STATE OF NEW JERSEY v. COREY CAUTHEN

NOT FOR PUBLICATION WITHOUT THE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-2789-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

COREY CAUTHEN, a/k/a JAMES
MARROW,

     Defendant-Appellant.
______________________________

              Submitted April 19, 2018 – Decided April 27, 2018

              Before Judges Simonelli and Haas.

              On appeal form Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              09-01-0006.

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

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        Defendant Corey Cauthen appeals from the January 27, 2017 Law

Division order, which denied his petition for post-conviction
relief without an evidentiary hearing.   On appeal defendant raises

the following contentions:

          THIS   MATTER   MUST   BE  REMANDED  FOR   AN
          EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
          ESTABLIASHED A PRIMA FACIE CASE OF TRIAL
          COUNSEL'S INEFFECTIVNESS.

          A.   Trial Counsel Failed To Investigate/Have
          An Alibi Witness Testify.

          B.   Trial   Counsel    Effectively    Induced
          Defendant Not To Testify.

     We have considered defendant's contention that trial counsel

effectively induced him not to testify in light of the record and

applicable legal principles and conclude it is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant provided no description of his purported testimony or

explanation as to how it may have altered the result.      However,

we reverse and remand for an evidentiary hearing on defendant's

contention that trial counsel failed to investigate and have an

alibi witness testify.

     We incorporate herein the facts set forth in State v. Cauthen,

No. A-0591-12 (App. Div. June 9, 2014) (slip op. at 3-7).1       The

following facts inform our review.



1
    We affirmed defendant's conviction for attempted murder,
aggravated assault, and related weapons charges. Id. at 16. Our
Supreme Court denied defendant's petition for certification.
State v. Cauthen, 
220 N.J. 100 (2014).

                                2                           A-2789-16T3
       The charges of attempted murder, aggravated assault, and

related     weapons    charges   against   defendant   stemmed   from   the

shooting of Alphonso Gee at approximately 5:45 a.m. on August 2,

2008.     Gee told a police officer that          he was shot by both

defendant's co-defendant, Amar Bease, and "a tall dark skinned

male with dreadlocks," whom the police believed was defendant.

Id. at 6.    Gee subsequently identified defendant from a photograph

as the second individual involved in the shooting.          Id. at 7.     At

trial, Gee identified both defendant and Bease as the men who shot

him.    Ibid.

       In support of his PCR petition, defendant certified he was

with Tanicia Thompson at her apartment in Paterson when the

shooting occurred.       He said he arrived there the evening of August

1, 2008, spent the entire night there, and did not leave until the

following day.        He was not certain of the time he left, but was

"positive that there was already daylight."        He told trial counsel

about his alleged alibi, but counsel failed to interview Thompson

or call her to testify at trial.

       Thompson certified that defendant arrived at her residence

on the evening of August 1, 2008, but she did not recall the exact

time he arrived.         She said defendant spent the night at her

apartment and did not leave until the following morning.          She was

not certain of the exact time he left, but "remember[ed] that

                                      3                            A-2789-16T3
there was already daylight."    She said that had she been asked,

she would have testified at trial to establish defendant was at

her home.

        Without conducting an evidentiary hearing, the PCR judge

found that in a videotaped statement Thompson gave to the police

in 2008,2 she was unable to provide specific facts or details about

what time defendant arrived at and/or left her apartment.        The

judge also found the alleged alibi was factually deficient, and

thus, trial counsel's decision not to rely on Thompson as an alibi

witness was a strategic decision and not an unprofessional error.

The judge also concluded that Thompson's testimony would not have

changed the outcome of the proceedings.

        An ineffective assistance of counsel claim may occur when

counsel fails to adequately conduct a pre-trial investigation.

State v. Porter, 
216 N.J. 343, 352 (2013).   Counsel has a duty to

"conduct a prompt investigation of the circumstances of the case

. . .    relevant to [the defendant's] guilt and degree of guilt or

penalty."     Id. at 353 (quoting State v. Russo, 
333 N.J. Super.
 119, 139 (App. Div. 2002)). Accordingly, "[f]ailure to investigate

an alibi defense is a serious deficiency that can result in the

reversal of a conviction[,]" because of the great potential for



2
    The videotaped statement was not supplied on appeal.

                                  4                         A-2789-16T3
creating reasonable doubt as to a defendant's guilt in the minds

of the jury.       Ibid. (quoting State v. Mitchell, 
149 N.J. Super.
 259, 262 (App. Div. 1977)).

      A defendant is "entitled to an evidentiary hearing only upon

the establishment of a prima facie case in support of [PCR],"

there are "material issues of disputed fact that cannot be resolved

by reference to the existing record," and such a "hearing is

necessary    to     resolve   the    claims         for   relief."         Id.    at     354

(alteration in original) (quoting R. 3:22-10(b)).                     For ineffective

assistance    of    counsel   claims,         an    evidentiary       hearing       should

ordinarily be granted "because the facts often lie outside the

trial record."       Ibid. (quoting State v. Preciose, 
129 N.J. 451,

462   (1992)).       However,    a    defendant           is   not   entitled       to    an

evidentiary    hearing    when      his   or       her    claims     are   "too     vague,

conclusory,    or    speculative."            Id.    at    355   (quoting        State    v.

Marshall, 
148 N.J. 89, 158 (1997)).

      If a defendant claims his counsel inadequately investigated

an alibi, he or she "must assert facts that an investigation would

have revealed, supported by affidavits or certifications based

upon the personal knowledge of the affiant[.]" Id. at 353 (quoting

State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999)).                            We

must consider a defendant's contentions "indulgently," by viewing



                                          5                                        A-2789-16T3
the asserted facts in a light most favorable to the defendant.

Ibid.

      Applying   the    above    standards,   we   conclude   defendant

established a prima facie case supporting PCR and an evidentiary

hearing is necessary to resolve his claim for relief. Accordingly,

we reverse and remand for an evidentiary hearing on defendant's

claim   that   trial   counsel   rendered   ineffective   assistance    by

failing to investigate and call Thompson as an alibi witness.           On

remand, defendant must satisfy both prongs of the Strickland3 test.

      Affirmed in part, reversed in part and remanded for further

proceedings consistent with this opinion.           We do not retain

jurisdiction.




3
    Strickland v. Washington, 
466 U.S. 668, 687-88, 694 (1984).

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