STATE OF NEW JERSEY v. MALIK SHAKUR
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1301-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK SHAKUR, a/k/a
JAMES WALKER, JAMEY
YOUNGBLOOD, JAMES A.
BASHAWN, MALIK SHAKWOR,
BASHAWN WALKER, JAMES A.
WALKER, and MALIK WALKER,
Defendant-Appellant.
__________________________________
Submitted April 9, 2018 – Decided September 28, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. 09-12-3254.
Joseph E. Krakora, Public Defender, attorney for
appellant (Durrell Wachtler Ciccia, Designated
Counsel, on the brief).
Robert D. Laurino, 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.
The opinion of the court was delivered by
O'CONNOR, J.A.D.
Defendant Malik Shakur appeals from an order denying the relief sought
in his petition for post-conviction relief (PCR). For the reasons that follow,
we affirm.
I
In December 2011, a jury convicted defendant of first-degree robbery,
N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:15-1; five counts of second-degree possession of
prescription legend drugs with intent to distribute, N.J.S.A. 2C:35-10.5(a);
seven counts of third-degree possession of prescription legend drugs with
intent to distribute, N.J.S.A. 2C:35-10.5(a); third-degree theft of movable
property, N.J.S.A. 2C:20-3(a); and fourth-degree resisting arrest by engaging
in flight, N.J.S.A. 2C:29-2(a). He was acquitted of four counts of weapons
possession and six counts of possession of prescription legend drugs with
intent to distribute.
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The jury also convicted Shakur's co-defendants, James Waldren and
Benjamin Fulton, of various offenses. 1 Another co-defendant, Orlando Arnold,
pled guilty to certain charges before trial and, as part of his plea agreement,
consented to testify at trial on behalf of the State.2
In February 2012, Shakur was sentenced to a term of life without parole
for the conviction of first-degree armed robbery, pursuant to the Persistent
Offender Accountability Act, N.J.S.A. 2C:43-7.1(a); the convictions for
conspiracy to commit robbery and theft were merged into the armed robbery
conviction for sentencing purposes. He received a concurrent ten-year term for
the convictions of second-degree possession of prescription legend drugs with
intent to distribute, a concurrent five-year term for the convictions of third-
degree possession of prescription legend drugs with intent to distribute, and a
concurrent eighteen-month term for resisting arrest.
1
Waldren was found guilty of second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and fourth-degree resisting arrest by
engaging in flight, N.J.S.A. 2C:29-2(a).
Fulton was found guilty of second-degree eluding a law enforcement
officer, N.J.S.A. 2C:29-2(b).
2
Arnold pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1 and
N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5-2; and two counts of second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b).
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Defendant filed a direct appeal. We affirmed his convictions and
sentence in an unpublished opinion. State v. Shakur, No. A-4672-11 (App.
Div. May 21, 2014). The Supreme Court denied defendant's petition for
certification. State v. Shakur, 220 N.J. 98 (2014).
The evidence underlying defendant's convictions is set forth at length in
our opinion; that which is pertinent to the issues on appeal is as follows.
Eyewitnesses testified two males entered a pharmacy and, within seconds,
donned "ninja" masks, leaving exposed only their eyes and mouth. A third
male, already masked, then entered the store. Two of the men brandished
handguns, yelling, "this is a hold-up!" One went to the cash register, removed
a check and all currency, and took $180 in cash from an employee's pocket.
Another threw bottles of prescription medication into black plastic bags.
After the three men left, the employees called the police. A customer
who entered the store just after the three men left the pharmacy saw the three
men get into a gray Jeep Cherokee and quickly drive off. Police officers
testified they spotted a gray Jeep Cherokee stuck in traffic within a block of
the pharmacy just minutes after getting the report of the robbery. The police
got out of their vehicles and, with guns drawn, approached the Jeep and
ordered the four occupants to "show your hands in the air." The Jeep mounted
a curb, got into a lane clear of traffic and sped off.
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With sirens blaring and lights flashing, police cars chased the Jeep for
several miles. At one point, the Jeep slowed and one of the occupants jumped
out and ran. One of the officers "got a good look" at the occupant who fled
from the car and broadcasted his description to other police units in
surrounding areas. The occupant, later identified as co-defendant Waldren,
was apprehended within an hour.
The police continued to chase the Jeep after Waldren jumped out. After
crashing into two vehicles, the Jeep finally came to rest. One of the three
remaining occupants, later identified as Shakur, ran from the vehicle but was
apprehended a block away by an officer who subsequently identified Shakur in
court. The two other occupants of the Jeep, Arnold and Fulton, were arrested
at the crash site. The police determined Fulton drove the Jeep during the
chase.
A ninja mask was found in Shakur's pocket when he was arrested. In the
Jeep the police found a black plastic bag containing prescription bottles,
affixed to which were labels that bore the pharmacy's name. The various
prescription bottles contained, among other things, Percocet and OxyContin.
Also found in the Jeep was a check made payable to the pharmacy, cash, a
ninja mask, and two handguns located in the center console.
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Consistent with his plea agreement, Arnold testified for the State. He
acknowledged that he, Shakur, Waldren, and Fulton were in a Jeep on the day
of the incident, but claimed to be unaware any of the others planned to commit
a robbery when he entered the Jeep. When he, Waldren, and Shakur got out of
the Jeep, Arnold was told they were going to rob the pharmacy of drugs and
money. Arnold decided to participate and was given a mask. Arnold noted
both Shakur and Waldren had guns.
Arnold testified that he and Shakur went into the pharmacy and then put
on their masks. Thereafter, Waldren entered the store. Once inside, "guns
were being pointed" and "directions were shouted." Arnold grabbed and threw
drugs into a bag. When the three left, Arnold put the bag in the Jeep, and
noticed two guns being placed into the center console. When they were only a
block from the pharmacy, the police tried to obstruct them with their vehicles,
but Fulton managed to maneuver around them. Fulton kept driving, despite
being followed by the police with their sirens blaring. At one point, Waldren
jumped out of the Jeep. Eventually the Jeep crashed and Arnold was pulled out
of the vehicle by the police and arrested.
Fulton testified at trial. At the time of the robbery, he was working as a
gypsy cab driver; specifically, he was driving a gray Jeep Cherokee. He
claimed he had been hired by the co-defendants to drive them roundtrip from
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Newark to West Orange and back. Fulton testified Waldren and Arnold were
in the Jeep when driving to West Orange, but was uncertain whether the third
passenger was Shakur. After getting to the pharmacy, Fulton parked and
waited for his three passengers to return. When they got back into the Jeep,
Arnold pointed a gun to his head and ordered him to start driving. Fulton
claimed he drove under duress until the Jeep was disabled due to the crash.
Because relevant to some of the issues asserted on appeal, we note that a
Wade3 hearing was conducted to determine the admissibility of certain
pharmacy employees' out-of-court identifications of Shakur and Waldren.4
Evidence adduced at the Wade hearing revealed that five pharmacy employees
viewed both defendants in a "one-on-one show-up," which took place in an
"identification room" at a police station the same day as the robbery. Before
the employees viewed these defendants, the employees were told "an arrest has
been made" and that those arrested "may or may not be the individual that
committed the crime. We would like you to take a look at them and if it is
please let us know."
3
United State v. Wade, 388 U.S. 218 (1967).
4
By the time of the Wade hearing, Arnold had pled guilty, rendering moot
the issue of whether the employees' out-of-court identifications of him were
admissible. Fulton never entered the store and so was not observed by the
pharmacy employees.
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The employees were kept separate from each other before and during the
viewing. Each defendant was viewed, one at a time, through a "one-way"
glass; the employee could see a defendant but he could not see the employee.
None of the defendants was handcuffed; although a detective was in the room
when each defendant was viewed, the detective was unarmed. After an
employee viewed a defendant, he was removed and the other brought in. Each
employee gave a statement after viewing all three defendants. A police officer
testified about each employee's comments after viewing Shakur and Waldren.
Every employee indicated Shakur appeared to be one of the perpetrators,
although the degree of certainty expressed by each varied.
At the conclusion of the Wade hearing, citing State v. Herrera,5 187 N.J.
493, 504, (2006), the trial judge determined that although one-on-one show-
ups are inherently suggestive, the eyewitnesses' identifications were
sufficiently reliable to be admissible. As previously noted, on direct appeal,
we affirmed the trial court's findings. We further noted there was ample, if not
overwhelming, evidence to support the jury's verdict against Shakur, as well as
Waldren.
5
The holding in State v. Henderson, 208 N.J. 208 (2011), did not apply to
this matter at the time the Wade hearing was conducted.
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In April 2015, defendant filed his petition for PCR; his counsel
subsequently submitted a brief on his behalf. On February 23, 2016, the PCR
court entered an order denying defendant's request for PCR, setting forth its
reasons in a written opinion. The issues defendant raised before the PCR court
relevant to the issues on appeal and the court's findings were as follows.
Defendant was critical of both trial and appellate counsel. As for trial
counsel, defendant alleged he was ineffective in the following respects. First,
defendant claimed counsel failed to provide or review discovery with him.
The PCR court disposed of the claim by finding defendant had access to
discovery "prior to opening statements."
Second, defendant asserted trial counsel was ineffective because he did
not file a motion to suppress evidence of two guns the police recovered from
the Jeep. Defendant claimed such evidence was the product of a warrantless
search and seizure. The PCR court found, without elaboration, that defendant
was barred from asserting such issue under Rule 3:22-4(a), determining such
issue could have been asserted on direct appeal. The court also observed
defendant did not elucidate how the outcome would have been different had
evidence of the guns been suppressed.
Third, defendant alleged trial counsel should have requested a Wade
hearing to challenge the admissibility of Fulton's out-of-court identification of
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defendant. The PCR court found such argument "meritless because [Fulton]
was personally familiar with [defendant]."
Fourth, defendant contended that, during the Wade hearing, trial counsel
failed to argue that some of the witnesses who viewed defendant at the show-
up saw him in handcuffs before defendant entered the identification room. The
PCR court found defendant filed but lost a Wade motion "with respect to
seeing him handcuffed."
Fifth, defendant maintained trial counsel was ineffective for failing to
file a motion to sever his trial from Fulton's, because Fulton made an out-of-
court identification of Shakur. The PCR court found defendant was barred
from asserting this claim pursuant to Rule 3:22-4(a), because it could have
been raised on direct appeal.
Sixth, defendant claimed trial counsel should have requested the court to
instruct the jury that a photograph taken of him after his arrest, which was
admitted into evidence, was not a "mug shot." The PCR court found defendant
could have challenged the court's failure to properly instruct the jury on direct
appeal.
Defendant also maintained appellate counsel was ineffective. He
contended appellate counsel was ineffective because he did not assert the trial
court erred by failing to: (1) issue an adverse inference charge given one of
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the investigating police officers destroyed his notes of the out-of-court
identifications; (2) instruct the jury on accomplice liability for the lesser-
included offense of theft; and (3) charge the jury with respect to the
photograph the police took of Shakur following his arrest. The PCR court
disposed of the three allegations against appellate counsel by summarily
stating all were "meritless."
II
On appeal, defendant reprises the arguments he asserted before the PCR
court and added new ones, as noted below. We affirm the PCR court's
determinations. In some instances, our reasons are different from those the
PCR court found to justify denying the relief defendant sought. Nonetheless,
an order will be affirmed on appeal if warranted, even if the decision to affirm
is on grounds different from those relied on by the trial court. See Bryant v.
City of Atl. City, 309 N.J. Super. 596, 629 (App. Div. 1998).
To establish an ineffective assistance of counsel claim, a defendant must
satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J.
42, 58 (1987). First, a defendant must show "that counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed . . . by the
Sixth Amendment." Id. at 52 (quoting Strickland, 466 U.S. at 687).
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To satisfy prong one, [a defendant] ha[s] to overcome
a strong presumption that counsel exercised
reasonable professional judgment and sound trial
strategy in fulfilling his responsibilities. [I]f counsel
makes a thorough investigation of the law and facts
and considers all likely options, counsel's trial strategy
is virtually unchallengeable. Mere dissatisfaction with
a counsel's exercise of judgment is insufficient to
warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (third
alteration in original) (citations omitted).]
Second, a defendant must prove he suffered prejudice due to counsel's
deficient performance. Strickland, 466 U.S. at 687. A defendant must show
by a "reasonable probability" that the deficient performance affected the
outcome. Fritz, 105 N.J. at 58. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J.
560, 583 (2015) (quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52).
"If [a] defendant establishes one prong of the Strickland-Fritz standard, but not
the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280
(2012).
We apply the same standard to a defendant's claim of ineffective
assistance by appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513
(App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App.
Div. 1987)). "To remedy the prejudice to [a] defendant resulting from the
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ineffective assistance he received in his direct appeal, we . . . consider[] . . .
the issues presented . . . from a denial of post[-]conviction relief as if they
were being presented in a direct appeal." State v. Guzman, 313 N.J. Super.
363, 375 (App. Div. 1998) (citing Mayo v. Henderson, 13 F.3d 528, 537 (2d
Cir. 1994)). However, "a defendant does not have a constitutional right to
have appellate counsel raise every non-frivolous issue that defendant requests
on appeal." Gaither, 396 N.J. Super. at 515. "A brief that raises every
colorable issue runs the risk of burying good arguments . . . in a verbal mound
made up of strong and weak contentions." Jones v. Barnes, 463 U.S. 745, 753
(1983).
We first address defendant's claims trial counsel was ineffective.
Defendant asserts trial counsel failed to "investigate the whole case," including
interviewing some of the State's witnesses, and failed to provide or review
discovery with him. As for the latter issue, our review of the record reveals
that, the day before the trial began, defendant told the court he had just
received discovery from his attorney that day. Trial counsel admitted certain
discovery had not been delivered to defendant until that day, but he also
represented he had previously provided discovery to defendant.
Regardless, significantly, defendant does not state how counsel's failure
to review or turn over discovery to him affected the outcome. In the same
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vein, defendant does not does not identify the evidence counsel would have
unearthed had he engaged in the investigation, including the interviewing of
witnesses, defendant claims counsel failed to undertake. Thus, even if
defendant met the first prong of the Strickland standard, there is no evidence
he met the second.
The PCR court rejected defendant's claim trial counsel was ineffective
because he failed to file a motion to suppress evidence of the guns recovered
by the police just after the Jeep crashed. We agree with that finding.
Defendant was acquitted of all weapons possession charges, making the fact
counsel did not file a motion to suppress such evidence irrelevant.
Defendant complains counsel was ineffective because he did not request
a Wade hearing to challenge the admissibility of Fulton's out-of-court
identification of defendant. We reject this contention because, when Fulton
testified at trial, he disavowed having any knowledge of defendant, and stated
he could not say defendant was in his Jeep the day of the incident. Defendant
did not cite to any portion of the record where another witness testified Fulton
had identified defendant as one of the perpetrators. Further, even if there was
evidence Fulton had identified Shakur as one of the perpetrators, Shakur has
not shown how the outcome would have been different if such evidence had
not been admitted. Defendant claims that, during the Wade hearing, trial
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counsel failed to assert the eyewitnesses who viewed defendant at the show-up
could have seen him in handcuffs before he entered the identification room.
However, the transcript of the hearing reveals counsel cross-examined the
State's witness on this very issue, questioning him whether any of the
eyewitnesses could have seen any of the defendants in handcuffs either before
or during the eyewitnesses' view of them in the identification room. The
State's witness claimed it was not possible any eyewitness saw any defendant
in handcuffs. In an effort to challenge the police officer's credibility, Shakur's
attorney questioned the witness about the fact his police report did not mention
defendants were not handcuffed while being viewed by the eyewitnesses.
Therefore, we reject defendant's claim trial counsel failed to raise this
particular issue during the Wade hearing.
Defendant argues trial counsel failed to file a motion to sever his trial
from Fulton's. Defendant contends counsel should have done so because there
was evidence Fulton identified him out-of-court. Defendant did not specify
what that evidence was and, as we previously noted, at trial Fulton testified he
did not know Shakur.
We note Shakur's counsel joined in a motion made by co-defendant
Waldren to sever the trial from Fulton's, because Fulton was going to claim he
was kidnapped by the defendant who forced him to drive the Jeep at gunpoint
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after the robbery. Although Shakur and Waldren denied they forced Fulton to
drive the Jeep, they contended Fulton's testimony was going to implicate them
as accomplices. To avoid forcing their clients to testify in defense of Fulton's
claim, counsel for Shakur and Waldren argued Fulton's trial had to be severed
from theirs. The court denied the motion, finding Fulton's anticipated
testimony insufficiently prejudicial to warrant severance. That ruling was not
challenged on appeal.
Defendant's contends trial counsel was ineffective because he did not
request the trial court to instruct the jury that the post-arrest photograph taken
of him was not a "mug shot." Defendant does not specify how such instruction
would have affected the outcome, not to mention there was nothing prejudicial
about the fact the police photographed defendant after his arrest . Therefore,
we reject this contention because defendant cannot show counsel's omission
meets the second Strickland prong.
Defendant asserts, for the first time on appeal, that trial counsel failed to
ask for a cross-racial identification charge. See State v. Cromedy, 158 N.J.
112 (1999). A cross-racial identification instruction must be given when
"identification is a critical issue in a case, and an eyewitness' cross-racial
identification is not corroborated by other evidence which gives it independent
reliability." Id. at 132. On direct appeal, Shakur argued the court erred by
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failing to give this charge. We rejected the argument, because the
eyewitnesses' cross-racial identifications were corroborated by other evidence,
such as Arnold's, Fulton's, and the police officer's testimony, the property
found in the Jeep that belonged to the pharmacy, and the ninja mask found in
the Jeep and in Shakur's pocket when he was arrested. Although we analyzed
the trial court's alleged omission under the plain error rule, see Rule 2:10-2,
nevertheless, the strength of the evidence against Shakur is such that defendant
cannot show trial counsel's alleged ineffectiveness meets the second Strickland
prong.
Addressing defendant's contentions against appellate counsel, we reject
the argument counsel was ineffective because he did not argue the trial court
should have given an adverse inference charge pertaining to a police officer
who destroyed his notes of the eyewitnesses' identifications. First, we
question whether such a charge would have had any impact on the outcome.
Second, even if the victims' identifications of defendant had been
neutralized by an adverse inference charge, there was still considerable
evidence implicating defendant. Not only was there co-defendant Arnold's
testimony, who provided considerable evidence defendant committed the
crimes with which he was convicted, but also there was damning
circumstantial evidence. As previously noted, the police found in the Jeep
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prescription medication in bottles that bore pharmacy's name, the check that
was stolen from the pharmacy's cash register, and a ninja mask. In addition, a
ninja mask was in Shakur's pocket when he was arrested.
Defendant contends appellate counsel was ineffective because he did not
challenge the court's charge on accomplice liability. Defendant argues that
although the trial court instructed the jury that a defendant can be found guilty
of first- or second-degree robbery as an accomplice, the court failed to charge
that a defendant can also be found guilty of the lesser-included offense of theft
as an accomplice. Defendant also contended the use of the words "and/or" in
the jury instruction on accomplice liability was confusing and could have
misled the jury. After reviewing the entire charge, we disagree with both
contentions. Further comment on these issues in a written opinion is
unnecessary. See R. 2:11-3(e)(2).
Defendant maintains appellate counsel failed to assert the trial court
erred by not giving the jury an instruction about the photograph the police took
of him following his arrest. For reasons previously stated, even if the trial
court was required to provide an instruction, its failure to do so could not have
affected the outcome of the verdict against Shakur.
Because we are satisfied from our review of the record defendant failed
to make a prima facie showing of ineffectiveness of either trial or appellate
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counsel within the Strickland-Fritz test, the PCR court correctly concluded an
evidentiary hearing was not warranted, see State v. Preciose, 129 N.J. 452,
462-63 (1992), and that defendant was not entitled to the post-conviction relief
he sought.
Affirmed.
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