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NOT FOR PUBLICATION WITHOUT THE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-1472-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

COREY CAUTHEN,
a/k/a JAMES MARROW,

     Defendant-Appellant.
________________________

                   Submitted October 7, 2021 – Decided October 20, 2021

                   Before Judges Alvarez and Haas.

                   On appeal from the 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 (Mark Niedziela, Assistant
                   Prosecutor, on the brief).

PER CURIAM
        This post-conviction relief (PCR) case returns to us after remand

proceedings directed by our previous opinion. See State v. Cauthen, No. A-

2789-16 (App. Div. Apr. 27, 2018) (Cauthen II).1 In that decision, we ordered

the trial court to conduct "an evidentiary hearing on defendant's claim that [his]

trial counsel rendered ineffective assistance by failing to investigate and call

[Tanicia] Thompson as an alibi witness" at the trial. Id. at 5.

        On remand, Judge Miguel de la Carrera held a hearing to address this

issue. The State called defendant's trial attorney, Raymond Morasse, Esq. as a

witness and defendant testified on his own behalf. At the conclusion of the

hearing, Judge de la Carrera denied defendant's PCR petition and fully explained

the basis for his ruling in a thorough written decision.

        Defendant appeals from the December 5, 2018 order memorializing the

judge's decision. We affirm.

        As noted in Cauthen II, defendant submitted a certification 2 stating \ he

was with Thompson in her apartment at the time of the shooting that resulted in



1
  We also incorporate herein the procedural history and facts set forth in our
opinion on defendant's direct appeal. State v. Cauthen, No. A-0591-12 (App.
Div. June 9, 2014) (Cauthen I), certif. denied,  220 N.J. 100 (2014), cert. denied,
 577 U.S. 836 (2015).
2
    This certification is dated October 20, 2016.
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the charges against defendant and his co-defendant, Asmar Bease, occurred. Id.

at 2-3. Defendant alleged he told his "trial counsel about his alleged alibi, but

counsel failed to interview Thompson or call her to testify at trial." Id. at 3.

      At the evidentiary hearing, Morasse disputed the information defendant

provided in his certification. Morasse testified he spoke to Thompson on at least

two occasions about the claimed alibi. Both times, Thompson's accounts "didn't

match up with what [Thompson] had told the police" when they interviewed her.

Morasse also spoke to Thompson's friend, Kelly, but "[h]er account also did not

corroborate Ms. Thompson's account in any way." A third individual, Delilah

Bailey, also gave "somewhat contradictory" information concerning defendant 's

location at the time of the shooting.

      Morasse testified he advised defendant Thompson was not a viable alibi

witness and recommended not calling her at trial. Morasse explained that

Thompson "was not a credible alibi witness and [he] was concerned that by

calling her, [Morasse] would not only allow the State to very easily discredit

her, but [he] would harm [defendant] by possibly causing" a prior recorded

statement he gave to the police to be admitted at the trial.

      Morasse was concerned that if Thompson testified contrary to what

defendant told the police in his statement, the State would attempt to introduce


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defendant's statement to rebut her assertions.        Morasse wanted to keep

defendant's statement out of play because he knew it contained "very, very

damning information and statements[,]" including defendant's admissions that

he was a gang member, sold drugs on the day of the shooting, and had other

charges pending against him. Therefore, Morasse made the tactical decision not

to call Thompson as an alibi witness.

        Defendant initially denied that Morasse ever spoke to him about not using

Thompson as a witness. However, he later admitted he asked Morasse about

Thompson and Bailey during a conference and that Morasse told him "they're

not a good look, we're not going to call them."

        Defendant also admitted that before claiming an alibi in his October 20,

2016 certification, he gave co-defendant Bease a certification to use in Bease's

PCR proceeding.3 In that certification, defendant alleged he shot the victim and

that Bease had no role in the incident. When confronted with this inconsistency,

defendant maintained both of his statements were true.

        After observing both Morasse and defendant on the witness stand, Judge

de la Carrera found Morasse's testimony "to be utterly credible in all important




3
    This certification is dated October 21, 2015.
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respects." On the other hand, the judge determined that defendant contradicted

himself throughout his testimony and was "not . . . credible at all."

        Accordingly, the judge ruled that defendant failed to satisfy the two-prong

test of Strickland v. Washington,  466 U.S. 668, 687 (1984), which requires a

showing that trial counsel's performance was deficient and that, but for the

deficient performance, the result would have been different. Because Morasse

adequately investigated defendant's claimed alibi defense, Judge de la Carrera

found

              [t]here was nothing about trial counsel's efforts and
              performances on behalf of . . . defendant which this
              [c]ourt finds to have been objectively unreasonable or
              deficient nor does the [c]ourt find that . . . defendant
              established a reasonable probability that, but for
              [Morasse's] conduct of the trial, (or pre-trial
              proceedings) that the result in this trial would have been
              any different.

This appeal followed.

        On appeal, defendant repeats the same contention he unsuccessfully raised

before Judge de la Carrera and again argues that his "convictions must be

reversed because trial counsel was ineffective for failing to investigate and call

Tanicia Thompson as an alibi witness." This contention lacks merit.

        When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he is entitled to the requested relief.

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State v. Nash,  212 N.J. 518, 541 (2013); State v. Preciose,  129 N.J. 451, 459

(1992). To sustain that burden, the defendant must allege and articulate specific

facts that "provide the court with an adequate basis on which to rest its decision."

State v. Mitchell,  126 N.J. 565, 579 (1992).

       To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland,  466 U.S. at 687; State v. Fritz,  105 N.J. 42, 58 (1987).

Under the first prong of this test, the defendant must demonstrate that "counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland,  466 U.S. at
 687.

       Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different ."

Id. at 694. There is a strong presumption that counsel "rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment." Id. at 690.


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      Moreover, the acts or omissions of counsel of which a defendant

complains must amount to more than mere tactical strategy. Id. at 689. As the

Supreme Court observed in Strickland:

            [a] fair assessment of attorney performance requires
            that every effort be made to eliminate the distorting
            effects of hindsight, to reconstruct the circumstances of
            counsel's challenged conduct, and to evaluate the
            conduct from counsel's perspective at the time.
            Because of the difficulties inherent in making the
            evaluation, a court must indulge a strong presumption
            that counsel's conduct falls within the wide range of
            reasonable professional assistance; that is, the
            defendant must overcome the presumption that, under
            the circumstances, the challenged action "might be
            considered sound trial strategy."

            [Ibid. (quoting Michel v. Louisiana,  350 U.S. 91, 101
            (1955)).]

      Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford,  213 N.J. 424, 440

(2013) (quoting State v. Robinson,  200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy." Ibid. (alteration in original)

(quoting Robinson,  200 N.J. at 15).


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                                        7
      Having considered defendant's present contention in light of the record

and these well-established principles, we discern no basis for disturbing Judge

de la Carrera's determination that defendant failed to satisfy the Strickland test.

Contrary to defendant's baseless assertions, credible evidence in the record

demonstrates that Morasse fully investigated defendant's alibi and made a sound

tactical decision not to call Thompson as a witness. Accordingly, we affirm the

judge's denial of defendant's PCR petition substantially for the reasons detailed

at length in his written decision.

      Affirmed.




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