
The State alleged petitioner, who had been involved in a
physical altercation with the victim earlier in the evening,
retrieved a gun, met the co-defendant and had a subsequent
confrontation with the victim. The State presented witness
testimony that during that confrontation, petitioner raised the
gun and pointed it at the victim, then lowered the gun; and that
the co-defendant took the gun from petitioner and shot the victim
multiple times, causing his death.
The defense theory was that petitioner was not present when
the victim was shot. Defense counsel's summation capsulized the
trial proofs he said supported that theory: the numerous
discrepancies in the testimony of the State's witnesses; the
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absence of crime scene evidence – hair, fibers, DNA, fingerprints
– linked to petitioner; that, although one of the State's witnesses
said people left in a Chevy Tahoe, police found nothing in that
vehicle that was linked to petitioner, and they did not dust that
vehicle for fingerprints; that one of the State's witnesses, who
said there was a "small possibility" she might recognize the black
male at the scene if shown a photo, was never shown an array that
included petitioner's photo; and that the State's witness – on
whom counsel said "the entire case against [petitioner] rests" –
who identified petitioner as the man with a gun, admitted on cross-
examination he previously said he could not see the person's face,
and said it was "possible" it could have been petitioner. Notably,
as to that last witness, the assistant prosecutor told the jury
that he "wasn't particularly a strong witness. Obviously, he
didn't want to be here and it was pretty easy for somebody as
skilled as [petitioner's defense counsel] to lead him around by
the nose and put times and estimates in his mouth and get him to
agree to."
During the charge conference, the trial judge suggested that
the lesser-included offenses of aggravated manslaughter and
manslaughter were appropriate charges for the jury because,
although petitioner may not have actually shot the victim, the act
of bringing the gun to the scene might make him "arguably guilty
7 A-4061-15T1
of being an accomplice by being reckless and bring[ing] that
[gun]." When defense counsel expressed that he did not think the
charges were appropriate, the judge told him "tell me how to get
around it." Counsel then queried, "[I]s it the [c]ourt's opinion
. . . that [petitioner] could then be convicted of a lesser[-
]included of aggravated or reckless? I thought he had to have the
same state of mind as to the perpetrator of the original act."
Contrary to petitioner's contention that that comment, as
well as a few others during the same colloquy, manifested defense
counsel's ignorance of the law on accomplice liability and lesser-
included offenses, as the trial judge then realized, counsel was
correct; the law requires an accomplice to have the purpose of
promoting or facilitating the lesser-included offense. Thus, the
judge's original assertion that petitioner could be guilty as an
accomplice for recklessly bringing the gun to the scene was
mistaken.
Defense counsel later explained that, although he would still
argue petitioner was not at the scene, he would still have to
"work . . . in there one way or another" that there was no proof
that petitioner had any intention that the victim would be shot
and killed, notwithstanding that the person alleged to be the
petitioner brought the gun, pointed it at the victim, and then
lowered the gun, before the actual shooter took the gun and
8 A-4061-15T1
murdered the victim. In fact, defense counsel twice argued that
point to the jury during his summation. In essence, he argued the
non-shooter perpetrator lowered the gun and put it in his
waistband; and, therefore, did not share any state of mind with
the shooter, and could not be guilty as an accomplice for any
crime.
We review defense counsel's actions under the familiar
standards synopsized by the Court in State v. Arthur,
184 N.J.
307, 318-19 (2005) (alterations in original):
In determining whether defense counsel's
representation was deficient, "'[j]udicial
scrutiny . . . must be highly deferential,'
and must avoid viewing the performance under
the 'distorting effects of hindsight.'" State
v. Norman,
151 N.J. 5, 37,
697 A.2d 511 (1997)
(quoting Strickland, supra,
466 U.S. at 689,
104 S. Ct. at 2065,
80 L. Ed. 2d at 694).
Because of the inherent difficulties in
evaluating a defense counsel's tactical
decisions from his or her perspective during
trial, "a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
'might be considered sound trial strategy.'"
Strickland, supra,
466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694-95 (quoting Michel
v. Louisiana,
350 U.S. 91, 101,
76 S. Ct. 158,
164,
100 L. Ed. 83, 93 (1955)).
In determining whether defense counsel's
alleged deficient performance prejudiced the
defense, "[i]t is not enough for the defendant
to show that the errors had some conceivable
9 A-4061-15T1
effect on the outcome of the proceedings." Id.
at 693,
104 S. Ct. at 2067,
80 L. Ed. 2d at
697. Rather, defendant bears the burden of
showing that "there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris,
181 N.J. 391, 432,
859 A.2d 364 (2004).
The "all or nothing" approach taken by defense counsel, in
light of the facts of the case, was sound trial strategy. It is
telling that, in the words of the trial judge, "three seasoned"
attorneys – counsel for both defendants and the assistant
prosecutor – agreed they did not want lesser-included offenses to
murder charged to the jury; that such charges were not "supported
by any credible evidence and that such [charges] would have a
tendency to perhaps mislead the jury and lead to perhaps a
compromised verdict not supported by the evidence." Defense
counsel's main tack was to argue petitioner was misidentified as
the non-shooter at the crime scene. He accounted for the
possibility that the jury might find petitioner was the person who
brought the gun used by the shooter, and offered that the non-
shooter, by lowering the gun and putting it away before the shooter
grabbed it and shot the victim, showed he had no intention that
the gun be used or that the victim be shot. That theory – in
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practical application – exonerated petitioner from any culpability
for the homicide.
The assistant prosecutor argued in summation that petitioner
retrieved the gun and met the co-defendant on the street. He
continued:
He doesn't have a permit. He's not allowed
to have it out on the street, but he brings
it out on the street, puts it to a man's head.
There's two crimes he's committed. And he
provided the murder weapon.
. . . I suggest to you that you will be
firmly convinced that [petitioner] was an
accomplice with [the co-defendant-shooter] in
the murder of [the victim].
The State's essentially played to defense counsel's theory.
There was proof petitioner possessed a firearm on the street
without a permit and that he pointed it at the victim; but the
only proof tying him to the murder charge was the State's
allegation that he brought the gun to the scene. Considering the
State's accomplice theory of liability against petitioner, it was
not unreasonable to alternatively argue that there was no proof
petitioner shared the shooter's homicidal state of mind, whether
it was for murder or a lesser-included crime.
The trial judge's observations prove defense counsel's
strategy even more cogent. In considering whether to charge the
lesser-included offenses, he rhetorically asked:
11 A-4061-15T1
How the heck do you get agg[ravated]
man[slaughter] or man[slaughter] with six
shots?
. . . .
. . . How is it in the case? You put on
a [m]edical [e]xaminer and [the victim] had
five holes in his body from point-blank range
with stippling on three-quarters of the holes
and powder on the other remaining holes from
close range.
Defense counsel recognized that evidence established the
shooter's purposeful intent to cause the victim's death and
distanced his client from that evidence, not only by arguing he
wasn't present and was misidentified, but also by arguing the
facts showed he did not share the shooter's intent that the victim
be shot. It was not unreasonable to forego the confusing argument
that petitioner only intended to recklessly cause the victim's
death – either under circumstances manifesting extreme
indifference to human life, or not – especially in light of the
proofs that established he had no intention that the gun be used.
We conclude defense counsel's strategy was sound, and
petitioner has not met his burden of showing that if counsel had
argued for instructions on the lesser-included offenses, the
verdict would have been different. Petitioner has failed to
establish either required prong.
12 A-4061-15T1
We find insufficient merit in petitioner's claim that defense
counsel was ineffective because he never spoke to him about the
lesser-included offenses, and that he was entitled to an
evidentiary hearing, to warrant further discussion. R. 2:11-
3(e)(2). Petitioner has not proffered any support for his claim
that counsel did not discuss the lesser-included issue with him;
his is a bald-faced assertion. An evidentiary hearing should be
held only if a defendant presents "a prima facie claim in support
of [PCR]." R. 3:22-10(b); State v. Preciose,
129 N.J. 451, 462
(1992). In order to establish a prima facie case, a defendant
"must demonstrate the reasonable likelihood of succeeding under
the test set forth in Strickland v. Washington,
466 U.S. 668, 694,
104 S. Ct. 2052, 2068,
80 L. Ed. 2d 674, 698 (1984)." Id. at 463.
Merely raising a claim for [PCR] does not entitle a defendant to
an evidentiary hearing. State v. Cummings,
321 N.J. Super. 154,
170 (App. Div.). A "defendant must allege specific facts and
evidence supporting his allegations," State v. Porter,
216 N.J.
343, 355 (2013), and "do more than make bald assertions that he
was denied the effective assistance of counsel," Cummings,
321 N.J. Super. at 170. Petitions must be "accompanied by an affidavit
or certification by defendant, or by others, setting forth with
particularity the facts that he wished to present." State v.
Jones,
219 N.J. 298, 312 (2014).
13 A-4061-15T1
Petitioner has not established that there was a reasonable
likelihood his claim regarding counsel's failure to request
lesser-included offenses would succeed. And he has made only bald
assertions regarding his claim counsel failed to meet with him to
discuss the lesser-included offenses. Even if counsel did not
meet with petitioner, petitioner has failed to show how he was
prejudiced. Further, petitioner's claim of ineffective assistance
of counsel is not grounded in facts outside the trial record;
thus, he was not entitled to an evidentiary hearing. Preciose,
129 N.J. at 462.
We also find the issues raised in petitioner's pro se brief
to be without sufficient merit to warrant discussion. R. 2:11-
3(e)(2). We agree with the PCR judge's reasons for rejecting
petitioner's pro se claims.
Affirmed.
14 A-4061-15T1
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