STATE OF NEW JERSEY v. RASHEEM WHITE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0390-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHEEM WHITE,
Defendant-Appellant.
____________________________
Submitted October 10, 2018 – Decided November 2, 2018
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 07-11-1402.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order dated April 13, 2017, which denied his
petition for post-conviction relief (PCR). We affirm.
I.
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)
or (2) (count one); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4 (count two); third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree certain persons
not to possess weapons, N.J.S.A. 2C:39-7(b) (count four). Defendant was tried
before a jury.
The evidence presented at trial established that in the early morning hours
of May 18, 2007, Sherby Tyson was shot to death on a street in Paterson. That
night, Tyson had been driving around and drinking with Shaquese Rawl and
Antonio Johnson. They parked the car, and Tyson and Rawl got out while
Johnson slept in the backseat. Shortly after Rawl returned to the car, a man
approached Tyson and an altercation began. The man shot Tyson three times.
Tyson died before medical assistance arrived.
In June 2007, the police interviewed Antwan Seegers, who had been
sitting in a parked van on the street at the time of the shooting. He was shown
a photo array and he identified defendant as the shooter. In November 2009, the
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trial court conducted a hearing to determine whether Seegers's statement should
be admitted in light of indications that his trial testimony would be inconsistent.
At the hearing, Seegers recanted his identification, but the court found that his
prior statement was reliable and admitted it into evidence. Seegers's trial
testimony was consistent with his original statement, but he claimed he could
not identify the shooter.
Rawl also testified at trial and described the shooting. He stated that he
could not identify the shooter, but said the shooter had been wearing a "black
hood" that was "tied all the way tight on [his] face." Ebony Jones testified that
she observed the altercation and shooting from her third-floor apartment
window. She identified defendant as the shooter.
In addition, Tyson's brother Tyrod Mills testified that in 2006, he was
incarcerated with defendant. According to Mills, they became friends, but
defendant did not know that Mills and Tyson were brothers. Mills testified that
in 2007, he read in a newspaper that defendant had been charged with killing his
brother. Mills stated that sometime later, he and defendant were again
incarcerated together. Mills stated that defendant told him he shot Tyson three
times in the back during a robbery attempt.
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The jury found defendant not guilty of murder, as charged in count one,
but guilty of the lesser-included offense of passion/provocation manslaughter,
N.J.S.A. 2C:11-4(b)(2). The jury also found defendant guilty on counts two,
three, and four.
Shortly after the verdict, but before sentencing, the assistant prosecutor
received a one-page police report, which stated that a man named James Felton
murdered Tyson, and that Felton was later murdered in retaliation. The report
was written by a Passaic County detective, and it related information the
detective received from a confidential informant (CI). The State provided a
copy of the report to defense counsel.
Defendant then filed a motion for a new trial, based on an alleged violation
of Brady v. Maryland, 373 U.S. 83 (1963). The judge conducted a hearing and
found that the detective had obtained the information from the CI. Defendant
filed a motion to compel disclosure of the CI's identity. The judge refused to
order disclosure and denied defendant's motion for a new trial.
The trial court sentenced defendant to an aggregate prison term of twenty-
six years, with approximately twenty years and three months of parole
ineligibility. Defendant appealed from the judgment of conviction dated
February 17, 2010. Defendant raised the following arguments:
A-0390-17T4
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POINT ONE
BY FAILING TO CHARGE THE JURY ON SELF-
DEFENSE, THE TRIAL COURT DEPRIVED MR.
WHITE OF DUE PROCESS AND A FAIR TRIAL.
POINT TWO
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR [A] NEW TRIAL
BASED ON A VIOLATION OF BRADY.
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED A MOTION FOR MISTRIAL
BASED ON PROSECUTORIAL MISCONDUCT
DURING SUMMATION WHEN THE STATE DREW
PREJUDICIAL INFERENCES NOT BASED ON
EVIDENCE BY TELLING THE JURY THAT THE
WITNESSES' LIVES WERE ON THE LINE BY
TESTIFYING AGAINST MR. WHITE, THUS
DEPRIVING HIM OF DUE PROCESS AND A FAIR
TRIAL.
POINT FOUR
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING THE STATE TO ELICIT
IRRELEVANT, NON-PROBATIVE, AND
PREJUDICIAL EVIDENCE THAT DEFENDANT
WAS INCARCERATED.
POINT FIVE
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING ANTW[A]N SEEGERS TO TESTIFY IN
PRISON CLOTHES OVER DEFENSE OBJECTION.
POINT SIX
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING THE STATE TO INTRODUCE A
PRIOR CONSISTENT STATEMENT OF ITS OWN
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WITNESS, IMPERMISSIBLY BOLSTERING THE
WITNESS'S CREDIBILITY.
POINT SEVEN
THE STATE DEPRIVED MR. WHITE OF HIS RIGHT
TO A FAIR TRIAL BY INTRODUCING A PRIOR
INCONSISTENT STATEMENT OF ITS OWN
WITNESS WITHOUT SATISFYING THE
REQUIREMENTS OF N.J.R.E. 803(a)(1).
POINT EIGHT
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A MANIFESTLY EXCESSIVE
SENTENCE.
We affirmed the conviction and sentence, but remanded the matter for
further consideration of defendant's motion to compel disclosure of the CI's
identity. State v. White, No. A-3967-09 (App. Div. Mar. 28, 2012) (slip op. at
2). The Supreme Court later denied defendant's petition for certification. State
v. White, 212 N.J. 459 (2012).
On remand, the trial court again refused to order disclosure of the CI's
identify and defendant appealed. We affirmed the court's order. State v. White,
No. A-3100-12 (App. Div. Oct. 15, 2014) (slip op. at 1). Defendant then filed a
petition for certification with the Supreme Court. The Court denied the petition.
State v. White, 221 N.J. 285 (2015).
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II.
On April 5, 2016, defendant filed a pro se PCR petition in the Law
Division, and the trial court appointed PCR counsel for defendant. Defendant
alleged that he was denied the effective assistance of counsel because his trial
attorney: (1) advised him not to testify and failed to do a "run through" of his
testimony to determine if he would be a good witness; (2) did not explore an
alibi defense; (3) failed to secure video surveillance footage of the crime scene;
and (4) failed to object at sentencing to the court's consideration of certain
aggravating factors and present a mitigating factor.
In support of his petition, defendant provided the PCR court with a
certification in which he stated that he was in Philipsburg, Pennsylvania at the
time of the shooting. Defendant claimed his trial attorney told him she did not
want him to testify. He stated that his attorney was not prepared adequately for
trial, and failed to provide him with the necessary information to make an
informed and intelligent decision as to whether to testify.
Defendant's trial attorney provided a certification to the PCR court, in
which she disputed defendant's claims of ineffective assistance. She stated she
had investigated the case, prepared for trial, and met with defendant
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approximately twelve times prior to jury selection. She asserted that she spoke
to defendant in court during every status conference.
In addition, counsel stated that she had visited the crime scene, spoke with
the prosecution witnesses, and submitted follow-up investigation requests. She
stated that she met with the prosecuting attorney to ensure she had complete
discovery. She also said that she spoke with defendant every day as the case
was tried, and discussed with him whether he should testify. According to
counsel, defendant chose not to testify and the trial judge questioned him on the
record about that decision.
Counsel further stated that several months into her representation of
defendant, he indicated for the first time that a certain individual would state she
was with him in Philipsburg, Pennsylvania on the night of the homicide.
Counsel noted, however, that defendant had been incarcerated for assaulting this
individual. Counsel said she investigated defendant's claim but it "did not yield
results" that were "beneficial" to defendant.
Counsel disputed defendant's claim that she was not prepared for trial.
Counsel also noted that after defendant was found guilty, the prosecutor
provided her with information that was relevant to defendant's case, and she
filed a motion for a new trial. Counsel stated that during that proceeding,
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defendant did not raise any of the claims defendant has raised in the PCR
petition.
On March 31, 2017, the PCR court heard oral argument on the petition.
Thereafter, the judge placed a decision on the record, which was memorialized
in a letter opinion. The court found that defendant had not established a prima
facie case of ineffective assistance of counsel, and therefore an evidentiary
hearing was not required on the petition.
The court noted that defendant's "bare assertion" that he was in
Philipsburg, Pennsylvania at the time of the shooting was not sufficient prima
facie evidence of ineffective assistance of counsel. The court also found no
merit in defendant's claim that his attorney was ineffective at sentencing, and
noted that the sentence had been affirmed on appeal.
In addition, the court found that counsel was not deficient in failing to
obtain surveillance footage of the crime scene. The court pointed out that
defendant had not shown that a security camera even existed in the area of the
shooting on the date in question. The court also rejected defendant's claim that
counsel did not conduct an adequate investigation of the matter.
The court filed an order dated April 13, 2017, denying PCR. This appeal
followed.
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III.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
BY EFFECTIVELY INDUCING DEFENDANT NOT
TO TESTIFY; IN THE ALTERNATIVE, THIS
MATTER MUST BE REMANDED FOR THE PCR
COURT TO SPECIFICALLY ADDRESS THIS
CLAIM. (Partially Raised Below).
To establish ineffective assistance of counsel, a defendant in a c riminal
matter must satisfy the two-part test established in Strickland v. Washington,
466 U.S. 668, 687 (1984), and later adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). Under the test, a defendant first must "show that
counsel's performance was deficient." Strickland, 466 U.S. at 687. Defendant
must establish that counsel's performance "fell below an objective standard of
reasonableness" and that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at 687-88.
Defendant also must establish that "the deficient performance prejudiced
the defense." Id. at 687. To establish prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors,
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the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
Here, defendant argues that his trial attorney was deficient because she
did not provide him with adequate advice about whether he should testify. The
record shows that defendant elected not to testify, and in her certification,
defense counsel stated she discussed this decision with defendant during the
trial.
Moreover, defense counsel questioned defendant on the record regarding
his decision.
[DEFENSE COUNSEL]: Thank you. Mr. White, you
and I discussed the fact that you have a right to testify
in your own defense?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: We've spoken about this case
numerous time[s] over more than a year that I've been
representing you?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And we continued to speak
about this case during the trial?
THE DEFENDANT: Yes.
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[DEFENSE COUNSEL]: And you and I have discussed
whether or not you would testify in this case, right?
THE DEFENDANT: Yes
[DEFENSE COUNSEL]: And is it your decision now
based on our conversation not to testify?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And you're doing that freely
and voluntarily?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Is anyone forcing you or am I
forcing you not to testify in this case?
THE DEFENDANT: No.
[DEFENSE COUNSEL]: That's your own choice?
THE DEFENDANT: Yes.
The judge then questioned defendant about his decision not to testify.
THE COURT: Mr. White, this is the charge that I would
read to the jury if you chose to have this read. You do
not have to have this read to the jury but I want you to
listen to what I would read and then discuss it with your
attorney for a moment, okay?
THE DEFENDANT: Yes.
THE COURT: If you decide[] not to testify, which you
have done, and you want the jury to be instructed as to
that, this is what I would say. As you know, Mr. White
elected not to testify at trial. It is his constitutional right
A-0390-17T4
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to remain silent. You must not consider for any purpose
or in any manner in arriving at your verdict the fact that
the defendant did not testify. That fact should not enter
into your deliberations or discussions in any manner at
any time. Mr. White is entitled to have the jury
consider all the evidence presented at trial. He is
presumed innocent whether or not he chooses to testify.
Do you understand the charge?
THE DEFENDANT: Yes.
THE COURT: Do you want to discuss it with your
lawyer for a moment?
[DEFENSE COUNSEL]: Mr. White, having heard that
charge, do you agree with me that the [c]ourt should
read that charge to the jury when it reads all of the
charges to the jury?
THE DEFENDANT: Yeah.
Thus, the record does not support defendant's contention that his trial
attorney did not provide him with adequate advice regarding his decision not to
testify at trial. In addition, even assuming counsel's advice was inadequate,
defendant has not shown that he was prejudiced thereby. Presumably, he would
have testified that he was in Philipsburg, Pennsylvania on the night of the
homicide.
However, defendant did not provide an affidavit or certification from any
individual to corroborate that claim. In her certification, defense counsel noted
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that she had investigated this potential defense, and the investigation did not
produce any evidence that would have been beneficial to defendant. Moreover,
in our opinion on defendant's direct appeal, we noted that the State had presented
strong evidence that defendant was the person who shot and killed Tyson.
Thus, defendant failed to show a reasonable probability that the result of
the proceeding would have been different if he had testified. The record
therefore supports the PCR court's determination that defendant failed to
establish a prima facie case of ineffective assistance of counsel.
Defendant also argues that the PCR court should have conducted an
evidentiary hearing on his petition. We disagree. The PCR court should conduct
an evidentiary hearing on PCR petition if the defendant presents a "prima facie
case in support of [PCR]," the defendant has raised a "material issue[] of
disputed fact that cannot be resolved by reference to the existing record, and [the
court] determin[es] that an evidentiary hearing is necessary to resolve the claims
for relief." R. 3:22-10(b). Because defendant failed to present a prima facie
case for PCR, and the existing record was sufficient to resolve the claims
presented, an evidentiary hearing was not required.
Affirmed.
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