STATE OF NEW JERSEY v. EARL T. MOORE
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4674-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EARL T. MOORE, a/k/a "B,"
TREMAINE T. MUHAMMAD, TREMAYNE
TAYLOR, TREMAYNE E. MOORE,
STACEY MOORE, TREMAYNE COX,
MOORE COX and SUBOR HARRIS,
Defendant-Appellant.
______________________________
Submitted November 9, 2017 – Decided January 25, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
09-04-1407.
Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the briefs).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Earl T. Moore appeals the May 28, 2015 denial of
his petition for post-conviction relief (PCR). After a review of
the arguments in light of the record and applicable principles of
law, we affirm.
I.
The facts relating to the charges and trial are derived from
our opinion in State v. Moore, No. A-3298-10 (App. Div. Jan. 23)
(slip op. at 3-5), certif. denied,
214 N.J. 235 (2013).
On the night of August 29, 2005, defendant, Lawrence Willis
and Corey Manderville, were driving around together when they
decided to rob Dewey Marshall, who Willis knew to be a drug dealer.
Defendant and Willis were both armed.
Because Marshall knew both Willis and Manderville, defendant
called Michael Coombs to assist in the robbery. Defendant and
Coombs were members of the same faction of the Bloods street gang.
Defendant held a higher rank within the gang than Coombs did and,
therefore, Coombs was required to follow any and all of defendant's
orders.
All four of the men went to Marshall's apartment. Marshall
answered the door and, upon seeing defendant with a gun in his
hand, he attempted to flee. Defendant shot and killed Marshall.
2 A-4674-15T1
Several witnesses identified the individuals, and an
apartment complex surveillance camera captured the events that
occurred outside of the apartment. The bullets retrieved from the
scene and Marshall's head were found to be discharged from the
same firearm, and were from the same type of handgun used by
defendant.
Indictment Number 09-04-1407 charged defendant with one count
of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) (count one); one
count of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (count
two); one count of first-degree armed robbery,
N.J.S.A. 2C:15-1
(count three); one count of second-degree burglary,
N.J.S.A.
2C:18-2(b)(1) or (count four); one count of second-degree
conspiracy to commit armed burglary and/or armed robbery,
N.J.S.A.
2C:5-2, 2C:15-1, and/or 2C:18-2(b)(1) or (count five); one count
of second-degree possession of a weapon,
N.J.S.A. 2C:39-4(a)
(count six); one count of third-degree unlawful possession of a
weapon,
N.J.S.A. 2C:39-5(b) (count seven); one count of third-
degree endangering an injured victim,
N.J.S.A. 2C:12-1.2 (count
eight);1 and one count of second-degree certain persons not to
have weapons,
N.J.S.A. 2C:39-7(b) (count nine).
1
This count was dismissed prior to trial.
3 A-4674-15T1
Prior to the commencement of trial, the State moved to admit
evidence of defendant's history of gang involvement under N.J.R.E.
404(b). The motion was granted.
Defendant was convicted on the eight remaining counts of the
indictment. At sentencing, the court merged counts one, three,
and six with count two. As to count two, the judge sentenced
defendant to life imprisonment, to include the requisite eighty-
five percent period of parole ineligibility pursuant to
N.J.S.A.
2C:43-7. As to count five, the judge sentenced defendant to a
custodial term of ten years, with a five year period of parole
ineligibility. As to count seven, the judge sentenced defendant
to a custodial term of five years, with a two-and-one-half year
period of parole ineligibility. As to count nine, the judge
sentenced defendant to a custodial term of ten years, with a five
year period of parole ineligibility. Defendant's sentences on
counts five, seven, and nine were to run concurrent with
defendant's sentence on count two.
On direct appeal, we affirmed the convictions and sentences.
Moore, slip op. at 28. Defendant thereafter filed a PCR petition.
After hearing oral argument, the PCR court denied the petition
without an evidentiary hearing.
Defendant appeals, arguing:
4 A-4674-15T1
POINT ONE: PREJUDICE IS PRESUMED WHERE THE
INTEGRITY OF THE ADVERSARIAL PROCESS IS AT
STAKE AS IN THE TRIAL ATTORNEY'S FAILURE TO
MINIMIZE THE PREJUDICIAL EFFECT UPON THE JURY
OF TESTIMONY REGARDING THE DEFENDANT'S GANG
AFFILIATION.
POINT TWO: PCR COUNSEL'S FAILURE TO FASHION
AN INEFFECTIVENESS CLAIM UNDER CRONIC DID NOT
MEET THE PROFESSIONAL STANDARD UNDER RULE
3:22-6(d). (NOT RAISED BELOW)
POINT THREE: THE DEFENDANT'S TRIAL ATTORNEY
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
WHERE, AMONG OTHER THINGS, HE DID NOT
INTERVIEW A CREDIBLE ALIBI WITNESS ALTHOUGH
THE WITNESS'S VITAL INFORMATION WAS SET FORTH
IN THE DISCOVERABLE MATERIAL.
POINT FOUR: IN SUMMARY FASHION, THE DEFENDANT
INCORPORATES THE REST OF HIS ARGUMENTS MADE
TO THE PCR COURT.
II.
Where the PCR court has not held an evidentiary hearing, a
de novo review is appropriate. State v. Harris,
181 N.J. 391,
420-21 (2004).
All of defendant's claims allege the ineffective assistance
of counsel. To show ineffective assistance of counsel, a defendant
must satisfy the two-pronged test of Strickland v. Washington,
466 U.S. 668 (1984), which our Supreme Court adopted in State v. Fritz,
105 N.J. 42 (1987). "The defendant must demonstrate first that
counsel's performance was deficient, i.e., that 'counsel made
errors so serious that counsel was not functioning as the "counsel"
5 A-4674-15T1
guaranteed the defendant by the Sixth Amendment.'" State v.
Parker,
212 N.J. 269, 279 (2012) (quoting Strickland,
466 U.S. at
687). In doing so, the "defendant must overcome a strong
presumption that counsel rendered reasonable professional
assistance." Ibid. (citing Strickland,
466 U.S. at 689). Second,
"a defendant must also establish that the ineffectiveness of his
attorney prejudiced his defense. '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 279-80 (quoting Strickland,
466 U.S. at
694).
"A defendant shall be entitled to an evidentiary hearing only
upon the establishment of a prima facie case in support of post-
conviction relief. . . . To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that his or her claim
. . . will ultimately succeed on the merits." R. 3:22-10(b).
However, merely raising a claim for PCR does not entitle defendant
to an evidentiary hearing. State v. Cummings,
321 N.J. Super.
154, 170 (App. Div. 1999).
Where "defendant's allegations are too vague, conclusory or
speculative[,]" the court shall not grant an evidentiary hearing.
R. 3:22-10(e)(2); see also Cummings,
321 N.J. Super. at 170
(reasoning that "bald assertions" of ineffective assistance are
6 A-4674-15T1
insufficient to sustain a claim for PCR or warrant an evidentiary
hearing). Rather, for the court to grant an evidentiary hearing,
defendant "must allege specific facts and evidence supporting his
allegations." State v. Porter,
216 N.J. 343, 355 (2013).
III.
Prior to trial, the trial judge granted the State's motion
to admit the evidence of defendant's gang affiliation as motive
to commit the crime pursuant to N.J.R.E. 404(b). At trial, counsel
did not further object to the introduction of this evidence.
Following the close of testimony, the trial judge instructed the
jury as to the limited use of the character evidence to prevent a
biased verdict.
Defendant now argues that trial counsel's failure to minimize
the prejudicial effect of defendant's gang affiliation amounted
to ineffective assistance of counsel and he urges the court to
find the presumption of prejudice discussed in United States v.
Cronic,
466 U.S. 648 (1984). In Cronic, the Supreme Court held
that when counsel's errors are of such a magnitude that "no amount
of showing of want of prejudice would cure it[,]" it is unnecessary
for a defendant to demonstrate prejudice.
466 U.S. at 659 (quoting
Davis v. Alaska,
415 U.S. 308, 318 (1974)). Cronic has only
applied in the most extreme of cases, such as where trial counsel
was completely absent during jury deliberations and the return of
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the verdict, and where the trial court openly questioned trial
counsel's competence and provoked trial counsel into acts
inconsistent with his duty of client loyalty. See Fritz,
105 N.J.
at 62-63; see also Siverson v. O'Leary,
764 F.2d 1208 (7th Cir.
1985); Wilson v. Mintzes,
761 F.2d 275 (6th Cir. 1985).
The alleged deficiencies with regard to the admission of
defendant's gang affiliation fall far short of those described in
Cronic and its progeny. In defendant's direct appeal, we affirmed
the trial judge's decision to admit the character evidence and
found that the trial court provided the required limiting
instructions to the jury. See Moore, slip op. at 15-16.
Therefore, no prejudice can be presumed from trial counsel's
decision to not challenge the character evidence and subsequent
limiting instruction. The PCR judge correctly found that defendant
was not entitled to post-conviction relief on this basis.
IV.
Defendant also argues that PCR counsel was ineffective for
not seeking review of defendant's claims under the Cronic standard.
For the reasons discussed above, this claim lacks sufficient merit
to warrant discussion, R. 2:11-3(e)(2), and we add only the
following comments. Cronic sets a high threshold for a presumption
of prejudice and the presumption of prejudice will only be found
in very limited circumstances. See Fritz,
105 N.J. at 62. Even
8 A-4674-15T1
if PCR counsel had sought the application of Cronic, the argument
would have been futile.
V.
Defendant asserts multiple additional arguments as to why
trial counsel was ineffective, including not calling an alleged
alibi witness, introducing a prosecution witness as a defense
witness, not engaging in plea negotiations, failing to voir dire
the ballistics expert, not discussing a witness statement with
defendant, and failing to know the outcome of a singular bail
motion. We are not persuaded by these arguments.
The record demonstrates that trial counsel investigated the
presence of the alibi witness - defendant's girlfriend. Trial
counsel stated on the record during a hearing that he had been
"looking into investigation with respect to an alibi [and] . . .
[a]s soon as it was made mention by [defendant] to [him], [he]
utilized the services of the Public Defender's Office in an attempt
to get some more information about that." The decision not to
call the witness was strategic and was likely done because her
testimony would not have been helpful. See Fritz,
105 N.J. at 54
("complaints 'merely of matters of trial strategy' will not serve
to ground a constitutional claim of inadequacy of representation
by counsel.") (quoting State v. Williams,
39 N.J. 471, 489 (1963)).
9 A-4674-15T1
The PCR judge noted in his written decision: "[w]here a
defendant's ineffective assistance of counsel claim is based on a
failure to investigate, the defendant '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 the certification.'" (quoting State v.
Petrozelli,
351 N.J. Super. 14, 23 (App. Div. 2002)). Defendant
did not present any such affidavits or certifications to support
his argument. Without any such supporting facts, defendant failed
to establish a prima facie case of ineffective assistance of
counsel in this regard.
Defendant asserts that trial counsel's decision to recall a
prosecution witness as a defense witness was in error. Again,
that decision was a strategic decision within trial counsel's
purview. By questioning this witness through direct examination
rather than cross-examination, trial counsel could utilize a wider
scope of inquiry regarding the witness's investigation into the
murder. Trial counsel was able to elicit testimony regarding
previous interviews with a witness that could not have been
inquired into on cross-examination. Trial counsel was, therefore,
not ineffective in this regard.
Defendant also argues that trial counsel failed to engage in
meaningful plea negotiations. However, during the May 24, 2010
10 A-4674-15T1
hearing, when asked about attempts to resolve the charges prior
to trial, defendant stated: "[w]e talked about it [and] . . .
[t]hey ain't trying to wheel and deal, so we're going all the
way." As the PCR judge stated, because defendant decided to "go[]
all the way" to trial, counsel was not ineffective. There is no
evidence presented by defendant in the record that he would have
pled guilty to any charge and, as such, defendant failed to
establish that counsel was ineffective with regard to plea
negotiations.
Defendant's next argument, that trial counsel should have
challenged the credentials of the State's ballistics expert, is
also without merit. Trial counsel, faced with a qualified expert,2
made the strategic decision to not challenge the expert's
credentials because doing so may have amplified his qualifications
and bolstered his credibility with the jury. This strategic
decision was not ineffective assistance of counsel.
Finally, defendant argues that trial counsel failed to
properly communicate with him with regard to a witness statement
and the outcome of a singular bail motion. Defendant's arguments
with regard to these issues were unsupported by any evidence in
the record. We are satisfied that the PCR judge correctly found
2
There was no claim in this case that the trial court erroneously
permitted the witness to testify as an expert.
11 A-4674-15T1
that defendant failed to establish a prima facie case of
ineffective assistance of counsel and was, therefore, not entitled
to an evidentiary hearing.
VI.
In asserting his final argument on appeal, defendant simply
incorporates "the remainder of his arguments made to the PCR
court." These remaining claims lack sufficient merit to warrant
discussion, R. 2:11-3(e)(2), and we add only the following
comments. Defendant has failed to present evidence sufficient to
establish a prima facie case of ineffective assistance of trial
and PCR counsel under Strickland-Fritz.
Affirmed.
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