STATE OF NEW JERSEY v. WAYNE M. EVANS,

NOT FOR PUBLICATION WITHOUT THE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-5839-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WAYNE M. EVANS, a/k/a
BRUCE EVANS, LAMAR EVANS,
LAMAR GREEN, DWAYNE
EDWARDS, IAMAR GREEN,
SHAWN SPELLMAN, MARK
THOMPSON, WAYNE TOLLER,
BRUCE A. EVANS, WAYNE E.
EVANS, WAYNE L. EVANS,
WAYNE Z. EVANS, and WAYNE
MEACHUM EVANS

     Defendant-Appellant.
______________________________

                   Submit November 18, 2019 – Decided December 3, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 10-06-0661.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Anthony J. Vecchio, Designated Counsel, on
            the brief).

            Lyndsay V. Ruotolo, Acting Union County Prosecutor,
            attorney for respondent (Carlos Paul Morrow, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

PER CURIAM

      After a 2013 trial, a jury found defendant Wayne M. Evans guilty of three

counts of possessory drugs offenses. The trial court sentenced defendant to a

mandatory extended prison term of sixteen years, with an eight-year period of

parole ineligibility. This court upheld defendant's convictions and sentences on

direct appeal, and the Supreme Court denied certification. State v. Evans, No.

A-0771-13 (App. Div. Apr. 8, 2016), certif. denied,  227 N.J. 389 (2016).

      Upon exhausting his avenues for direct appeal, defendant filed in the trial

court a petition for post-conviction relief ("PCR"), alleging his respective

counsel at trial and on direct appeal had been ineffective in various respects.

After considering those contentions, the same judge who had presided over

defendant's trial denied the petition. The judge found no need to conduct an

evidentiary hearing.

      Defendant now appeals the denial of his PCR petition. He presents the

following arguments in his brief:

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            I. THE PCR COURT ERRED IN NOT GRANTING
            DEFENDANT AN EVIDENTIARY HEARING
            WHERE DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL DURING HIS TRIAL.

                  A. Trial counsel was ineffective for failing to
                  object to the prosecutor's bolstering the
                  credibility of Officer D'Amore during
                  summation.

                  B. Trial counsel was ineffective for failing to
                  adequately cross-examine the state's expert
                  witness.

                  C. Appellate counsel was ineffective for failing
                  to raise the issue of the prosecutor's vouching for
                  the state's witness's credibility during summation
                  on direct [a]ppeal.

            II. DEFENDANT'S ARGUMENTS                   ARE     NOT
            BARRED BY RULE 3:22-4.

      For the reasons that follow, we reject these arguments and affirm the trial

court's denial of defendant's petition, substantially for the reasons expressed in

the June 27, 2018 written opinion of Judge William A. Daniel. We add only a

few comments.

      The underlying facts are detailed in our April 2016 unpublished opinion

and we incorporate them by reference here.        Evans, slip op. at 2-3.     The

indictment arose out of a motor vehicle stop in Hillside on March 4, 2010 , in

which police discovered defendant behind the wheel of an SUV idling in the


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middle of the street. After defendant was unable to produce a driver's license

and admitted he did not own the SUV, the police searched the vehicle. They

found inside a plastic baggie containing about twenty grams of cocaine.

Defendant was charged with third-degree possession of a controlled dangerous

substance,  N.J.S.A. 2C:35-10(a)(1); second-degree possession of cocaine with

intent to distribute it,  N.J.S.A. 2C:35-5(a)(1); and third-degree possession of

cocaine with intent to distribute it within a school zone,  N.J.S.A. 2C:35-7. The

jury found defendant guilty of all three counts. Defendant received a mandatory

extended prison term because of his lengthy prior record, which included nine

previous indictable convictions.

      The applicable legal standards for PCR are well established in this setting

involving claims of ineffective assistance of counsel. To obtain relief, the

defendant must prove two critical elements: (1) deficient performance by his

previous counsel, and (2) actual prejudice flowing from that deficient

representation.   Strickland v. Washington,  466 U.S. 668, 694 (1984).           In

reviewing such claims of ineffectiveness, courts apply a strong presumption that

defense counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment."      Id. at 690.

Counsel's strategic decisions do not, in hindsight, support claims of


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constitutionally inadequate representation.     State v. Fritz,  105 N.J. 42, 54

(1987).

      It is also well settled that a PCR petitioner alleging ineffective assistance

of counsel has the burden of presenting a prima facie case of ineffectiveness in

order to obtain an evidentiary hearing. State v. Preciose,  129 N.J. 451, 462-63

(1992). When making that assessment, the court should evaluate the record in

a light most favorable to the defendant petitioner. State v. Jones,  219 N.J. 298,

311 (2014).

      Having considered defendant's arguments on appeal in light of these

standards, we conclude Judge Daniel soundly applied the law in rejecting

defendant's petition without an evidentiary hearing.         We briefly turn to

defendant's specific arguments.

      First, we agree with Judge Daniel that defendant has not shown his trial

attorney was constitutionally ineffective in failing to object to certain comments

made by the prosecutor in closing arguments to the jury. Specifically, defendant

maintains the prosecutor impermissibly bolstered the credibility of a police

officer who had incorrectly recalled the number of officers who had entered the

SUV. The prosecutor reminded the jurors that the events had occurred three

years earlier, and suggested the officer had not lied but instead had an "honest


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                                        5
mis-recollection" about what had occurred.1 We agree with the trial judge this

allegedly improper comment was not likely to have deprived defendant of a fair

trial. As the judge reasoned:

            The State's comments take up seven lines of the
            transcript in comparison to the nineteen pages of the
            State's summation. More importantly, the State utilizes
            its response as a transference of perspective to call into
            question the significance of how many officers entered
            the vehicle in comparison to the bigger picture- the
            Petitioner's guilt, thus minimizing the effect of the
            Prosecutor's comments in regards to the officer.

                   Moreover, this Court adequately addressed the
            State's comments by instructing the jury to not consider
            counsels' summations as evidence, and only to consider
            witnesses' testimony as evidence. The Court also
            instructed the jury that they were permitted to disregard
            testimony they believed to be false. Thus, in light of
            the context of the . . . comments, the corrective measure
            taken by this Court, and the evidence presented against
            the Petitioner, this Court finds the Petitioner's claim of
            ineffective counsel based on trial counsel's failure to
            object to the State's bolstering is without merit.

            [(Internal citations omitted).]

      The judge's analysis is sound, particularly given his special perspective as

the judge who presided over the trial. The prosecutor was attempting to respond



1
  Although defendant cited another instance of bolstering in his PCR petition,
he has not raised that second instance on appeal. In any event, we discern no
basis for relief emanating from that instance either.
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to arguments made by defense counsel in summation suggesting that the

testimony of the police officers was inconsistent on certain points.        The

prosecutor was simply offering a benign reason for the inconsistency. The

prosecutor should not have offered a personal opinion that the officer was not

lying. Even so, the trial judge had reasonable grounds to consider that lapse

inconsequential in the full context of the case, in which the State's proofs of

defendant's illegal possession of the cocaine were strong and virtually

uncontroverted.

      Defendant's second point alleging his trial attorney violated the

constitution by not adequately cross-examining the State's narcotics expert

about the significance of the twenty grams of cocaine is likewise unavailing. As

Judge Daniel pointed out:

            Trial counsel adequately cross-examined the State's
            expert witness, establishing that the cocaine was found
            in a plastic bag with no packaging materials, that those
            in the illegal drug industry try to be clandestine, and
            that by packaging cocaine in a tenth of a gram vials,
            instead of one plastic bag, dealers obtain "the maximum
            buck out of it." During cross-examination Detective
            Fay also acknowledged that although it was uncommon
            to have 20 grams of cocaine for personal use that did
            not mean that it would never happen. This Court finds
            Petitioner's ineffective counsel claim for failure to
            adequately cross-examine is without merit.            The
            question of Petitioner's intent regarding the cocaine was
            a question of fact for the jury to decide.

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            [(Internal citations omitted).]

The judge correctly regarded the manner and depth of defense counsel's cross-

examination as being within the zone of trial strategy. Moreover, as the judge

also noted, the alleged shortcoming of the cross-examination did not manifestly

cause actual prejudice to defendant.

      We further concur with Judge Daniel that defendant's claims of

constitutional ineffectiveness with respect to his counsel on direct appeal also

are devoid of merit. Whether or not these issues were raised on direct appeal,

they would not have changed the outcome.

      Lastly, we affirm the denial of an evidentiary hearing, as none was needed

here in the absence of a prima facie case for relief. Preciose,  129 N.J. at 462-

63.

      Affirmed.




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