STATE OF NEW JERSEY v. OREADER CALLAWAY

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5304-18

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

OREADER CALLAWAY,

     Defendant-Appellant.
________________________

                   Submitted March 8, 2021 – Decided November 18, 2021

                   Before Judges Hoffman and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No.
                   13-08-0662.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jennifer    Webb-McRae,        Cumberland       County
                   Prosecutor, attorney for respondent (Stephen C. Sayer,
                   Assistant Prosecutor, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

SMITH, J.A.D.

      Defendant appeals from the June 17, 2019 Law Division order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm for the reasons set forth below.

                                          I.

      Because we heard this matter on direct appeal, State v. Callaway

(Callaway I), No. A-4413-14 (App. Div. June 29, 2017) (slip op. at 2-3), we

incorporate its factual narrative for brevity's sake. We recite only those facts

germane to resolving the issues on appeal before us.

      On the morning of June 30, 2012, Barbara Glaspey was asleep in her home

when she suddenly heard a loud noise. She awoke to a man breaking into her

bedroom threatening to kill her. The man gestured, with a covered hand that

was outstretched as though it contained a weapon, and instructed Glaspey to put

all of her jewelry and money into empty pillowcases.

      Meanwhile, Glaspey's neighbor, Scott Lang, noticed what appeared to be

a fire department vehicle (a red truck with white lettering on the side) parked

outside of Glaspey's home.     Fifteen minutes after making this observation,

Glaspey came to his home and told him what had happened to her. Mr. Lang


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then called the police to report the incident and provided them with a description

of the vehicle.

      Shortly thereafter, Officer Gerald McCreery received a call on his police

radio informing him of the reported burglary. The call relayed the details of the

incident, including the description of a red, flat-body pickup truck with white

lettering on the side. Officer McCreery departed for the burglarized home, but

as he neared the location of the reported incident, he noticed a truck matching

the vehicle description parked at a 7-Eleven.

      Officer McCreery immediately turned his vehicle around and pulled into

the 7-Eleven parking lot. He exited his vehicle and verified that the red truck

he observed was nearly identical to the description of the suspect's vehicle.

Looking into the truck's flatbed, the officer saw it contained pillowcases with

valuables stuffed inside, as well as a flat screen TV. Officer Daniel Hider then

arrived on the scene. The record shows that the officers obtained a description

of the suspect from a witness, J.P., who stated that he observed defendant park

and exit the vehicle at the 7-Eleven. The officers were also in possession of

Glaspey's description of the suspect.         Finally, the record also shows that

defendant, who was sweating profusely on a cool day, was apprehended by the

officers near the store shortly thereafter.


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      A grand jury returned Indictment Number 13-08-0662, charging

defendant with first-degree kidnapping, first-degree robbery, third-degree

receiving stolen property, fourth-degree resisting arrest, third-degree terroristic

threats, and second-degree burglary. The trial took place on January 13, 2015,

and the jury convicted defendant of first-degree robbery, second-degree

kidnapping, second-degree burglary, third-degree terroristic threats, and two

counts of receiving stolen property. On February 27, 2015 defendant was

sentenced to life in prison on the count of first-degree robbery, and he also

received a series of lesser concurrent sentences. On direct appeal, we affirmed

as to all issues. See Callaway I.

      Defendant filed a timely PCR application through counsel and added a

supplemental pro se application raising additional issues. The PCR judge, the

Hon. Joseph M. Chiarello, J.S.C., heard argument on June 17, 2019 and denied

defendant's application in its entirety. After thoroughly reviewing the trial

record and the issues disposed of on direct appeal, the judge issued a detailed

and cogent oral opinion with specific findings on each PCR claim.

      The judge first addressed defendant's ineffective assistance of counsel

claim. Defendant maintained that his counsel was ineffective for two reasons:

because counsel "failed to fully investigate the circumstances of his arrest" and


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because of "inconsistencies [in the] testimony from the [arresting] officers."

Regarding the inconsistent testimony, defendant argued that his trial counsel

should have ordered a copy of the Salem County municipal court transcript

because it would have demonstrated these alleged discrepancies and allowed

trial counsel to impeach the credibility of the two officers. The judge found that

the record adequately addressed both claims.

      Specifically, he found that we addressed "the circumstances of the arrest"

in Callaway I by concluding that the totality of the circumstances provided the

officers with probable cause to arrest the defendant. Callaway I, slip op. at 10.

The judge also found, after lengthy oral argument, that there was no inconsistent

testimony from the arresting officers. He determined that that the trial record

showed the officers spoke to the witness at the 7-Eleven together, not separately,

as argued by the defense. Based on the entire record developed at defendant's

trial and subsequent appeal, the judge concluded that failing to obtain the

municipal court transcript was not ineffective assistance of counsel.

      Defendant's PCR application also contained an impermissible bolstering

argument regarding footprint evidence proffered by the State at trial.             In

evaluating this claim, the judge noted that the State's witness did not testify that

the footprint belonged to defendant's shoe, but rather that the footprint she


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observed matched the style of defendant's shoe.           The judge examined the

foundation laid prior to her testimony and found that none of the questions posed

to her constituted bolstering.

       Next, the judge reviewed defendant's pro se claims, including: "not calling

a witness, failing to object to [certain trial] stipulations, failing to call [a] State

witness, and failing to object to the introduction of evidence." The judge

concluded that these claims were unsupported, rendering them "bald assertions."

       Finally, the judge found that if there had been any errors, they were not

prejudicial ones which would have changed the outcome of the trial under

Strickland.1 See State v. Preciose,  129 N.J. 451, 463 (1992). Appealing the

PCR decision, defendant makes the following arguments:

             POINT ONE

             THE PCR COURT ERRED IN DENYING MR.
             CALLAWAY AN EVIDENTIARY HEARING AS
             TESTIMONY IS NEEDED FROM PRE-TRIAL
             COUNSEL REGARDING HER FAILURE TO
             PROPERLY INVESTIGATE AND OBTAIN THE
             SALEM COUNTY 404(B) TRANSCRIPTS AND
             NEW JERSEY STATE POLICE RECORDING TO
             IMPEACH THE CREDIBILITY OF STATE
             WITNESSES. (RAISED BELOW)




1
    Strickland v. Washington,  466 U.S. 668, 694 (1984).
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                                          6
            POINT TWO

            THE PCR COURT ERRED IN DENYING MR.
            CALLAWAY AN EVIDENTIARY HEARING
            REGARDING THE ISSUE OF THE STATE
            BOLSTERING THE CREDIBILITY OF A LAY
            WITNESS. (RAISED BELOW)

                                       II.

      Where a PCR court does not conduct an evidentiary hearing, we "conduct

a de novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake,  444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State

v Harris,  181 N.J. 391, 421 (2004)). When petitioning for PCR, a defendant

must establish he is entitled to "PCR by a preponderance of the evidence." State

v. O'Donnell,  435 N.J. Super. 351, 370 (App. Div. 2014) (quoting Preciose,  129 N.J. at 459).

      We analyze ineffective assistance of counsel claims by using the two-

prong test established by the Supreme Court in Strickland. See Preciose,  129 N.J. at 463; see also State v. Fritz,  105 N.J. 42, 58 (1987). The first prong of

the Strickland test requires a defendant to establish counsel's performance was

deficient. Preciose,  129 N.J . at 463. "The second, and far more difficult, prong

is whether there exists 'a reasonable probability that, but for counsel's




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

Id. at 463-64 (quoting Strickland,  466 U.S. at 694).

      There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Strickland,  466 U.S.  at 689. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors by counsel

undermined the reliability of the proceeding. State v. Drisco,  355 N.J. Super
 283, 289-90 (App. Div. 2002) (citing United States v. Cronic,  466 U.S. 648, 659

n.26 (1984)).

                                       III.

      Defendant argues that his trial counsel was ineffective for failing to pursue

what he argues were inconsistencies in the testimony of Officers McCreery and

Hider regarding facts surrounding the identification of defendant while the

officers were searching for him, prior to his apprehension. We disagree, as this

argument is premised upon facts not in the record. A review of the testimony

indicates that defendant's current recollection is inaccurate.

      While defendant claims that both officers testified as to having been the

only one to speak to J.P. and obtain a description of defendant, the actual

testimony adduced at trial from both officers tells a clearly different, united


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story. Officer McCreery arrived at the 7-Eleven, followed by Officer Hider

shortly thereafter. The officers met at the front of the store, where Officer Hider

then shouted for the customers within to tell them who was driving the red truck

in the parking lot. In response, an individual at the front of the store said out

loud, and in the hearing range of both officers, a description of defendant who

had been seen with the red truck. Both officers then testified consistently at trial

that they heard this description of defendant and acted upon this information.

      This account of the events was clearly articulated by both officers in their

testimony, and the supposed contradictions asserted by defendant are not

supported in the record. Defendant has failed to show ineffective assistance of

counsel where there was no contradiction in the arresting officers' testimony for

trial counsel to exploit. No evidentiary hearing is warranted under these facts.

See State v. Porter,  216 N.J. 343, 355 (2013) (citations omitted).

      We turn to defendant's next argument, in which he contends that the State

improperly bolstered its witness testimony at trial. Our de novo review of the

record leads us to conclude that there was no basis in the record to conduct an

evidentiary hearing, substantially for the reasons set forth by Judge Chiarello in

his comprehensive oral opinion.




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      Any arguments not addressed here are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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