STATEOF NEW JERSEY v. FRANKLIN PRATHER

NOT FOR PUBLICATION WITHOUT THE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-3631-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRANKLIN PRATHER,

     Defendant-Appellant.
_________________________________

              Argued October 2, 2017 – Decided February 21, 2018

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              06-10-1015.

              Brian D. Driscoll, Designated Counsel, argued
              the cause for appellant (Joseph E. Krakora,
              Public Defender, attorney; Brian D. Driscoll,
              on the brief).

              Milton S. Leibowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Thomas K. Isenhour,
              Acting Union County Prosecutor, attorney;
              Milton S. Leibowitz, of counsel and on the
              brief).

PER CURIAM
     A jury convicted defendant Franklin Prather of the July 3,

2006 felony-murder of a well-known local contractor.       State v.

Franklin Prather, No. A-3221-08 (App. Div. May 13, 2013) (slip op.

at 2).1   To place the issues raised on appeal in context, we review

some of the trial evidence by referring to our prior opinion.

     Defendant's co-defendant, Maurice Knighton, pled guilty and

was a key witness at trial.       Prather, slip op. at 2, 15-17.

Knighton claimed defendant supplied the murder weapon, a gun which

defendant kept at his father's house.      Id. at 15.    Before the

murder, defendant and Knighton went to a CVS store and purchased

duct tape, to bind the victim, and stockings to use as masks.     Id.

at 16.    The jury saw CVS surveillance tapes which, along with

testimony and store records, timed the purchases and corroborated

Knighton's testimony.    Ibid.

     Defendant's cousin testified and corroborated the purchase

of the stockings.    Id. at 17.   He also confirmed that defendant

obtained a gun from his father's home before the murder, and that

shortly after the shooting, defendant and Knighton came to a house



1
  Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 
429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd, 
220 N.J. 544 (2015).

                                  2                          A-3631-14T3
frequented by drug users.   Id. at 18.   Defendant was nervous and

sweating; Knighton had blood on his shirt.   Ibid.

     Defendant's father, Franklin Prather, Sr. (Franklin Sr.), was

an important State's witness:

               Franklin   Sr.   reluctantly    testified
          against his son. He had previously seen two
          guns in the garage of the property . . . that
          his family owned and from which he was
          vacating during the weeks leading up to July
          3, 2006. He knew defendant "had a weapon."
          One of the guns Franklin Sr. saw was a
          revolver, but it was smaller than his own .357
          Magnum revolver.

               Defendant called him several nights in a
          row immediately before the murder, asking
          about things that Franklin Sr. had moved from
          the house . . . . Defendant asked for his gun
          and bullets. On Friday or Saturday before the
          murder, defendant called Franklin Sr., angry
          because he could not find some of the things
          he wanted. That night, Franklin Sr. gave
          defendant some brown bags and some boxes taken
          from [the] house. Although he had previously
          admitted   to   detectives    that   he   knew
          defendant's gun was in one of the brown bags,
          Franklin Sr. testified at trial that he was
          not sure.

          [Id. at 18-19.]

     Union Township Detective William Fuentes took statements from

defendant, his father, his cousin and Knighton.   Id. at 5-7.   The

judge denied defendant's motion to suppress his statements, id.

at 8, and, although defendant never admitted his involvement, the




                                3                          A-3631-14T3
State introduced the statements and argued they were inconsistent

with other evidence.    Id. at 15.

     We affirmed defendant's conviction and sentence on direct

appeal.   Id. at 4.   The Supreme Court denied defendant's petition

for certification.    
216 N.J. 430 (2013).

     Defendant filed a pro se petition for post-conviction relief

(PCR) alleging the ineffective assistance of counsel (IAC).           PCR

counsel was appointed, and he filed a brief, amended petition and

supplemental   letter    brief.      The   supplemental   petition    was

supported by affidavits from three women.       In identical language,

each affiant stated she had attended the trial and, "[d]uring one

of the proceedings," had observed juror number nine "with her head

hanging down in a nod position — possibly sleeping."        Each affiant

said she told defendant of her observations.

     There were also three affidavits from defendant.        He claimed

that he wanted to testify on his own behalf at trial, but his

attorney advised against it and told him to tell the judge, when

asked, that he (defendant) elected not to testify.        In the second

affidavit, defendant said counsel told him during trial that the

battery in his hearing aid was faulty and he (counsel) did not

"hear everything."    In the third affidavit, defendant stated that

his family had retained private counsel but were unable to pay the

balance   of   the     retainer   because    the   police    department

                                   4                             A-3631-14T3
"seiz[ed] . . . funds from [his] family during the investigation."

As a result, defendant's "opportunity to secure counsel of choice

failed."    Franklin Sr. also filed an affidavit attesting to having

retained private counsel for his son and corroborating the seizure

of family funds during the investigation.2

     In    addition,   defendant   attached   two   statements   taken   by

police.    The statement of D.W., a juvenile at the time, was taken

on July 6, 2006.       D.W. said he saw Knighton with a revolver two

or three nights earlier, and Knighton said he was looking to rob

someone.    The second statement was that of another juvenile, J.B.,

taken in October 2006.     J.B. said he saw Knighton two times on the

night of the murder, and that he had a revolver with him both

times. On one occasion, J.B. saw Knighton getting into defendant's

truck.


2
 The appellate record also contains an affidavit from defendant's
wife, stating that Knighton twice called her from the jail shortly
after the murder and his arrest. In both calls, Knighton told her
that defendant was not involved in the crime.
     Those portions of the pro se brief defendant filed with the
PCR court, which are in the appellate record, make no argument
regarding this affidavit.     The judge did not reference this
affidavit or address any argument about the affidavit in his
written opinion.    We generally refuse to consider issues not
presented to the trial court. State v. Robinson, 
200 N.J. 1, 20
(2009).
     Because defendant's appellate brief makes no argument
regarding this affidavit, we deem such issue to have been waived.
Seeward v. Integrity, Inc., 
357 N.J. Super. 474, 479 n.3 (App.
Div. 2002).


                                    5                             A-3631-14T3
    At oral argument on the petition, PCR counsel only asked the

court to consider the arguments made in his and defendant's pro

se briefs and requested an evidentiary hearing.      He otherwise

submitted on the papers.3   In a written opinion, the PCR judge,

who was also the trial judge, denied the petition without an

evidentiary hearing.

    Before us, defendant raises the following arguments:

         POINT I

         THE COURT ERRED IN DENYING AN EVIDENTIARY
         HEARING.

         POINT II

         COUNSEL WAS INEFFECTIVE IN COERCING DEFENDANT
         TO GIVE UP HIS RIGHT TO TESTIFY.

         POINT III

         COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO
         DETECTIVE FUENTES REMAINING IN THE COURTROOM
         DURING TESTIMONY OF STATE'S WITNESSES, AND THE
         COURT ERRED IN NOT ADDRESSING THE CLAIM.

         POINT IV

         THE COURT ERRED IN FINDING COUNSEL NOT
         INEFFECTIVE FOR FAILING TO CALL [D.W.] AND
         [J.B.] AS WITNESSES.




3
  Although defendant's pro se submissions    are in the appellate
record, whatever was submitted by PCR        counsel, except for
defendant's supplemental certification, is   not. However, in his
written decision, the judge summarized the   arguments made by PCR
counsel in his brief.

                                6                          A-3631-14T3
            POINT V

            THE COURT ERRED IN FINDING COUNSEL NOT
            INEFFECTIVE FOR FAILING TO OBJECT TO THE
            RELEVANCE OF THE CVS LOSS PREVENTION PURCHASE
            REPORT.

            POINT VI

            THE COURT ERRED IN FINDING COUNSEL NOT
            INEFFECTIVE FOR FAILING TO BRING TO THE
            COURT'S ATTENTION THE BEHAVIOR OF JUROR NO.
            9.

            POINT VII

            COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT
            TO THE RESPONSE TO THE JURY NOTE AND APPELLATE
            COUNSEL WAS INEFFECTIVE IN ARGUING THE ISSUE.

We affirm.

      To establish an IAC 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).         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).

      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

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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).    We apply the same standard to a defendant's claims

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)).

      Our Rules anticipate the need to hold an evidentiary hearing

on IAC claims "only upon the establishment of a prima facie case

in support of post-conviction relief."              R. 3:22-10(b).      A "prima

facie   case"   requires      a     defendant    "demonstrate    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" ibid., and must be supported by "specific facts and

evidence supporting his allegations."               State v. Porter, 
216 N.J.
 343, 355 (2013).       "[W]e review under the abuse of discretion

standard the PCR court's determination to proceed without an

evidentiary hearing."        State v. Brewster, 
429 N.J. Super. 387, 401

(App. Div. 2013) (citing State v. Marshall, 
148 N.J. 89, 157-58

(1997)).

      We conclude the arguments made in Points II, III, V, VI and

VII lack sufficient merit to warrant extensive discussion in a

written opinion.      R. 2:11-3(e)(2).          We add only the following.



                                         8                                A-3631-14T3
     The    record   belies    any   claim   that   trial   counsel   coerced

defendant into not testifying.         Defendant argues it was improper

for Detective Fuentes, who remained in the courtroom to assist the

assistant prosecutor, to hear the testimony of other witnesses

before the State recalled Fuentes as a witness.             However, the PCR

judge properly concluded that defendant failed to show how this

prejudiced the defense.         The examples defendant offers in his

brief are entirely unpersuasive.

     Defense counsel's failure to object to the testimony and

records regarding the CVS purchases does not demonstrate deficient

performance.     As the PCR judge found, the evidence was highly

relevant and properly admitted at trial.            See State v. Worlock,


117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal

arguments     does   not      constitute     ineffective     assistance      of

counsel.").

     The PCR judge rejected defendant's claim about a sleeping

juror.   He noted "[t]here is nothing in the record that indicates

a juror was repeatedly sleeping."          See State v. Mohammed, 
226 N.J.
 71, 87-88 (2016) (noting a reviewing court should defer to the

judge's personal observations that a juror was not asleep).                The

judge concluded the three affidavits were unpersuasive because,

among other things, they failed to "mention . . . how long or

short a period of time the alleged sleeping went on and all use[d]

                                       9                              A-3631-14T3
the   term    'possibly    sleeping.'"         We   agree   with   the    judge's

conclusions.

      On   direct    appeal,   defendant       argued   the    judge     erred    in

responding to a jury request for playback of several witnesses'

testimony.      Prather, slip op. at 3.         We concluded that the judge

should have solicited comments from counsel as to how to respond

before responding, but we found no error in the judge's actual

response.       Id. at 30.      In short, appellate counsel was not

deficient because she actually did raise this issue on direct

appeal, and trial counsel did not render deficient performance by

failing to object, because there was no error in the judge's

response to the jury's request.             Worlock, 
117 N.J. at 625.

      In     Point   IV,   defendant    argues      trial     counsel    provided

ineffective assistance because he failed to call D.W. and J.B. as

witnesses at trial.        According to J.B.'s statement, Knighton had

a gun before the murder, which was inconsistent with Knighton's

testimony at trial.        Prather, slip op. at 17.           However, the PCR

judge correctly observed that J.B.'s statement placed an armed

Knighton and defendant together in defendant's truck on the day

of the murder. That testimony would have been, as the judge noted,

"very inculpatory."

      Additionally, R.B., J.B.'s mother who witnessed the statement

her son gave to police, testified at trial as a State's witness.

                                       10                                  A-3631-14T3
R.B. testified that she saw Knighton with a gun on the night of

the murder and he was getting into a car with defendant.      There

was no reason for defense counsel to call J.B., whose testimony

would have been cumulative and inculpatory.

    D.W. told police that he saw Knighton with a gun a few nights

before July 6, 2006, and Knighton was looking to rob someone.     At

trial, Knighton admitted shooting the victim during a planned

robbery and having the gun after the shooting.   Prather, slip op.

at 15-17.   The decision not to call D.W. as a witness fails to

support any claim that counsel's performance was deficient.

    Affirmed.




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