STATEOF NEW JERSEY v. ANDRE SCOTT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2291-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDRE SCOTT,

     Defendant-Appellant.
____________________________

              Submitted January 30, 2018 – Decided February 21, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 09-05-0432.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Janet A. Allegro, Designated
              Counsel, on the briefs).

              Scott   A.    Coffina,   Burlington  County
              Prosecutor, attorney for respondent (Nicole
              Handy, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Andre Scott appeals from an October 3, 2016 order

of the Law Division denying his petition for post-conviction relief
(PCR) without an evidentiary hearing.           Defendant contends that his

trial counsel was ineffective for failing to: (1) request a Rule

104 hearing on certain evidence submitted by the State; (2)

properly investigate and interview witnesses; and (3) request a

cooperating witness jury instruction.           We disagree and affirm.

     Defendant was convicted of first-degree murder, 
N.J.S.A.

2C:11-3(a)(1) and 
N.J.S.A. 2C:11-3(a)(2), and sentenced to thirty

years'   imprisonment    with     no   parole    eligibility.       Defendant

appealed his conviction, and we affirmed.           State v. Scott, No. A-

6169-10 (App. Div. Aug. 21, 2014).               The Supreme Court denied

defendant's petition for certification.           State v. Scott, 
223 N.J.
 282 (2015).

     The    following   facts    are   relevant    to   the   disposition      of

defendant's appeal.     On November 2, 2008, defendant was recording

music at a studio in Burlington City with Roy Davis and Jeffrey

Douglas.     After leaving the studio, defendant and Davis got into

a fight.      Davis threatened defendant with a glass bottle.                  In

response, defendant took out a pocket knife and stabbed Davis four

times.     Davis died from those injuries.

     Douglas spoke to police after the incident.                   Initially,

Douglas told the police that defendant and Davis were attacked by

strangers.      The   police    disbelieved     Douglas's     account   of   the



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incident. After consulting with an attorney, Douglas gave a second

account to the police stating it was defendant who stabbed Davis.

     During the trial, defendant and Douglas testified.   Defendant

testified that he acted in self-defense.    He stated Davis swung a

bottle at him and, in response, he stabbed Davis.     According to

defendant, Davis hit him in the head with the bottle and defendant

stabbed Davis a second time.   Defendant testified he backed away,

but Davis again hit him in the head with the bottle.      Defendant

then explained Davis "hunched over" him and defendant stabbed

Davis two more times.    Thereafter, Davis collapsed.     Defendant

testified that after an unsuccessful attempt to rouse Davis, he

fled the scene and disposed of the knife.

     Douglas testified that defendant and Davis started arguing

and he told them to stop.   He claimed Davis lowered the bottle to

his side and looked at Douglas.   According to Douglas, while Davis

was looking at him, defendant stabbed Davis five times.    Contrary

to defendant's testimony, Douglas stated Davis did not fight back

after the first stab, yet defendant continued his attack on Davis.

Douglas explained that he drove off after the stabbing, but came

back and told someone to call an ambulance.

     Douglas's trial testimony differed from his second statement

to the police.   However, Douglas's statement to the police was

consistent with defendant's trial testimony insofar as defendant

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and Davis fought, and Davis threatened defendant first.             Defense

counsel cross-examined Douglas at length about the discrepancies

between his trial testimony and his statement to the police.

       Between the time Douglas gave his statement to the police and

the trial, Douglas was charged with distributing a controlled

substance in a school zone.           Those charges were pending when

Douglas   testified   in    this   matter.      During   cross-examination,

Douglas admitted he sought leniency in his drug case by testifying

for the State in this case.

       During the trial, the State advised defense counsel and the

trial judge that it intended to introduce as evidence a knife

found    in   defendant's   car.      Defense    counsel    challenged   the

admissibility of the knife and told the judge, "we might want to

have at least some kind of a hearing on that." The judge responded

that he did not believe a hearing was required "as opposed to just

having an argument as to what we should do."               Defense counsel

agreed to legal argument to resolve this evidentiary issue.

       Outside the presence of the jury, the judge heard legal

argument regarding admissibility of the knife found in defendant's

car.    Defense counsel argued there was no DNA evidence on the

knife and no testimony from the medical examiner opining the knife

could have been the murder weapon.        Without such evidence, defense

counsel maintained there was no basis to admit the knife.                The

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State responded that the knife found in defendant's car matched

Douglas's description of the murder weapon and counsel's arguments

went    to   the   weight   of    the       evidence   rather     than    to   its

admissibility.       The judge ruled the knife would be admitted into

evidence.

       At the conclusion of the trial, the jury found defendant

guilty of first-degree murder, and the judge sentenced him to

thirty years in prison.

       After direct appeals from his conviction were exhausted,

defendant filed his PCR petition. The PCR judge held oral argument

on defendant's petition, and denied the application without an

evidentiary hearing.

       The PCR judge rejected defendant's contention that his trial

counsel was ineffective because counsel failed to request a Rule

104 hearing regarding the admissibility of the knife found in

defendant's car. To the contrary, the PCR judge noted that defense

counsel requested a hearing, but agreed with the trial judge's

suggestion to conduct argument on the matter outside the presence

of the jury.         The PCR judge also found defendant failed to

demonstrate    any    prejudice    because      his    attorney    made    strong

arguments against admission of the knife, which the trial judge

ultimately rejected.



                                        5                                 A-2291-16T4
     On defendant's claim that his trial counsel was ineffective

because he failed to interview relevant witnesses, the PCR judge

deemed the argument unavailing. Regarding the failure to interview

Douglas prior to trial, the PCR judge noted defendant's trial

counsel extensively cross-examined Douglas on the inconsistencies

between his trial testimony and his statement to the police.

Additionally, the PCR judge found that had a pretrial interview

of Douglas been conducted by defendant's attorney, it was unlikely

that Douglas "would have been more forthcoming" with details

concerning the incident than he was during his interview with the

assistant prosecutor.

     Similarly,    on    defendant's       claim   that   his    trial   attorney

failed to interview his mother, the PCR judge found defendant

never told the police he was on the phone with his mother during

or after the stabbing.         In addition, the PCR judge remarked

defendant failed to present a certification or affidavit from his

mother   stating   the    exonerating        information        she   would   have

provided.

     On the failure of defendant's trial counsel to request a

cooperating witness charge, the PCR judge ruled that the jury was

instructed multiple times to question Douglas's credibility based

on his inconsistent statements, his criminal record, and his

pending drug charges.       As a whole, the PCR judge determined the

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jury instructions regarding the jury's evaluation of Douglas's

testimony were proper.

    On appeal, defendant argues:

    POINT I

         THE COURT ERRED IN DENYING DEFENDANT'S
         PETITION FOR POST-CONVICTION RELIEF WITHOUT
         AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY
         ADDRESS HIS CONTENTION THAT HE FAILED TO
         RECEIVE EFFECTIVE LEGAL REPRESENTATION.

    POINT II

         TRIAL COUNSEL'S FAILURE TO REQUEST A HEARING
         PURSUANT TO N.J.R.E. 104 REGARDING THE
         ADMISSIBILITY OF THE KNIFE RECOVERED FROM MR.
         SCOTT'S   VEHICLE   CONSTITUTED   INEFFECTIVE
         ASSISTANCE OF TRIAL COUNSEL.

    POINT III

         TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
         INTERVIEW RELEVANT WITNESSES PRIOR TO TRIAL.

    POINT IV

         MR. SCOTT WAS DENIED EFFECTIVE ASSISTANCE OF
         COUNSEL DUE TO DEFENSE COUNSEL'S FAILURE TO
         REQUEST A COOPERATING WITNESS CHARGE REGARDING
         MR. DOUGLAS'S TESTIMONY.

    We "will uphold [a] PCR court's findings that are supported

by sufficient credible evidence in the record."          State v. Nash,


212 N.J. 518, 540 (2013).           "[W]e review under the abuse of

discretion   standard   [a]   PCR   court's   determination   to   proceed

without an evidentiary hearing."         State v. Brewster, 
429 N.J.

Super. 387, 401 (App. Div. 2013).        When a defendant challenges a

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PCR judge's denial of a petition without an evidentiary hearing,

"the question before [the] [c]ourt is whether defendant has alleged

any facts that, when viewed in the light most favorable to him,

are sufficient to demonstrate a reasonable likelihood of success

on his PCR claim."     State v. Jones, 
219 N.J. 298, 311 (2014).

     To establish a prima facie claim of ineffective assistance

of counsel, a convicted defendant must satisfy the two-part test

enunciated in Strickland by demonstrating that: (1) counsel's

performance    was   deficient,   and   (2)   the   deficient   performance

actually   prejudiced    the   accused's      defense.     Strickland      v.

Washington, 
466 U.S. 668, 687 (1984).          See also State v. Fritz,


105 N.J. 42, 58 (1987) (adopting the Strickland test in New

Jersey).

     In reviewing ineffective assistance claims, courts apply a

strong presumption that a defendant's trial counsel "rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment."            Strickland, 
466 U.S.  at 690. "[C]omplaints 'merely of matters of trial strategy'

will not serve to ground a constitutional claim of inadequacy[.]"

Fritz, 
105 N.J. at 54 (quoting State v. Williams, 
39 N.J. 471, 489

(1963), overruled on other grounds by State v. Czachor, 
82 N.J.
 392 (1980)).     To establish a prima facie claim of ineffective

assistance of counsel, a defendant must demonstrate a reasonable

                                    8                               A-2291-16T4
likelihood of succeeding under the Strickland/Fritz test.              See

State v. Preciose, 
129 N.J. 451, 463 (1992).          To demonstrate the

likelihood   of   succeeding   under    the   Strickland/Fritz   test,    a

defendant "must do more than make bald assertions[,] . . . [and]

must allege facts sufficient to demonstrate counsel's alleged

substandard performance."      State v. Cummings, 
321 N.J. Super. 154,

170 (App. Div. 1999).

     We reject defendant's arguments on appeal asserting his trial

counsel was ineffective.

     First, contrary to defendant's argument, his trial counsel

requested a Rule 104 hearing on the admissibility of the knife.

Instead of a hearing, the trial judge allowed counsel to present

legal arguments addressing the issue.         The knife was admitted into

evidence over defense counsel's objection.          Defendant's attorney

then aggressively cross-examined the State's witness as to the

lack of DNA and fingerprint evidence connecting the knife to the

stabbing.    Having reviewed the record, we find that defense

counsel's actions did not fall below the requisite standard to

satisfy the Strickland/Fritz test.

     Nor do we find that defendant made the requisite showing to

prevail on his ineffective assistance claim based on his trial

attorney's failure to interview Douglas and defendant's mother.

"[C]ounsel has a duty to make reasonable investigations or to make

                                    9                             A-2291-16T4
a   reasonable    decision     that    makes    particular     investigations

unnecessary.     In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness

in all the circumstances, applying a heavy measure of deference

to counsel's judgments."       Strickland, 
466 U.S.  at 691.           "[W]hen a

defendant has given counsel reason to believe that pursuing certain

investigations    would   be   fruitless       or   even   harmful,   counsel's

failure to pursue those investigations may not later be challenged

as unreasonable."      Strickland, 
466 U.S.  at 691.

     In light of the record, we agree with the PCR judge that it

was not unreasonable for defense counsel to decline to interview

Douglas.   Douglas's second statement to the police was favorable

to defendant and, thus, we cannot presume that trial counsel should

have conducted a pretrial interview to discredit Douglas.                    See

Strickland, 
466 U.S.  at 694.           Additionally, defense counsel had

the benefit of an overnight recess to prepare for his cross-

examination of Douglas and explore the inconsistencies between

Douglas's statement to the police and his trial testimony.               Having

reviewed defense counsel's cross-examination of Douglas, we agree

with the PCR judge that defense counsel diligently questioned

Douglas on the inconsistencies, and his failure to conduct a

pretrial   interview    of   Douglas    did    not   constitute   ineffective

assistance.

                                      10                                A-2291-16T4
      We also reject defendant's ineffective assistance claim based

upon his counsel's failure to interview defendant's mother.                    The

PCR judge correctly noted that defendant did not provide an

affidavit or other evidence as to the scope of her testimony.

Moreover, defendant does not allege that he was elsewhere at the

time of the stabbing, or that his mother would have provided

testimony contradicting Douglas's version of events.

      Nor do we find the failure of defendant's trial attorney to

request      a    cooperating    witness    charge    constituted   ineffective

assistance of counsel.          "Appropriate and proper charges to a jury

are essential for a fair trial."            State v. Green, 
86 N.J. 281, 287

(1981).      "In determining the propriety of a jury charge, we will

examine the charge as a whole . . . ."               State v. Martini, 
187 N.J.
 469, 477 (2006) (citation omitted).             "Reversible error will not

be found where the [jury] charge, considered as a whole, adequately

conveys the law and would not confuse or mislead the jury, even

though part, standing alone, might be incorrect."                        Latta v.

Caulfield, 
79 N.J. 128, 135 (1979).

      In this case, the jury was told to consider the credibility

of the witnesses, to assess their reasons, if any, for testifying,

to   weigh       any   prior   inconsistent   statements     as   part   of   that

assessment, and, specifically, to consider any previous criminal

convictions.           We find the jury was instructed to            scrutinize

                                       11                                 A-2291-16T4
Douglas's testimony such that defense counsel was not ineffective

in failing to request the cooperating witness charge.                  See State

v. Harris, 
156 N.J. 122, 180–82 (1998).            Through defense counsel's

cross-examination,    the   jury      learned      that   Douglas      had     prior

convictions,     served   time   in        prison,    provided    inconsistent

statements regarding the incident, and had a pending criminal

charge.     The judge explained that the jury should consider those

factors in evaluating Douglas's testimony.                Based upon defense

counsel   zealous   cross-examination         of     Douglas,    and   counsel's

repeated emphasis during closing argument that Douglas was not

credible and was influenced by his pending charges, coupled with

the general instructions to the jury on evaluating credibility of

witnesses, we conclude there was no prejudice to defendant as a

result of defense counsel's failure to request the cooperating

witness charge.

     Because defendant failed to make a prima facie showing of

ineffective assistance of counsel, no evidentiary hearing was

required.     Preciose, 
129 N.J. at 462-63.            Thus, the PCR judge's

decision to deny defendant's PCR motion without oral argument was

not an abuse of discretion.

     Affirmed.




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