On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0420.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Simonelli and Koblitz.
Defendant Maurice McKinnon appeals from the October 13, 2010 Law Division order, which denied his motion for post conviction relief (PCR). We affirm.
A grand jury indicted defendant for second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (count two); four counts of first-degree criminal attempt to commit murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts three, four, five and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count seven); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight). The charges stemmed from defendant's involvement in the drive-by shooting death of Cheryl Green and wounding of other victims. Defendant's trial strategy was to show there were other suspects the police did not investigate, the State's witnesses who had identified him as the shooter lacked credibility, and the police pressured him to give a statement admitting he shot at the victims.
On November 1, 2005, a jury acquitted defendant on counts one and four. The jury found defendant guilty of the lesser included offenses of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, on count two, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on counts three, five and six. The jury also found defendant guilty of the weapons offenses in counts seven and eight. On January 31, 2006, the trial judge sentenced defendant to an aggregate thirty-four year term of imprisonment with a twenty-eight year, eleven month period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction and sentence. We affirmed, and our
Supreme Court denied certification. State v. McKinnon, No. A-4152-05
(App. Div. April 24, 2008), certif. denied, 196 N.J. 465 (2008).
Defendant timely filed a PCR petition, contending that trial counsel
rendered ineffective assistance by failing to: (1) object to a State's
witness, George Martinez, testifying while shackled;*fn2
(2) investigate defendant's mother and aunt who would have
provided alibi testimony; and (3) object to the trial judge's use of
the instruction on causation for murder in re-charging the jury on
aggravated and reckless manslaughter.
In an October 7, 2010 oral decision, the trial judge denied defendant's PCR petition, concluding that defendant failed to establish the two-prongs set forth in Strickland v. Washington, 466 U.S. 668, 687 104 S. Ct. 2052, 2064 80 L. Ed. 2d 674, 693 (1984). The judge found that State v. Kuchera, 198 N.J. 482 (2009), which prohibits a State's witness from testifying while shackled, did not apply retroactively to this case. He determined that defendant benefited by Martinez testifying while shackled because it helped defendant's trial strategy to discredit this witness.
The trial judge found that defendant presented no certifications from the alleged alibi witnesses. In addition, the judge emphasized that because there was overwhelming evidence of defendant's involvement in the shootings, including defendant's statement, alibi witnesses may have inflamed the jury and resulted in his conviction of the more serious charges. The judge also determined that because the jury acquitted defendant of the more serious charges, he benefited from the judge's use of the instruction on causation for murder when re-charging the jury on aggravated and reckless manslaughter. This appeal followed. On appeal, defendant raises the same arguments he raised before the trial judge.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64.
To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey).
"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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, ...