STATE OF NEW JERSEY v. JAHMELL W. CROCKAM
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0617-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAHMELL W. CROCKAM,
Defendant-Appellant.
_____________________________
Submitted March 3, 2020 – Decided April 14, 2020
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 11-03-0471.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard W. Bailey, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Steven A. Yomtov, Deputy Attorney
General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order entered by the Law Division on January
9, 2018, which denied his petition for post-conviction relief (PCR). For the
reasons that follow, we affirm in part, and remand in part for further
proceedings.
I.
In March 2011, an Ocean County grand jury charged defendant with first-
degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), with aggravating factors of
murder of a public servant, N.J.S.A. 2C:11-3(b)(4)(h), and murder to escape
detection, N.J.S.A. 2C:11-3(b)(4)(f); second-degree possession of a handgun for
an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). Thereafter, defendant was tried
before a jury.
At the trial, evidence was presented showing that in December 2010, the
Lakewood police unsuccessfully attempted to locate defendant at his girlfriend's
apartment. At the time, there were two outstanding warrants for his arrest. On
January 14, 2011, the police again attempted to locate defendant. A detective
contacted Tonya Cook, the owner of the home where defendant had been living.
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The detective asked Cook where he could find defendant. She said she did not
know.
Cook then called defendant's girlfriend and asked if she knew where
defendant could be found because the police were looking for him. Defendant's
girlfriend said she did not know; however, defendant was with her at the time
listening to the call on a speaker phone. Defendant's girlfriend gave defendant
his .38 caliber revolver and told him to leave because she did not want any
trouble. Defendant left around 4:00 p.m.
At about that time, Officer Christopher Matlosz of the Lakewood police
force was on patrol and encountered defendant. He had a brief conversation
with defendant. A man was standing nearby. He saw defendant start to walk
away and heard Matlosz tell defendant he had to come with him. According to
the witness, defendant said, "oh man."
The witness stated that Matlosz briefly turned away and appeared to be
speaking on a cellphone or radio. Defendant walked back to the police car,
removed a .38 caliber handgun from his pocket, and shot Matlosz in the neck.
Defendant leaned towards the driver's side window and fired two more shots,
which struck Matlosz in the head at point-blank range. Defendant fled on foot.
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Defendant called his friend Quamel Peteet and told him he "got in some
bullshit" and needed a ride. Peteet, Peteet's girlfriend, and Daniel Bergamotto
picked up defendant. He asked them to give him a ride to Camden. During the
trip, defendant said he shot a cop in the head and killed him. They dropped
defendant at the apartment of a friend, Angel Howard. Defendant told Howard's
boyfriend that he was wanted for killing a police officer.
Sometime later, defendant's friend Corey Rua came to Howard's
apartment. Defendant told Rua he killed a cop and the police were looking for
him. Thereafter, defendant told another friend that he shot a police officer,
claiming that the officer had been reaching for his gun. Defendant gave the gun
to this individual. Defendant drove with him to a pier and they threw the gun
into the Delaware River.
The investigation led the police to defendant. On January 16, 2011, the
police arrested defendant at Howard's apartment in Camden. While in jail,
defendant told three inmates that he had killed Matlosz and he provided specific
details about the shooting. Defendant reportedly stated that one of the shots was
"up close and personal." One of the inmates said defendant told him that in the
months before the shooting, defendant knew there were warrants for his arrest
and he was thinking of killing a police officer.
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Defendant gave a recorded statement to the police. He admitted that he
was in the area where the shooting occurred and that he saw the officer who was
shot. He stated, however, that he went to Camden on the afternoon of January
14, 2011, and only learned about the shooting while watching reports on the
television.
The jury found defendant guilty of first-degree murder, with the two
aggravating factors charged in the indictment. The jury also found defendant
guilty of second-degree possession of a handgun for an unlawful purpose and
second-degree unlawful possession of a weapon. The trial judge later sentenced
defendant to life imprisonment without parole.
Defendant appealed from the JOC dated March 22, 2012. In that appeal,
defendant raised the following arguments:
POINT I
A GROSSLY SUGGESTIVE CELL-PHONE
PICTURE OF DEFENDANT WHICH WAS SENT TO
AN EQUIVOCATING KEY EYEWITNESS FROM
HIS SON-IN-LAW'S "S.W.A.T. BUDDY," SHOULD
NOT HAVE BEEN ADMITTED INTO EVIDENCE
SINCE IT WAS UNRELIABLE HEARSAY AND
DIRECTLY RESULTED IN AN IDENTIFICATION
OF DEFEDNANT AS THE SHOOTER.
POINT II
THE ADMISSION OF DEFENDANT'S PURPORTED
STATEMENT THAT HE WAS GOING TO KILL A
COP BEFORE GOING TO JAIL, AS WELL AS
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ADMISSION OF UNRELATED ARREST
WARRANTS WAS INADMISSIBLE PRIOR BAD-
ACTS EVIDENCE AND, IN ANY CASE, WAS FAR
MORE PREJUDICIAL THAN PROBATIVE,
ESPECIALLY SINCE MOTIVE WAS NOT AN
ISSUE.
We affirmed defendant's conviction. State v. Crockam, No. A-4400-12
(App. Div. February 3, 2018). The Supreme Court denied defendant's petition
for certification. State v. Crockam, 228 N.J. 245 (2016).
Thereafter, defendant filed a petition for PCR alleging ineffective
assistance of counsel. The trial court assigned counsel for defendant and counsel
filed a letter brief in support of defendant's petition. In that brief, PCR counsel
argued that the petition was timely. Counsel also argued that defendant was
denied the effective assistance of counsel because his trial attorney failed to call
defendant's grandmother as a witness at trial and obtain her cellphone records.
PCR counsel noted that at trial, the State had argued defendant knew there
was an outstanding warrant for his arrest, and defendant shot the officer to avoid
capture. PCR counsel noted, however, that defendant claimed that a month
before the shooting, he used his grandmother's cellphone and contacted the
Ocean County Sheriff's Department (OCSD) to inquire whether he had any
outstanding warrants.
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PCR counsel noted that defendant had alleged that the OCSD informed
him there was no such warrant and that up until the time of the shooting,
defendant had no information to the contrary. According to PCR counsel,
defendant further alleged that his grandmother's cellphone records would have
substantiated this claim.
In addition, PCR counsel argued that the State had called five witnesses
who testified that they heard defendant admit to shooting the officer: Pateet,
Bergamatto, Rua, Howard, and Cook. Defendant claimed the detectives learned
the identities of these witnesses by making an illegal search of his grandmother's
cellphone.
PCR counsel argued that if called to testify, defendant's grandmother
would have testified that the police took her phone without a warrant or her
consent and thereafter unlawfully searched its contents. Counsel asserted that
the phone contained identifying information about the five witnesses called to
testify against him. He argued that trial counsel should have filed a motion to
suppress the testimony of these witnesses.
The judge heard oral argument and thereafter filed a written opinion. The
judge found defendant's petition was timely. The judge also found defendant
had not presented a prima facie case of ineffective assistance of counsel, under
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the two-prong test established in Strickland v. Washington, 455 U.S. 668, 687-
98 (1984), which our Supreme Court had adopted in State v. Fritz, 105 N.J. 42,
58 (1987), for consideration of ineffective-assistance-of-counsel claims under
the New Jersey Constitution.
The judge found that defendant failed to show that his trial counsel erred
by failing to obtain his grandmother's cellphone records. The judge noted that
these records would only have proven that a call was made. The records would
not show that the OCSD had informed defendant there was no outstanding
warrants for his arrest, as defendant claimed.
The judge observed that on the day of the shooting, the Lakewood police
called Cook and asked where they could find defendant. Cook called defendant's
girlfriend and told her the police were looking for defendant. She asked
defendant's girlfriend if she knew where defendant could be found. Defendant's
girlfriend said she did not know; however, defendant was with her at the time.
He heard the call on the speaker phone.
The judge pointed out that this evidence showed that "regardless of
whether he knew there was a warrant out for his arrest[,]" defendant knew the
police were looking for him. The judge found this evidence refuted defendant's
claim that he had no motive to shoot the officer.
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The judge also stated that defendant had not presented any evidence to
support defendant's claim that his trial attorney erred by failing to suppress the
testimony of the five witnesses who testified that they heard defendant admit to
shooting the officer. The judge noted that defendant had not presented an
affidavit or certification supporting his claim that the State learned the identities
of these witnesses during an illegal search of his grandmother's cellphone.
The judge had given defendant additional time to supplement the record.
According to the judge, defendant provided an unsworn statement from his
grandmother, indicating that she gave the police her cellphone. The judge
pointed out that defendant's grandmother did not mention anything about
obtaining witness-contact information from her phone.
The judge found that defendant had not presented any evidence to show
the police obtained the identifying information unlawfully. The judge stated
that defendant had "offered nothing to refute the many valid ways in which a
full-scale law enforcement investigation of a major crime could identify
witnesses."
The judge concluded that defendant did not present a prima facie case of
ineffective assistance of counsel. Therefore, he was not entitled to an
evidentiary hearing. The judge wrote:
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[Defendant's] claim that police officers illegally
searched his grandmother's phone is not supported by
any evidence. [Defendant's] argument that he lacked
the motive to kill a law enforcement officer because he
did not know there was a warrant out for his arrest is
not persuasive. [Defendant] knew the police were
looking for him when he listened to the phone call made
to [his girlfriend] on speaker. Second, there were
multiple witnesses at trial who testified that [defendant]
admitted killing Officer Matlosz or testified that
[defendant] would only go back to prison for killing a
law enforcement officer. Third, the State presented
overwhelming evidence of [defendant's] guilt at the
trial that this [c]ourt feels would not have been able to
be overcome by any of the aforementioned "bald
assertions" made by [defendant].
The judge entered an order dated January 9, 2018, denying PCR. This
appeal followed.
On appeal, defendant raises the following arguments:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT
HIS TRIAL ATTORNEY WAS INEFFECTIVE IN
FAILING TO CHALLENGE THE ILLEGAL
SEARCH AND SEIZURE OF THE CELL PHONE.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS, AND PETITIONS FOR POST-
CONVICTION RELIEF.
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B. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL
ATTORNEY FAILED TO CHALLENGE THE
ILLEGAL SEARCH AND SEIZURE OF HIS CELL
PHONE.
POINT II:
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF POST-CONVICTION RELIEF
COUNSEL. (Not Raised Below).
II.
As noted, defendant argues that he established a prima facie case of
ineffective assistance of counsel and the PCR court erred by denying his request
for an evidentiary hearing on his petition. We disagree.
Initially, we note that an evidentiary hearing on a PCR petition is only
required when a defendant presents a prima facie case in support of relief, the
court determines there are material issues of fact that cannot be resolved based
on the existing record, and the court finds an evidentiary hearing is required to
resolve the issues presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R.
3:22-10(b)). "To establish a prima facie case, defendant must 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." R. 3:22-
10(b).
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A defendant asserting a claim of ineffective assistance of counsel must
satisfy the two-part test established in Strickland, 466 U.S. at 687-98, and
adopted in Fritz, 105 N.J. at 58. Under that test, a defendant first "must show
that counsel's performance was deficient." Strickland, 466 U.S. at 693. The
defendant must establish that the attorney's performance "fell below an objective
standard of reasonableness" and "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Ibid.
The defendant also must show "that the deficient performance prejudiced
the defense." Ibid. To establish prejudice, the defendant must establish "there
is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 698. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome"
of the matter. Ibid.
Here, defendant claims he was denied the effective assistance of counsel
because his attorney failed to move to suppress evidence obtained in a search of
a cellphone taken from the family residence. He now alleges the phone was his.
He claims that when the detectives searched the phone, they learned the
identities of the five witnesses who testified at trial that he admitted killing
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Matlosz. He alleges the evidence was obtained illegally without a warrant and
consent of his grandmother, who allegedly was the owner of the account.
In support of this claim, defendant submitted a certification dated October
27, 2017, in which he stated that he told his trial attorney the information "the
police said came from a cell phone I was using was taken without permission."
He said no one who was present when the officers came to the residence gave
them permission "to go through" the cellphone.
Defendant stated that his mother told the officers to give the phone back.
He claimed that he told his attorney to call his grandmother, mother, and
stepfather to establish that the police were lying and that they took the phone
without permission. Defendant also stated that he told his attorney to call his
mother to testify she was present when he called the OCSD to ask if he had
warrants. He claimed his attorney never contacted these witnesses.
We are convinced, however, that the record supports the PCR court's
determination that defendant failed to present sufficient evidence to support the
claim that his attorney was deficient because he did not obtain the cellphone
records or call his grandmother, mother, and stepfather as witnesses.
As the judge found, the cellphone records would only have established
that defendant called the OCSD, if such a call was made, as defendant claimed.
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The cellphone records would not substantiate defendant's claim that the OCSD
informed him that he had no outstanding warrants. Furthermore, the cellphone
records would not have refuted other evidence that defendant was aware the
police were looking for him on the day of the shooting.
Moreover, the record shows that defendant did not present sufficient
evidence to support his claim that the police illegally seized and searched the
cellphone. In his certification, defendant claimed the police came to the family
residence and no one present at the time gave the police permission to take the
phone. However, defendant was not present at the time, and he does not have
personal knowledge of what occurred.
Defendant also stated that his grandmother told him she did not give the
police permission to take the phone, but what defendant's grandmother told
defendant is inadmissible hearsay. In addition, defendant claimed his
grandmother would have testified at trial that she was present when he called
the OCSD to inquire as to whether he had warrants. However, he has not
provided an affidavit or certification from his grandmother setting forth these
facts.
Defendant also claims his attorney was deficient because counsel did not
call his mother and stepfather as witnesses. According to defendant, they would
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have testified that the police were lying and that they took his cellphone without
permission. Defendant's mother and stepfather did not, however, submit an
affidavit or certification to substantiate this claim.
We therefore conclude that the PCR court correctly determined that
defendant failed to present a prima facie case of ineffective assistance of counsel
under the Strickland test. The court correctly rejected defendant's claims with
regard to the alleged illegal search of the cellphone or the cellphone records .
The court did not err by denying defendant's request for an evidentiary hearing
on these claims.
III.
Defendant also argues that he was denied the effective assistance of PCR
counsel. He argues that PCR counsel did not list or incorporate all of his claims
in the brief that counsel filed with the PCR court. Defendant contends the matter
should be remanded to the Law Division for another PCR hearing with newly-
assigned counsel.
An indigent defendant is entitled to the assignment of counsel for his first
PCR petition. R. 3:22-6(a). Our court rules further provide in relevant part that
PCR counsel "should advance all of the legitimate arguments requested by the
defendant that the record will support." R. 3:22-6(d).
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Our Supreme Court has explained that when representing a defendant on
a petition for PCR,
counsel must communicate with the client, investigate
the claims urged by the client, and determine whether
there are additional claims that should be brought
forward. Thereafter, counsel should advance all of the
legitimate arguments that the record will support. If
after investigation counsel can formulate no fair legal
argument in support of a particular claim raised by
defendant, no argument need be made on that point.
Stated differently, the brief must advance the
arguments that can be made in support of the petition
and include defendant's remaining claims, either by
listing them or incorporating them by reference so that
the judge may consider them. That procedure, which
will serve to preserve defendant's contentions for
federal exhaustion purposes, is all that is required.
[State v. Webster, 187 N.J. 254, 257 (2006) (emphasis
added).]
"The remedy for counsel's failure to meet the requirements imposed . . . is a new
PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010)
(citing State v. Rue, 175 N.J. 1, 4 (2002)).
In his petition, defendant asserted that he was denied the effective
assistance of trial counsel because counsel did not: (1) challenge the warrant;
(2) seek a cross-racial identification charge; (3) investigate to determine if
certain witnesses received favorable "deals" for their testimony; (4) file a motion
to dismiss the indictment; (5) produce his grandmother, father, and mother for
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the Wade1 hearing, (6) file a motion to suppress all witnesses who identified him
and made statements against him; (7) send an investigator to look into the photo
that was sent out prior to his arrest; and (8) object when a Muslim witness was
sworn by placing his hand on a Bible.
As stated previously, in the supplemental brief, defendant's PCR counsel
only addressed the claims that defense counsel was deficient because counsel:
(1) did not call defendant's grandmother and failed to obtain her cellphone
records, and (2) failed to call defendant's grandmother to show that five
witnesses who testified against him were identified as a result of an illegal
search of her cellphone. PCR counsel did not, however, list or incorporate
defendant's other contentions in his brief. The PCR court did not address these
claims.
We conclude that PCR counsel did not meet the requirements of Rule
3:22-6(d) in his representation of defendant. Therefore, we reverse the PCR
court's denial of relief on the claims that PCR counsel did not list or incorporate
in his brief and which were not addressed by the PCR court. We express no
view as to whether any of these claims have merit.
1
United States v. Wade, 388 U.S. 218 (1967).
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On remand, the PCR court shall assign new PCR counsel for defendant.
The court shall afford counsel the opportunity to submit supplemental
certifications and another brief and permit the State to respond. The court shall
conduct oral argument on the petition and determine if defendant has presented
a prima facie case of ineffective assistance of counsel. If so, the court shall
conduct an evidentiary hearing on defendant's additional claims.
Affirmed in part, reversed in part, and remanded to the Law Division for
further proceedings in accordance with this opinion. We do not retain
jurisdiction.
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