STATE OF NEW JERSEY v. JAMES ROYAL

NOT FOR PUBLICATION WITHOUT THE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-2737-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMES ROYAL,

     Defendant-Appellant.
___________________________

              Submitted March 19, 2018 – Decided April 10, 2018

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 04-02-0180.

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

              Jennifer   Webb-McRae,    Cumberland   County
              Prosecutor, attorney for respondent (Andre R.
              Araujo, Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant James Royal appeals from a October 5, 2016 order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.   Having reviewed the record in light of the

applicable law, we affirm.

     The underlying facts in this case are set forth at length in

our opinion on defendant's direct appeal, State v. James Royal,

A-3432-09 (App. Div. July 7, 2014), certif. denied, 
220 N.J. 208

(2015).   We therefore limit our recitation to those facts relevant

to defendant's PCR petition.

     Following a jury trial, defendant was convicted of two counts

of first-degree murder, 
N.J.S.A. 2C:11-3(a)(1) and (2), one count

of second-degree burglary, 
N.J.S.A. 2C:18-2, and related weapons

offenses arising from the January 17, 2003, shooting deaths of

defendant's former girlfriend, Felicia Flores, and her sister,

Natashia Ferrer.1

     The trial evidence showed that in the days preceding the

murders of Flores and Ferrer, Flores informed defendant that she

was no longer interested in a relationship with him.    On January

17, 2003, defendant went into Flores's home armed with a handgun.

Teondra Bowman, who was present, heard Ferrer tell Flores to inform



1
   Defendant was also convicted of other charges related to a
January 16, 2003 incident involving Flores.      Defendant's PCR
petition is unrelated to his convictions on those charges.

                                 2                          A-2737-16T2
defendant to leave the house or Ferrer would call the police.

Ferrer told Bowman to take Ferrer's child out of the home.              Bowman

took the child, fled through a rear door, and heard two gunshots

as she ran to her nearby house.          She heard another gunshot as she

arrived at her home, where she told her cousin Dave Smith that

defendant was at Flores's house with a gun.               Smith walked toward

Flores's house and heard a gunshot.

      After defendant's arrival at the home, Ferrer called 9-1-1.

A State Police Sergeant was qualified as an expert in audio

enhancement, and explained that he reduced the background noise

on the recording of Ferrer's 9-1-1 call to allow the voices on the

call to be heard more clearly.           The enhanced recording of the 9-

1-1   call,   which    was   admitted    in   evidence,    captured   Ferrer's

conversation    with     the    9-1-1    operator,   some     of   defendant's

statements while in the home, and the sounds of two gunshots.

      The State presented evidence showing Flores was shot in the

chest and above her pelvis.             The medical examiner opined that

based on the nature of the wounds, Flores was standing erect when

she was shot in the pelvis, but was prone on the floor when she

was shot in the chest.         Flores died from the gunshot wounds.

      Ferrer was found in the laundry room of the home.                     She

sustained a single gunshot to the chest.          The bullet caused damage

to her heart, liver, stomach and spleen, resulting in her death.

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The evidence also showed defendant sustained a bullet wound to his

abdomen.      The State presented a firearms expert who testified that

all of the bullets and casings found at the scene were fired from

the same gun, which was recovered in the kitchen where the police

found Flores and defendant.

      Defendant did not testify at trial.             Through the testimony

of defendant's expert psychologist, however, defendant contended

he went to Flores's home with a plan to kill himself, and the gun

accidentally fired when Flores attempted to grab the weapon.

      Following     our    affirmance     of   defendant's   conviction        and

sentence, and the Supreme Court's denial of his petition for

certification, defendant filed a pro se PCR petition.              He claimed

there was newly discovered evidence that would have changed the

outcome of trial, and the prosecutor suppressed evidence and used

perjured testimony to obtain defendant's convictions.              Before the

PCR court, defendant's assigned counsel argued that trial counsel

was   ineffective     by   failing   to     obtain   audio   enhancement       and

ballistics experts to counter the State's experts at trial.

      The court heard argument and denied the petition in a detailed

written opinion.      The court found defendant failed to sustain his

burden   of    demonstrating    an   entitlement     to   either   PCR    or    an

evidentiary hearing.        The court explained:



                                        4                                A-2737-16T2
         [I]n order to establish a prima facie case, a
         petitioner 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.         Thus, when a
         petitioner     claims    his    trial   counsel
         inadequately investigated his case, he must
         assert the facts that an investigation would
         have revealed, supported by affidavits or
         certifications    based    upon   the  personal
         knowledge of the affiant or person making the
         certification. [] Petitioner has failed to
         provide    any    information,    by   way   of
         certification, affidavit or report that would
         contradict   the    opinion   of   the  State's
         expert[s].   .    .   .   [A]   party  claiming
         ineffective assistance of counsel cannot
         baldly claim trial counsel was deficient for
         failing to produce evidence at trial without
         producing the very evidence he claims should
         have been presented.     Petitioner has failed
         to provide this court with any evidence that
         this was not simply a trial strategy in which
         trial counsel was unable to find a qualified,
         credible expert in ballistics or audio that
         was able to reach an alternative opinion.

The court also found defendant was not entitled to an evidentiary

hearing because he failed to establish a prima facie case of

ineffective assistance of counsel.   This appeal followed.

    Defendant's counsel presents the following argument for our

consideration:

         THIS   MATTER   MUST   BE  REMANDED  FOR   AN
         EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
         ESTABLISHED A PRIMA FACIE CASE OF TRIAL
         COUNSEL'S INEFFECTIVENESS FOR FAILING TO
         INVESTIGATE/OBTAIN CRUCIAL EXPERT WITNESSES.



                                5                            A-2737-16T2
       In   his   pro   se   brief,   defendant   presents   the      following

arguments:

             POINT I.

             FAILING TO ADVANCE ALL LEGITIMATE ARGUMENTS
             THAT THE RECORD WILL SUPPORT INCORPORATING
             THEM IN WHICH WILL PRESERVE PETITIONER'S
             CONTENTIONS GOING FORWARD.

             POINT II.

             THE FAILURE      TO   INVESTIGATE    AND   RETAIN   AN
             EXPERT.

                                      II.

       We review the legal conclusions of a PCR court de novo. State

v. Harris, 
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).                  The de

novo standard of review applies to mixed questions of fact and

law.   Id. at 420.      Where an evidentiary hearing has not been held,

it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court."                Id.

at 421.     We apply that standard here.

       To prevail on a claim of ineffective assistance of counsel

raised under the United States Constitution, a defendant must

satisfy the two-pronged test established by the Supreme Court in

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

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

the first prong of the Strickland standard, a petitioner must show

                                       6                                A-2737-16T2
counsel's performance was deficient.       It must be demonstrated that

counsel's handling of the matter "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."        Strickland, 
466 U.S. at 687-

88.

      Under the second prong of the standard, a defendant "must

show that the deficient performance prejudiced the defense."            Id.

at 687.    There must be a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."         Id. at 694.       A petitioner must

demonstrate that "counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable."

Id. at 687. "The error committed must be so serious as to undermine

the court's confidence in the jury's verdict or result reached."

State v. Chew, 
179 N.J. 186, 204 (2004) (citing Strickland, 
466 U.S. at 694).

      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).      A hearing is required only when (1) a

defendant establishes a prima facie case in support of PCR, (2)

the court determines that there are disputed issues of material

fact that cannot be resolved by review of the existing record, and

                                     7                            A-2737-16T2
(3) the court determines that an evidentiary hearing is required

to resolve the claims asserted.                 State v. Porter, 
216 N.J. 343,

354    (2013)    (citing      R.   3:22-10(b)).         "A     prima    facie    case    is

established when a defendant demonstrates 'a reasonable likelihood

that his or her claim, viewing the facts alleged in the light most

favorable       to    the   defendant,    will     ultimately          succeed    on    the

merits.'"       Id. at 355 (quoting R. 3:22-10(b)).

       "[T]o establish a prima facie claim a defendant must do more

than make bald assertions that he was denied effective assistance

of counsel."          Ibid. (quoting State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div. 1999)).              PCR petitions must be "accompanied

by an affidavit or certification by defendant, or by others,

setting forth with particularity[,]"                    State v. Jones, 
219 N.J.
 298,    312   (2014),       "facts   sufficient         to   demonstrate        counsel's

alleged substandard performance," Porter, 
216 N.J. at 355 (quoting

Cummings,       321    N.J.   Super.   at       170);    see    also    R.   3:22-10(c)

(requiring that factual predicates for PCR claims "must be made

by an affidavit or certification pursuant to Rule 1:4-4 and based

on personal knowledge of the declarant").

       When a defendant asserts that his attorney failed to call

exculpatory witnesses, "he must assert the facts that would have

been revealed, 'supported by affidavits or certifications based

upon the personal knowledge of the affiant or the person making

                                            8                                     A-2737-16T2
the certification.'"        State v. Petrozelli, 
351 N.J. Super. 14, 23

(App. Div. 2002) (quoting Cummings, 
321 N.J. Super. at 170).

Counsel is not constitutionally ineffective by failing to call

witnesses at a hearing whose testimony would not change the

outcome.    State v. Bey, 
161 N.J. 233, 262 (1999).

     We    are    satisfied     the   PCR       court   correctly   applied     these

principles       in   denying   defendant's         PCR   petition.     Defendant

presents nothing more than the bald assertion that his counsel

should have presented audio enhancement and ballistics experts at

trial.     His petition is bereft of an affidavit or certification

providing    competent     evidence     supporting        either    prong   of     the

Strickland standard.        See Strickland, 
466 U.S.  at 687 (holding a

petitioner must establish both prongs of the standard to obtain

reversal of a conviction based on a claim of ineffective assistance

of counsel).

     Affirmed.




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