STATE OF NEW JERSEY v. ROBERT RAYMOND CARMAN, JR

NOT FOR PUBLICATION WITHOUT THE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-2520-16T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT RAYMOND CARMAN, JR.,
a/k/a ROBERT R. CARMAN, JR.,
BOBBY CARMEN and ROBERT R. CARMEN, JR.,

     Defendant-Appellant.
________________________________________

              Submitted March 20, 2018 – Decided May 1, 2018

              Before Judges Yannotti and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              03-11-0727.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Michael   H.   Robertson,   Somerset  County
              Prosecutor, attorney for respondent (Perry
              Farhat, Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant appeals from an order entered by the Law Division

on August 11, 2016, which denied his petition for post-conviction

relief (PCR), and an order entered on September 30, 2016, denying

his motion for reconsideration. We affirm.

                                I.

     A Somerset County grand jury charged defendant with first-

degree murder of J.B., contrary to 
N.J.S.A. 2C:11-3.1 Thereafter,

defendant was tried before a jury. At the trial, evidence was

presented that J.B. lived in Manville with her mother and two

sisters. J.B. was twenty-three-years-old at the time. On Saturday

afternoon, October 11, 2003, J.B. left her home. She was wearing

black pants, a maroon blouse, a gray hooded sweatshirt, and white

sneakers.

     At around 2:00 p.m., J.B. went to a pub in Manville, where

she saw L.F., defendant's half-brother. J.B. and L.F. had something

to eat and drank a few beers. Afterwards, they went with L.F.'s

friends to another bar in Bound Brook. The group purchased beer

and proceeded to a local river to go "four wheeling" with their

trucks. Thereafter, J.B. and L.F. went to L.F.'s apartment.

     That evening, J.B. and L.F. returned to the pub in Manville.

J.B.'s sister, J.B.'s best friend H.E., and defendant were also


1
  In this opinion, we use initials to identify the victim and
several witnesses to protect their identities.

                                2                           A-2520-16T2
at the pub. Defendant is H.E.'s ex-boyfriend. While at the pub,

defendant grabbed J.B. and her sister's breasts, apparently in a

joking manner. They told him to stop and he complied. At some

point, H.E. noticed that J.B. was not in the pub.

       Defendant told H.E. he gave J.B. $25 to go buy him some crack

cocaine, and she had gone to the residence of D.S., a local drug

dealer. H.E. remained at the pub until about 1:30 a.m., when she

left   with   J.B.'s   sister.   H.E.       said   she   was   going   to    D.S.'s

residence, and she asked defendant and L.F. to meet her there so

they could ride back to the river together.

       At D.S.'s home, H.E. found J.B. with D.S., who was "cooking"

crack. J.B. told her the drugs were not ready, and H.E. went

outside to wait for defendant and L.F.             They arrived a short while

later, and H.E. informed defendant he would have to wait for the

drugs. Defendant said he wanted to get his money back and leave.

H.E. went inside the home and took the money. D.S. became angry

and refused to give J.B. any drugs.

       H.E. left, and J.B. followed her outside. J.B. and defendant

were upset because the drug deal had fallen through. H.E. said she

no longer wanted to go down to the river, and she asked L.F. to

drive her home. As they drove away, H.E. saw J.B. and defendant

leave together. Sometime later that evening, J.B. returned to



                                        3                                   A-2520-16T2
D.S.'s house and again attempted to purchase drugs. He turned her

away.

     A bartender at the pub in Manville testified that after he

closed the bar, he was driving home with a co-worker. At around

2:45 a.m., he observed J.B. and defendant together on the street

near a pay phone. J.B.'s sister testified that she knew J.B. had

returned home because around 3:30 a.m., there was a light on in

J.B.'s bedroom. J.B. apparently changed her clothes. Her black

pants and maroon blouse were in her room, and her pink pants and

grey sweatshirt were missing.

     The night manager of a Quick Chek on Main Street in Manville

said that around 3:30 a.m., J.B. and a male companion entered the

store. In addition, a surveillance recording from a camera at a

Dunkin' Donuts in the area showed J.B. and a man believed to be

defendant in the parking lot. The recording indicated that it was

recorded at 4:11 a.m. to 4:14 a.m.2 On the video recording, J.B.

is seen wearing pink pants and her grey sweatshirt. J.B. returned

to the Quick Chek around 4:30 a.m. to make a phone call.

     At sometime between 4:00 a.m. and 5:00 a.m., a man delivering

newspapers in town saw J.B. at a phone booth. He knew J.B. and


2
  Sometime after the trial, evidence was presented that the clock
on the surveillance camera was about fifteen minutes fast, thereby
placing the time of the recording at between 3:57 a.m. and 4:00
a.m.

                                4                          A-2520-16T2
they had a brief conversation. The deliveryman said J.B. was with

a man whom he had seen before but did not know. In addition, a

drug dealer who knew J.B. said she had called him several times

that day seeking to purchase cocaine. Her last call was at around

4:30 a.m. He refused to sell her drugs.

      R.P., a resident of Manville, testified that he lived along

the   train   tracks   near   the   river,   and   often   heard    people

congregating near the river in the woods. He said that in the

early morning of October 12, 2003, he heard the voices of three

people arguing. Two of the voices seemed to be female. R.P. stated

that the argument continued for about five to ten minutes.

      Just before daybreak on October 12, 2003, the engineer of a

freight train traveling through Manville noticed what he thought

was a body on the tracks. He applied the brakes but could not

stop. The train struck the body, which was later identified as

J.B.'s body. The police were called at approximately 6:30 a.m.

      J.B.'s body was severed at the waist, and the upper portion

of her torso was beneath the train. J.B.'s right forearm was found

a few feet away, and the middle finger of the right hand was

missing. The lower portion of the torso was on the tracks. It was

nude, except for a blue sock on the right foot. The matching sock

was found fifteen to twenty feet away. J.B.'s pink pants, which

were turned inside out, were found about five feet away.

                                    5                              A-2520-16T2
     The police also found a cell phone, later identified as J.B.'s

phone, on the ground near the tracks. A trail of blood extended

from the phone to the body under the train. Near the tracks, the

police recovered a beam of wood, about the size of a four-by-four.

It was stained with blood, which was later determined to be J.B.'s

blood.

     Sometime between 6:00 a.m. and 8:00 a.m., one of defendant's

male acquaintances was driving through town and saw a water main

break near the location where J.B.'s body was found. The man also

saw police vehicles near a recreation building. He stopped to tell

the officers about the water main break. An officer told the man

to stay clear of the area because a body had been found near the

railroad tracks.

     The man drove on and passed defendant, who was walking on the

street, and defendant flagged him down. Defendant asked what was

going on down by the railroad tracks. The man thought defendant's

question was "odd" because from where defendant was standing,

there was no way he could see what was going on down by the

railroad tracks. The man did not observe any blood on defendant's

clothing.

     The police obtained a search warrant for defendant's home and

person. The police examined and photographed his body. They noticed

that defendant had redness and abrasions on his upper back, chest,

                                6                           A-2520-16T2
and stomach. The officers confiscated defendant's boots, one of

which had blood on the sole. Test results showed that the blood

was J.B.'s blood.

     An   autopsy   was   performed       on   October   13,   2013.   It   was

determined that the manner of death was homicide, and the cause

of death was multiple blunt traumatic injuries, dismemberment, and

traumatic amputation. The autopsy revealed that J.B.'s lower jaw

was fractured, and there were tears inside her lip and mouth. Her

nose and left cheekbone were broken. There were abrasions, scrapes,

and lacerations on her face. It was determined that the injuries

to the face and neck were inflicted before J.B.'s death, and were

consistent with being struck and beaten with a wooden board.

     An inmate with whom defendant had been incarcerated testified

that defendant told him he killed J.B. by striking her with a

piece of wood. According to the inmate, defendant said he had just

broken up with his girlfriend, his "life was going downhill," and

he just "snapped."

     The jury found defendant guilty of first-degree murder, and

the trial court sentenced him to an extended term of thirty-five

years to life, subject to an eighty-five percent period of parole

ineligibility, pursuant to 
N.J.S.A. 2C:43-7.2. Defendant appealed

from the judgment of conviction dated August 13, 2007. We affirmed

his conviction. State v. Carman, No. A-2434-07 (App. Div. Dec. 10,

                                      7                                A-2520-16T2
2009).   The   Supreme     Court     denied      defendant's      petition     for

certification. State v. Carman, 
201 N.J. 441 (2010).

                                     II.

      Defendant thereafter filed a pro se PCR petition, alleging

the ineffective assistance of trial counsel. The court assigned

counsel to represent defendant, and PCR counsel filed an amended

petition and brief, arguing that defendant's trial attorney was

ineffective because he failed to: (1) file a motion to have certain

evidence found at J.B.'s home submitted for further examination;

(2)   investigate   the    case    and    call   witnesses      who   would   have

supported the defense theory of the case; (3) raise an apparent

discrepancy    regarding    the    time      shown   on   the   Dunkin'    Donuts

surveillance recording; (4) argue more comprehensively issues

under State v. Sands, 
76 N.J. 127 (1978), and State v. Brunson,


132 N.J. 377 (1993); and (5) seek an adjournment of the trial

based on defendant's health issues. PCR counsel further argued

that the cumulative effect of trial counsel's errors constituted

the ineffective assistance of counsel.

      The PCR court heard argument and denied the petition without

conducting an evidentiary hearing. Defendant appealed. We reversed

the order denying PCR and remanded the matter for an evidentiary

hearing, limited to the issue of defendant's alibi claim. State

v. Carman, No. A-2669-12 (App. Div. Jan. 2, 2015) (slip op. at 17-

                                         8                                A-2520-16T2
18). Defendant then filed a petition for certification, which the

Supreme Court denied. State v. Carman, 
221 N.J. 492 (2015).

     On remand, the PCR judge conducted an evidentiary hearing.

At the hearing, the judge heard testimony from Joan Carman,

defendant's mother; the engineer of the train that struck J.B.'s

body; defendant's trial attorney; and the investigator for the

defense.

     Thereafter, the PCR judge filed a written opinion finding

that defense counsel and the investigator made every reasonable

effort to locate Mrs. Carman so that she could testify at trial,

but she had "mysteriously" absented herself from New Jersey and

remained incommunicado. The judge noted that Mrs. Carman had moved

to Florida a short time before the trial, and she failed to inform

defense counsel of her whereabouts.

     The judge also found that defense counsel had legitimate

strategic concerns about calling Mrs. Carman as a witness. At the

remand hearing, defense counsel testified he was concerned her

testimony would be challenged as biased, and that she may have

tampered with evidence by laundering defendant's clothing. The

judge   found   that   defendant's   trial   attorney   had   thoroughly

investigated the matter and would have made an appropriate tactical

decision not to call Mrs. Carman as a witness if she had been

available.

                                     9                           A-2520-16T2
     The judge entered an order dated August 11, 2016, denying

PCR. Defendant then filed a motion for reconsideration. In support

of his motion, defendant submitted additional evidence, including

an affidavit stating the court's file did not include a notice of

alibi. According to defendant, this showed that his trial attorney

never served a notice of alibi on the prosecutor.

     The judge filed an order dated September 30, 2016, denying

the motion. In that order, the judge wrote:

               The [c]ourt observed Mrs. Carman, the
          [d]efendant's mother, testify at the [p]lenary
          [h]earing in August and found her incredible.
          She had [a] motive to prevaricate, her
          demeanor was bizzare, her testimony was vague
          and   inconsistent.   She   was   missing  and
          incommunicado at the time of [d]efendant's
          trial so that [d]efendant's trial attorney
          could not call her even if he wanted to. There
          were issues involving her participating in the
          spoliation of evidence.     That, coupled with
          her performance on the witness stand before
          this [c]ourt at the . . . [PCR] hearing, would
          have persuaded even the most inept criminal
          defense attorney not to call her as a witness
          at trial. The fact that the [c]ourt's file
          does not contain a [n]otice of [a]libi is not
          dispositive of the proposition that none was
          served on the prosecutor at the time. There
          are, also, other explanations as to why that
          document cannot be found in 2016, when it
          could have been in the file [thirteen] years
          prior in 2003.

     This appeal followed. Defendant's PCR counsel has filed a

brief in support of the appeal. In addition, defendant has filed

a pro se supplemental brief.

                               10                          A-2520-16T2
                              III.

     On appeal, defendant argues that his conviction must be

reversed because he was denied the effective assistance of trial

counsel. He contends his trial attorney erred by failing to locate

Mrs. Carman and have her testify. He contends her testimony would

have supported an alibi defense.

     Where, as in this case, the PCR court conducts an evidentiary

hearing on the petition, we will defer to the court's findings of

fact based on live-witness testimony if the court's findings are

"supported by sufficient credible evidence in the record." State

v. Nash, 
212 N.J. 518, 540 (2013). Our deference to the court's

factual findings is especially appropriate when its findings are

"substantially influenced by [the court's] opportunity to hear and

see the witnesses." Ibid. (quoting State v. Elders, 
192 N.J. 224,

244 (2007)).

     In order to prevail on a claim of ineffective assistance of

counsel, a defendant must meet the two-part test established by

Strickland v. Washington, 
466 U.S. 668, 686 (1984), and adopted

by our Supreme Court in State v. Fritz, 
105 N.J. 42, 58 (1987).

Under Strickland, a defendant must show that counsel made errors

"so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." 
466 U.S. at 687.



                               11                          A-2520-16T2
Counsel's        performance       is   deficient   if     it   "[falls]    below    an

objective standard of reasonableness." Id. at 688.

         A    defendant     also    must   show     that    counsel's      "deficient

performance prejudiced the defense." Id. at 687. The defendant

must show that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. A "reasonable probability"

is   a       "probability   sufficient      to    undermine     confidence    in    the

outcome" of the proceeding. Ibid.

         Moreover, "[i]n addressing an ineffective assistance                       [of

counsel] claim based on a counsel's failure to call an absent

witness, a PCR court must unavoidably consider whether the absent

witness's testimony would address a significant fact in a case,

and assess the absent witness's credibility." State v. L.A., 
433 N.J. Super. 1, 15 (App. Div. 2013). "However, the assessment of

an absent witness's credibility is not an end in itself." Ibid.

"Rather, it is a factor in the court's determination whether there

is a reasonable probability that, but for the attorney's failure

to call the witness, the result would have been different — that

is, there would have been reasonable doubt about the defendant's

guilt." Id. at 15-16.

         When the court considers the impact an absent witness may

have, the "court should consider: '(1) the credibility of all

                                           12                                 A-2520-16T2
witnesses,   including   the   likely   impeachment   of   the   uncalled

defense witnesses; (2) the interplay of the uncalled witnesses

with the actual defense witnesses called; and (3) the strength of

the evidence actually presented by the prosecution.'" Id. at 16-

17 (quoting McCauley-Bey v. Delo, 
97 F.3d 1104, 1106 (8th Cir.

1996)). "All three factors derive from the court's obligation

under Strickland to consider the totality of the evidence in making

its prejudice determination." Id. at 17.

     Defendant argues that the testimony presented at the remand

hearing does not support the PCR court's finding that defendant's

attorney was not deficient in failing to call Mrs. Carman as a

witness. We disagree.

     The testimony showed that shortly before defendant's trial

began, Mrs. Carman moved to Florida. She claimed she had contacted

defendant's trial attorney or his office and said she was moving.

Mrs. Carman conceded that she did not provide counsel or the

investigator with her address in Florida. She stated that her

other son Brian was still living in her house, and she assumed he

would send her "anything important." She testified that she did

not have any mail forwarded to her from New Jersey, other than

social security benefits.

     Defendant's trial attorney testified, however, that Mrs.

Carman "basically disappeared" a few weeks or a month before the

                                  13                              A-2520-16T2
trial. He said her action was "bizarre" and "just made no sense."

The attorney denied receiving any call from Mrs. Carman indicating

she was moving. In addition, the defense investigator stated that

Mrs. Carman never told him she was moving, and she did not provide

him with a Florida mailing address.

      The investigator testified that he went to her house and

spoke with her son Brian, but he was not able to provide the

investigator with any information about Mrs. Carman's whereabouts.

Brian also told the investigator he did not have a phone number

for his mother. Furthermore, the notes the investigator prepared

of his conversation with Brian indicate he did not know if his

mother was going to return for defendant's trial.

      Thus, there is sufficient credible evidence in the record to

support the judge's finding that defense counsel and the defense

investigator exercised due diligence in attempting to locate Mrs.

Carman so that she could be called as a witness at defendant's

trial. The record supports the judge's finding that shortly before

the trial, Mrs. Carman moved to Florida and failed to provide

defense counsel and the investigator with contact information. As

the judge determined, she had essentially gone into hiding.

      Defendant further argues that the record does not support the

PCR   judge's   finding   that   defendant's   attorney   had   sufficient

strategic reasons for not calling Mrs. Carman as a witness, even

                                    14                             A-2520-16T2
if she could be located. Again, we disagree. The record shows that

Mrs. Carman's testimony could have been challenged for bias because

she is defendant's mother.

     Moreover, Mrs. Carman told the investigator that the clothes

defendant   had   been   wearing   the   night   J.B.   was   killed   were

"spotless." However, the record shows that blood was found on

defendant's boot, which was later determined to be J.B.'s blood.

The presence of blood on one of defendant's boots suggested that

Mrs. Carman may have laundered defendant's clothes to destroy

evidence.

     In addition, Mrs. Carman made inconsistent statements about

the time she recalled first seeing defendant in the morning of

October 12, 2003. At the PCR hearing, Mrs. Carman testified that

she generally awakens at 5:00 a.m., and she probably saw defendant

between 5:00 a.m. and 5:15 a.m. However, in 2011, when interviewed

by the defense investigator, Mrs. Carman said she saw defendant

at either 5:30 a.m. or 6:00 a.m. Furthermore, the investigator's

report from December 2004 states that Mrs. Carman reported to him

that she saw defendant at 6:00 a.m.

     Mrs. Carman also was unable to provide a clear statement as

to when defendant returned home in the early morning of October

12, 2003. She testified that she usually knows when defendant

returns home late at night. She explained that he has a bad habit

                                   15                              A-2520-16T2
of slamming doors, especially after he had been drinking. Mrs.

Carman said that at these times, defendant usually slams the porch

door, the kitchen door, and his bedroom door. The dog would hear

the noise, bark, and Mrs. Carman would wake up. Mrs. Carman

testified that she did not hear the doors slam or the dog bark in

the early morning of October 12, 2003.

      Thus, defense counsel had sound strategic reasons for not

calling Mrs. Carman as a witness. Her testimony would have been

challenged because she was biased and gave inconsistent statements

about when she first saw defendant on the morning of October 12,

2003. Moreover, and most importantly, counsel had reason to believe

Mrs. Carman had destroyed evidence that would have been damaging

to her son.

      Defendant further argues that the result of the trial would

have been different if Mrs. Carman had testified for the defense.

He contends her credibility was "virtually unassailable." However,

as the PCR judge found, her testimony was inconsistent on several

key   points.     The   judge    also    noted   in   his    order   denying

reconsideration that Mrs. Carman's demeanor was bizarre, she had

a   motive   to   prevaricate,    and    her   testimony    was   "vague   and

inconsistent."

      Defendant argues, however, that Mrs. Carman's testimony was

consistent with the testimony of another witness, who claimed he

                                    16                                A-2520-16T2
saw J.B. with a man in the early morning of October 12, 2003.

That witness stated that the man was about five feet, five or six

inches tall, whereas defendant is much taller. The evidence shows

that the witness observed the man while sitting down, which may

account for the discrepancy.

     Mrs.   Carman   also   could    not   account   for   defendant's

whereabouts at any time prior to 5:15 a.m. or 5:30 a.m. Witnesses

testified that defendant and J.B. were together during the evening

she was killed. The Dunkin' Donuts surveillance video shows J.B.

with defendant at around 4:00 a.m. A drug dealer said she called

him about 4:30 a.m. Her body was struck by the train at daybreak.

Mrs. Carman's testimony would not have provided a solid alibi.

     Furthermore, when the police searched defendant's home and

his person, they found redness and abrasions on his body, and

blood on one of his boots. In addition, in 2006, while in jail,

defendant told another inmate that he killed J.B. by hitting her

with a piece of wood.

     In sum, defendant failed to show that if Mrs. Carman had

testified at trial, it was reasonably probable the result here

would have been different. Her testimony would not have raised a

reasonable doubt as to whether defendant murdered J.B. during the

early morning hours of October 12, 2003.



                                17                             A-2520-16T2
       As noted previously, defendant has filed a pro se supplemental

brief. He argues that trial counsel was inexcusably negligent

because he failed to locate and present testimony from his mother.

He claims Mrs. Carman was easily accessible. He further argues

that the State has erroneously focused on "minor inconsistencies"

in his mother's testimony. He notes that she is a seventy-three-

year-old senior citizen. He argues he was prejudiced by counsel's

failure to present alibi evidence, and his conviction should be

reversed.

       The arguments presented in defendant's pro se supplemental

brief   lack   sufficient    merit    to   warrant   discussion.   R.     2:11-

3(e)(2). The record fully supports the PCR court's determination

that    defendant   failed    to     satisfy   the   Strickland    test     for

ineffective assistance of counsel with regard to his purported

alibi defense.

       Affirmed.




                                      18                             A-2520-16T2