STATE OF NEW JERSEY v. JAMAAL A. SHOCKLEY
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1058-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAAL A. SHOCKLEY,
Defendant-Appellant.
__________________________
Submitted March 1, 2018 – Decided March 20, 2018
Before Judges Simonelli and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Indictment
No. 11-03-0161.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jennifer E. Kmieciak, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Jamaal A. Shockley appeals from the August 23, 2016
Law Division order, which denied his petition for post-conviction
relief without an evidentiary hearing. We affirm.
We need not recite in detail the factual background of this
matter and incorporate herein the facts set forth in State v.
Shockley, No. A-1063-12 (App. Div. Aug. 13, 2014) (slip op. at 3-
6. The following facts are pertinent to our review.
A grand jury indicted defendant for third-degree possession
of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1)
(count one); third-degree possession of a CDS with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) (count two); and second-degree
eluding a law enforcement officer,
N.J.S.A. 2C:29-2(b) (count
three). Id. at 4. The eluding charge stemmed from defendant
eluding police while riding a dirt bike after
he ignored their signal to stop. Instead of
pulling over, defendant rode away from the
police at a high rate of speed. While doing
so, he failed to heed stop signs on at least
fourteen occasions. Eventually, the pursuit
ended when defendant fell off his bike while
attempting to turn. Even then, defendant
continued to avoid his apprehension by running
away from police. It was not until one of the
officers tackled defendant that he was
apprehended and arrested.
[Id. at 4-5.]
2 A-1058-16T1
Defendant's person and clothing were searched prior to his
transport to the county jail, and no contraband, including CDS,
was found. Id. at 5. "Later, after defendant's clothing had been
removed from him and he was incarcerated, [Corrections Officer
Robert Brooks] discovered fourteen 'bags of a rock-like substance
in a purple Crown Royal Bag' in defendant's sweatshirt's right
pocket," which tested positive for cocaine. Id. at 6. "Brooks
contacted the police[,] who ultimately charged defendant with CDS
offenses." Ibid.
Defendant's first trial ended in a mistrial. At the second
trial, Brooks testified he eventually told defendant what he found
in defendant's clothes. When the prosecutor asked Brooks, "Did
[defendant] say anything?[,]" Brooks testified, "No, sir."
On retrial, defendant was convicted on all counts and
sentenced to an eight-year term of imprisonment with a four-year
period of parole ineligibility. Defendant appealed his CDS
convictions and sentence, but not the eluding conviction. We
reversed and remanded for a new trial as to the CDS convictions
and for a recalculation of defendant's jail credits. Id. at 12.
We found Brooks' testimony about defendant's silence violated
defendant's constitutional right to remain silent. Id. at 3, 11.
On remand, the State dismissed the CDS counts.
3 A-1058-16T1
Defendant filed a PCR petition, arguing that trial counsel
rendered ineffective assistance by failing to adequately cross-
examine Police Officer Demetrius Brittingham about whether and
when the siren on his patrol car was activated during the pursuit.
At the first trial, Brittingham testified that the overhead lights
on his patrol car were on, but the siren was not on when he began
to make a stop of defendant's dirt bike. At the second trial,
Brittingham testified on direct that the siren was activated when
he and Officer John Colon attempted to stop the dirt bike. On
cross-examination, Brittingham testified as follows:
Q. Now, do you remember how far down the
street you were when you first turned on your
overheads?
A. No.
Q. And isn't it true that you didn't turn
your siren on right away?
A. Not -- I'm not sure. We turned the siren
on. I don't know if it was right away or when
we turned but the siren was on.
Colon testified on cross-examination as follows:
Q. Okay. At the time you made contact with
your supervisor, had you already turned on
your sirens?
A. Correct.
Q. Did you make a report?
A. I did.
4 A-1058-16T1
Q. And what's the purpose of writing a
report?
A. For court purposes.
Q. And you also write the report rather
contemporaneous or close to the time that the
event happens. Is that correct?
A. Correct.
Q. And that's certainly so you remember it
better or it's fresher in your mind? Is that
correct?
A. Yes.
Q. And you're indicating that you turned on
the siren the same time you turned on your
light. Isn't it true that you didn't turn on
your siren until after you had already
spoke[n] with your supervisor, so there was a
gap?
A. It's a possibility. I don't know.
Q. Let me show you your report and ask you,
first of all at this point, just to identify
this, if you could, as to if what it purports
to be.
A. This is the report of the incident that
occurred.
Q. Okay. And you'll turn to page two of the
report and just read the paragraph of -- just
to yourself and see if it refreshes your
recollection as to when you first turned on
your siren.
A. Okay.
Q. Does it refresh your recollection?
A. Yes.
5 A-1058-16T1
Q. Okay. And was there a gap between the
time you turned your lights on and when you
turned the siren on?
A. I turned the siren on after I contacted
the supervisor, yes.
During the direct examination of Corporal John Sieber, who
was driving a separate patrol car, the State played dash-camera
footage of the pursuit. The trial transcript reads as follows:
(Whereupon [the video] was played for the
Court and jury at this time, commencing at
3:14:35 p.m., with the witness narrating
during the video playing, as follows)
THE WITNESS: I am on East Broadway,
stationary, or going to be stationary, getting
ready to do -- there's the sergeant that's
hanging up the street signs. I'm facing
eastbound, which is facing like the Sunoco or
the Mc Donald's.
Heading westbound there's the (inaudible
– sirens on video drowning out the witness
speaking). Turning left onto Akin Street
. . . .
[(Emphasis added).]
Sieber also described his pursuit of defendant, stating his patrol
car's lights and siren were activated during the chase, and he
chased defendant for at least twelve blocks. The video confirmed
his siren was activated.
Defendant asserted that the inconsistencies in Brittingham's
testimony at the second trial and the testimony of Colon and Sieber
called each officer's credibility into question. Therefore, trial
6 A-1058-16T1
counsel should have more effectively cross-examined Brittingham
on the subject.
In a comprehensive written opinion, Judge Linda L. Lawhun
found that trial counsel cross-examined Brittingham about when the
siren was activated on his patrol car and Brittingham testified
he was "not sure." The judge determined defendant failed to show
counsel was deficient in choosing "not to further question
Brittingham on th[e] subject[.]" The judge also determined the
jury heard evidence that the siren in Sieber's patrol car was
activated during the pursuit, and thus, defendant failed to show
that, but for counsel's alleged deficiency to elicit other
testimony from Brittingham about the siren, the outcome of the
trial would have been different.
Defendant also argued trial counsel was ineffective for
failing to effectively cross-examine Brittingham about the
circumstances that led to the pursuit. Defendant asserted "that
Brittingham's testimony at the second trial [about] why he
effectuated the motor vehicle stop differed from his testimony at
the first trial," and trial counsel was deficient in failing to
cross-examine Brittingham on the inconsistencies in his testimony.
At the first trial, Brittingham testified that "someone came
by on a dirt bike, all black clothing, mask, no light on the bike"
7 A-1058-16T1
and the lack of a headlight was why he began pursuing the dirt
bike. On cross-examination, he testified as follows:
Q. You said you find the -- you saw him and
then you started following him, correct?
A. Well, he cut in front of us. Actually,
we almost hit him, because he cut in front of
us to make a left-hand turn onto Grant Street.
Q. This . . . bike didn't have any lights?
A. No lights.
At the second trial, Brittingham testified that prior to the
pursuit, he and Colon were on patrol on Grant Street and made a
right-hand turn onto Johnson Street when "[a] subject on a little
dirt bike, a black ski mask, just was coming towards us on Johnson
Street. Cut in front of the vehicle, made a turn onto Grant Street
and kept going." At that point, he radioed for backup and
attempted to make a motor vehicle stop. On cross-examination, he
testified about what drew his attention to the dirt bike as
follows:
Q. -- on the night in question, the first
thing that called your attention to this
motorcycle operation was the operation of the
motorcycle itself. Is that correct?
A. Right.
Q. And I think that you indicated that it
made a turn and almost came in contact with a
vehicle?
A. Yes.
8 A-1058-16T1
Q. In your report, does it actually indicate
that it was your patrol vehicle?
A. Yes.
Judge Lawhun found Brittingham's testimony at both trials was
nearly identical, as Brittinghan testified both times that the
dirt bike was coming toward the officer's vehicle and made a turn
onto Grant Street. The judge concluded that "[w]hile the phrasing
was not identical, the [] differences were de minimus."
Lastly, defendant argued appellate counsel rendered
ineffective assistance by failing to argue that Brooks' testimony
regarding his post-arrest silence, which resulted in the vacatur
of the CDS convictions, also tainted his eluding conviction. Judge
Lawhun found "Brooks' testimony only related to the drugs found
in defendant's clothing, and Brooks made no mention of
[defendant's] flight on the dirt bike[.]". The judge determined
that, in view of the State's evidence on the eluding charge, which
included the video recording of the pursuit, it was unlikely
Brooks' testimony altered or affected the jury's consideration of
the eluding charge. The judge concluded defendant failed to
establish a reasonable probability that, had appellate counsel
raised the argument on appeal, it would have been successful.
This appeal followed. On appeal, defendant raises the
following contention:
9 A-1058-16T1
POINT ONE: THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S [PETITION] FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING DEFENDANT AN
EVIDENTIARY HEARING.
A. Ineffective Assistance of Trial Counsel.
B. Ineffective Assistance of Appellate
Counsel.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings,
321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
grant evidentiary hearings and make a determination on the merits
only if the defendant has presented a prima facie claim of
ineffective assistance, material issues of disputed facts lie
outside the record, and resolution of the issues necessitates a
hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
To establish a prima facie claim of ineffective assistance
of counsel, the
defendant must satisfy two prongs. First, he
must demonstrate that counsel made errors "so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment." An attorney's
representation is deficient when it "[falls]
below an objective standard of
reasonableness."
10 A-1058-16T1
Second, a defendant "must show that the
deficient performance prejudiced the
defense." A defendant will be prejudiced when
counsel's errors are sufficiently serious to
deny him a "fair trial." The prejudice
standard is met if there is "a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." A
"reasonable probability" simply means a
"probability sufficient to undermine
confidence in the outcome" of the proceeding.
[State v. O'Neil,
219 N.J. 598, 611 (2014)
(quoting Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984).]
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance."
Cummings,
321 N.J. Super. at 170. The defendant must establish,
by a preponderance of the credible evidence, that he is entitled
to the required relief. State v. Nash,
212 N.J. 518, 541 (2013).
Not pressing a witness on minor inconsistencies in his or her
testimony does not push counsel's "performance below an objective
standard of reasonableness." State v. Harris,
181 N.J. 391, 451
(2004) (citing Strickland,
466 U.S. at 687). In addition, "[t]he
failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel." State v. Worlock,
117 N.J.
596, 625 (1990).
11 A-1058-16T1
We have considered defendant's arguments in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge Lawhun expressed in her written opinion. The judge correctly
found defendant failed to establish a prima facie case of
ineffective assistance of trial and appellate counsel to warrant
an evidentiary hearing.
Affirmed.
12 A-1058-16T1
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