STATE OF NEW JERSEY VS. MELANIE MCGUIREÂ (05-10-0164, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2150-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELANIE McGUIRE,

Defendant-Appellant.

____________________________

Argued March 1, 2017 – Decided August 7, 2017

Before Judges Fuentes, Carroll and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 05-10-0164.

Michael A. Priarone, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr.
Priarone, on the brief).

Daniel I. Bornstein, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Mr.
Bornstein, of counsel and on the brief).

PER CURIAM
 Defendant appeals from the October 2, 2014 order of the trial

court denying her petition for post-conviction relief (PCR)

without granting an evidentiary hearing. We affirm.

I.

Following a twenty-six-day jury trial, defendant was

convicted of murder, N.J.S.A. 2C:11-3, second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), second-

degree desecration of human remains, N.J.S.A. 2C:22-1, and third-

degree perjury, N.J.S.A. 2C:28-1. She was sentenced to an

aggregate term of life in prison, subject to the provisions of the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus five years

with a two-and-a-half year period of parole ineligibility. We

previously related the facts in detail in our affirmance on direct

appeal of defendant's 2007 convictions and sentence. State v.

McGuire, 419 N.J. Super. 88 (App. Div.), certif. denied, 208 N.J.

335 (2011). We note only the following salient facts to provide

context for this appeal.

Defendant, a nurse, plied her husband with chloral hydrate,

fatally shot him, and desecrated his body by cutting it into three

sections, draining the blood and wrapping the body parts in plastic

garbage bags, which were then packed into three matching suitcases

and thrown into the Chesapeake Bay where they were subsequently

found in May 2004. The State's evidence was largely circumstantial

2 A-2150-14T4
and included incriminating internet searches related to fatal

poisons, gun laws and murder on computers seized from defendant's

home; expert testimony linking the plastic garbage bags containing

the decedent's remains to garbage bags found in defendant's home;

evidence that defendant had purchased a handgun and filled a forged

prescription for chloral hydrate a few days before her husband's

disappearance; and evidence that defendant was having an affair

with a co-worker and planning to leave her husband.

In 2011, defendant filed a timely pro se PCR petition and was

assigned counsel who moved to compel discovery to support the

petition. Specifically, PCR counsel requested samples of the

garbage bags containing the decedent's body and the garbage bags

taken from defendant's home. Defendant sought to have the garbage

bags re-tested by her expert to demonstrate that the bags came

from different batches in order to establish a prima facie

ineffective assistance of counsel (IAC) claim through trial

counsel's failure to perform the testing. In addition, PCR counsel

requested a copy of the hard drive from a laptop computer recovered

from the decedent's car. Defendant sought to conduct a search of

the decedent's laptop computer for incriminating internet searches

similar to those found on the desktop computers recovered from

defendant's home to establish that the incriminating searches

3 A-2150-14T4
originated with the decedent and trial counsel was ineffective for

failing to conduct the analysis.

Judge Bradley J. Ferencz acknowledged that State v. Marshall,

148 N.J. 89, 270 (1997), conferred "discretionary authority" on

the PCR court to order the State to supply defendant with relevant,

non-privileged discovery upon defendant's "presentation of good

cause[,]" but ultimately denied defendant's motion to compel

discovery in a cogent written decision. Judge Ferencz concluded

that "even if the [d]efense were to re-examine the evidence and

determine that the bags were from different batches, or similar

searches were made on the laptop, the defense [could] still not

prove that trial counsel's failure to conduct these tests was

ineffective assistance of counsel."

Judge Ferencz explained:

Consider the fact that if trial counsel
had the garbage bags tested originally, those
tests may have demonstrated that the bags were
of the same batch. Then, the defense would
have no expert to rebut the findings of the
State's two experts because they could not
ethically then send an expert to swear to
testimony they knew to be false, or at least
disingenuous. Trial counsel made the
reasonable strategic decision to not risk
their own expert finding conclusive,
indisputable evidence that the bags were the
same. Instead, counsel [chose] to attack the
credibility and conclusions of the State's
expert in [an] attempt to undermine their
findings and find reasonable doubt in the

4 A-2150-14T4
 State's case. And under Strickland,1 that
reasonable decision would not amount to
ineffective assistance of counsel. It in fact
was a sound strategic position for counsel to
take. Accordingly, if this issue were to come
before the [c]ourt on post-conviction relief,
even with expert findings that the bags were
from different batches, the [c]ourt could not
find that it was ineffective assistance of
counsel for trial counsel to make the
competent and good strategic decision not to
have their expert re-test the bags.

The same holds true of the laptop hard
drive. At the time of trial[,] defense
counsel recognized that there was a very good
chance that the laptop would show . . . no
incriminating internet searches. Instead [of]
foreclosing his argument, defense counsel
legitimately chose to argue the inference that
[the] laptop could have contained similar
searches. And the absence of proof, along
with the defense computer expert's testimony
that the searches were conducted close in time
to hits for [the decedent's] favorite
websites, was favorable testimony to the
defense that supported their theory of the
case. Therefore no matter what the defense
finds as a result of new investigation of the
requested items, it was still reasonable trial
strategy at the time of trial and nothing the
defense can offer from further investigation
will buttress their ineffective assistance
claim.

As to the substantive PCR claims, defendant argued to the PCR

court that she was denied effective assistance of counsel because

trial counsel failed to consult and retain appropriate expert

1
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).

5 A-2150-14T4
witnesses and failed to call fact witnesses critical to her

defense. Defendant submitted various certifications to support

her claims. Regarding the expert witnesses, defendant argued that

trial counsel failed to call (1) a ballistics expert to counter

the State's evidence that the gun she purchased was consistent

with the bullets recovered from the decedent's body; (2) a

pharmacologist to present an alternate theory for the presence of

chloral hydrate in the decedent's car to counter the State's theory

that defendant used the sedative to sedate the decedent before

shooting him; and (3) an expert in luminol to rebut the State's

contention that defendant could have rid her apartment of all

traces of blood resulting from the murder and dismemberment of the

decedent. In addition, defendant argued that trial counsel failed

to authorize her computer expert to review the entire internet

search history of her home desktop computer to find incriminating

searches attributable to the decedent. Defendant also argued that

trial counsel failed to retain additional experts because a

provision in the supplemental retainer agreement, which reduced

the attorney's fee with the retention of additional experts,

created a conflict of interest and a disincentive to trial counsel

retaining additional experts.

Regarding the fact witnesses, defendant argued that trial

counsel failed to call (1) her neighbor to testify to the heated

6 A-2150-14T4
argument she overheard in defendant's apartment; (2) the

maintenance supervisor of her apartment complex to testify to the

lease requirement that walls be returned to white upon termination

of the lease; and (3) co-workers from her workplace, Reproductive

Medical Associates (RMA), to testify that the patient information

computer database could be accessed remotely to create doubt that

she forged the prescription for chloral hydrate. Defendant also

argued that trial counsel failed to present evidence of the

decedent's training in pharmacology to support a claim that he was

using chloral hydrate to combat steroid use. Defendant asserted

that her claims, individually or cumulatively, warranted an

evidentiary hearing.

In a comprehensive and well-reasoned written decision, Judge

Ferencz determined that defendant failed to establish a prima

facie case of ineffective assistance of counsel under Strickland,

supra, to warrant relief or an evidentiary hearing. Judge Ferencz

concluded defendant failed to show that trial counsel's

representation fell below an objective standard of reasonableness,

and failed to establish a reasonable probability that, but for

counsel's alleged unprofessional errors, the outcome of her trial

would have been different had the witnesses or the evidence been

presented to the jury.

7 A-2150-14T4
 Initially, Judge Ferencz recounted that, at trial, there were

sixty-four witnesses presented by the State and sixteen additional

witnesses presented by the defense. "Twenty-one of the witnesses

who testified were qualified by the [c]ourt as experts in a variety

of fields and specialties." Judge Ferencz then addressed

defendant's arguments seriatim. First, in rejecting defendant's

argument that trial counsel was ineffective for failing to call a

ballistics expert to contradict the testimony of the State's

experts, Judge Ferencz stated:

During trial, the State called two ballistics
experts who testified that the two bullets
recovered from the victim's body were .38
Special caliber and had been fired from the
same firearm, which had six lands and grooves
that were inclined to the right. [Defendant]
claims that in preparation for the instant
petition for post-conviction relief, she
consulted Dr. Peter De Forest, an expert in
the field of ballistics. Dr. De Forest,
unlike the State's experts at trial, "entered
the specific model number of the gun
[defendant] purchased" into a search of the
FBI's general rifling class characteristics,
producing results for "three Taurus .38
Specials, Model 85B2," all of which "fired
bullets with five, not six, lands and
grooves." [Defendant] maintains that if her
trial attorneys had consulted with an expert
such as Dr. De Forest, the expert might have
established that the particular gun she
purchased most likely had five lands and
grooves, whereas the bullets recovered from
the victim's body had six.

However, . . . [o]n direct appeal,
[defendant] made this argument and attempted

8 A-2150-14T4
to supplement the record with information
obtained from the website of the manufacturer
of the gun she purchased, Taurus International
Manufacturing, Inc. (TIMI). In response, the
State provided the Affidavit of Robert
Morrison, President and Chief Executive
Officer of TIMI. . . .

Mr. Morrison attested . . . parts and
tools containing five and six lands and
grooves are, and always have been, used
interchangeably in the production of Model 85
handguns; . . . all Model 85 handguns have
either five or six lands and grooves, but
because the factory sometimes uses tools and
parts that [have] five lands and grooves, and
sometimes uses tools and parts that have six
lands and grooves, there is no way of knowing
whether the revolver at issue has five lands
and grooves or six lands and grooves; . . .
because neither the tooling nor the barrels
used in the Model 85 are serialized, it is not
possible to determine the number of lands and
grooves which were cut into the barrel of the
revolver at issue . . . without examining the
weapon itself; . . . defendant's revolver
could have had either five or six lands and
grooves when it left the factory; . . .
although the manufacturer's website indicates
that the revolver at issue . . . had five
grooves, the "technical information listed on
TIMI's website is subject to change and should
not be relied on as accurate;" and . . . the
TIMI website is "under constant revision," and
data on the site contains erroneous
information. . . .

Without the availability of
[defendant's] gun for inspection, which is the
only way to accurately determine the number
of lands and grooves it contained, expert
testimony such as that of Dr. De Forest lends
no credence to [defendant's] claim[.]

9 A-2150-14T4
 Next, in rejecting defendant's argument that trial counsel

was ineffective for failing to call a pharmacologist to present

an alternate theory for the presence of chloral hydrate in the

decedent's car, Judge Ferencz noted:

[Defendant] asserts that in an interview with
the police, the victim's sister . . . "[t]old
police that she was concerned about her
brother's health" because "he had been showing
signs of what she believed might be steroid
abuse," such as weight gain, balding, and an
enlarged head. [Defendant] argues that her
trial attorneys should have consulted an
expert such as Dr. David Benjamin, a forensic
pharmacologist and toxicologist, who
speculates that if the victim was using GHB
(gamma hydroxyl-butryrate) for body building
or other purposes, then he could also have
been taking chloral hydrate to counteract the
symptoms of GHB withdrawal. . . .

[However], there was no evidence
presented from which a jury could infer that
the victim was using steroids or GHB.
Moreover, the victim's sister testified that
she "had no knowledge of any drug use by [the
victim]," that he "was not in too good of shape
anymore," and although he had purchased a
"weight set" the year before, she did not know
if he ever "used it." . . . Therefore, it is
unlikely that an expert witness would have
been permitted to testify to a wild
speculation that has no support in the record.

In rejecting defendant's argument that trial counsel was

ineffective for failing to call an expert in luminol, Judge Ferencz

recounted that, "[d]uring trial, the State addressed the fact that

no bloodstains or other biological evidence was found in the

10 A-2150-14T4
McGuire apartment by eliciting testimony from forensic scientists"

that "blood and tissue can be cleaned up[.]" Judge Ferencz pointed

out that trial counsel subjected these forensic scientists to

withering cross-examination "in order to highlight the fact that

scientists and forensic investigators have the technological

capability to detect even trace quantities of DNA from blood or

tissue that would otherwise be undetectable to the naked eye."

Judge Ferencz explained:

[Defendant's] trial counsel engaged in
. . . extensive cross-examination for the
purpose of convincing the jury that the murder
and dismemberment of [the victim] could not
have occurred inside the McGuire apartment,
since multiple searches, utilizing the most
technologically advanced tools available to a
forensic scientist, yielded no DNA evidence.
Accordingly, calling an additional witness
such as Dr. Benjamin for the purpose of
testifying to one such tool by name, i.e.,
luminol, would have been unnecessary and
perhaps even redundant. . . . [T]he decision
not to call an expert on luminol was a sound
trial strategy counsel carefully employed as
the evidence needed was already before the
jury, and therefore [defendant] is unable to
prove that her counsel was ineffective
pursuant to State v. Arthur, 184 N.J. 307
(2005).

In rejecting defendant's argument that trial counsel was

ineffective for not authorizing her computer expert to review the

entire internet search history of her home desktop computer, Judge

Ferencz elaborated:

11 A-2150-14T4
[Defendant] contends that if her trial
attorneys had authorized a search of the
entire internet history, rather than a limited
search confined to the six-day period reviewed
by the State's expert, they would have
discovered that on January 21, 2004, someone
performed searches for "poison your wife" and
"poison," and someone accessed websites with
the following titles:
"www.unfaithfulwife.net";
www.poisonprevention.org"; and
www.poison.org".

However, this argument also fails to
establish a prima facie case of ineffective
assistance of counsel. First, the existence
of those searches on the computer in no way
proves that [the victim] conducted them, or
that [defendant] did not. As the State's
computer experts testified, "one of the most
difficult parts of computer forensics is
trying to put someone at the keyboard," and
that there is "no way of knowing whether
someone else in the household jumped on the
computer for a few minutes to do a search and
then let the prior person return to what they
were doing." . . .

Lastly, and most significantly,
[defendant] fails to appreciate that the
decision to limit the search to the six-day
timeframe prior to the murder was most likely
a strategic one. At trial, [defendant's]
counsel was able to challenge the State's
contentions regarding the incriminating
searches found on the computer by presenting
an expert of their own. This defense witness
testified that some of these incriminating
searches were made within minutes of other
searches, thus supporting defense counsel's
argument that the searches were more likely
to have been conducted by [the victim].
Authorizing a search of the entire internet
history on the McGuire computer could have
undercut this defense insofar as it could have

12 A-2150-14T4
 revealed other incriminating evidence linking
[defendant] to the crime. This was a risk
trial counsel most likely did not wish to
take, and accordingly the decision to limit
the search constituted sound trial strategy
pursuant to State v. Arthur[, supra].

In addressing defendant's supplemental retainer agreement

conflict of interest argument, Judge Ferencz distinguished State

v. Norman, 151 N.J. 5 (1977), cert. denied, 534 U.S. 919, 122 S.

Ct. 269, 151 L. Ed. 2d 197 (2001), where our Supreme Court granted

defendant's PCR petition. There, the Court recognized that "the

unusual fee arrangement" whereby defendant's attorney fees were

paid by a co-defendant who could be implicated by the defendant's

testimony created "a significant conflict [of interest] and strong

likelihood of prejudice." Id. at 34-36.

Here, Judge Ferencz expounded:

Under the terms of the supplemental agreement,
[defendant] contends, "the cost of retaining
experts diminishes the size of the fee for the
attorney," arguably creating a disincentive
for her trial counsel to expend the funds on
additional witnesses and investigation and
producing an inherent conflict of interest.

Nevertheless, there is no legal authority
that supports [defendant's] argument that a
retainer agreement of this sort creates a
conflict of interest and rises to the level
of constitutional ineffective assistance of
counsel. . . . Moreover, [defendant] is unable
to show that she suffered any prejudice from
the retainer agreement. In the first
instance, the supplemental agreement was
signed on March 9, 2007, after [defendant's]

13 A-2150-14T4
 trial was already underway. At this point,
the State and [d]efense would have already
completed their review of discovery and their
pretrial investigation, and would have
submitted their respective lists of witnesses.
However, even assuming that the [d]efense
would have pursued additional witnesses as
[defendant] argues, she has not included any
certification from her trial counsel
indicating that they were concerned that
hiring additional expert witnesses could
reduce the pool of money from which they would
be paid, or that they actually failed to
retain additional experts because of
insufficient funds. Accordingly,
[defendant's] argument is too vague and
speculative to warrant an evidentiary hearing.
Moreover, should [defendant] have run out of
funds, counsel could have petitioned the
Office of the Public Defender for ancillary
services.

Turning to defendant's argument that trial counsel was

ineffective for failing to call her neighbor as a witness to

corroborate her account "that she had gotten into a heated argument

with the victim which caused him to leave the apartment and abandon

her and her children[,]" Judge Ferencz concluded that given "the

weak testimony [her neighbor] would have provided," trial

counsel's decision constituted sound trial strategy. According

to Judge Ferencz, although her neighbor told police "she was

awakened in the early morning hours because she heard a loud

argument[,]" her neighbor "could not recall the exact date when

she heard this argument, nor could she identify precisely where

it was coming from," nor the identity of "the second voice as

14 A-2150-14T4
being positively male or female[.]" Moreover, her neighbor "stated

that because she did not speak fluent English, she could not

understand everything that was said."

Judge Ferencz explained that instead of calling her neighbor

to the stand,

defense counsel cleverly elicited parts of
[her neighbor's] statement that inured to the
[benefit of the] defense through the testimony
of Sergeant Dalrymple. Specifically, defense
counsel highlighted for the jury, through Sgt.
Dalrymple, the fact that [her neighbor] heard
an argument coming from the McGuire apartment,
and urged the jurors to draw an inference that
this corroborated the [defendant's] version of
what occurred. Defense counsel's strategy in
not calling [her neighbor], who would then be
subject to rigorous cross-examination, but
rather eliciting the helpful aspects of her
statement, was reasonable under the
circumstances. Indeed, [her neighbor's]
testimony may have led a jury to believe that
[defendant] had fought with the victim and
that the argument precipitated the murder.

Likewise, Judge Ferencz rejected defendant's contention that

trial counsel was ineffective for failing to call the maintenance

supervisor of defendant's apartment complex "to testify to the

lease requirement that walls must be returned to a white or

eggshell color before a tenant vacates an apartment." Judge

Ferencz acknowledged that defendant believed "the testimony . . .

together with the written lease agreement, could have neutralized

[the] inference and rebutted the State's contention that

15 A-2150-14T4
[defendant] repainted the walls" in order to "conceal the evidence

of her crimes."

However, Judge Ferencz pointed out:

What was significant in [defendant's] case was
not that the walls had been re-painted, but
the fact that the entire Woodbridge apartment
had been bleached, scrubbed and painstakingly
cleaned to eliminate all traces of DNA
evidence. As most lease agreements require
tenants to leave the premises in "broom clean"
condition, this fact would certainly have been
raised by the State on cross-examination of
[the Maintenance Supervisor] to highlight the
excessiveness of [defendant's] "cleaning."
Therefore, defense counsel's decision not to
call [the Maintenance Supervisor] as a witness
was a sound strategy in light of the fact that
his testimony would have done very little, if
anything, to help the [d]efense, and would,
in fact, have opened the door to potentially
more incriminating testimony.

Similarly, Judge Ferencz rejected defendant's argument that

trial counsel was ineffective for failing to call co-workers from

RMA to testify that the patient information computer database

could be accessed remotely. Although defendant maintained that

this information would have "undermined the State's argument that

only [she] had access to the patient information necessary to

produce [the chloral hydrate] prescription," and would have shown

that "it could have been written by [the victim,]" Judge Ferencz

highlighted the flaw in defendant's logic thusly:

First, eliciting such testimony from the RMA
witnesses would not have proven that [the

16 A-2150-14T4
victim] accessed the information, since it was
password-protected and accessible only by the
doctors and nurses who worked for RMA.
Instead, this testimony would have confirmed
that [defendant] had additional ways of
obtaining the patient's information, outside
of [RMA's] offices. However, even assuming
that [the victim] had somehow gained access
to the remote database, this evidence still
would not account for the fact that
[defendant] was the one with access to the RMA
prescription forms, and that nurses at RMA
routinely filled such forms out. In addition,
this testimony would also not account for the
plethora of evidence presented showing that
[defendant] was the one who filled the
prescription. Of particular note is the fact
that (1) [defendant] was a fertility nurse at
RMA with access to the RMA prescription pads;
(2) the prescription for chloral hydrate was
signed by . . . [defendant's] paramour, and
filled in the name of one of [her paramour's]
fertility patients; (3) the forged
prescription was filled at the Walgreens
pharmacy on the same day the victim
disappeared; (4) the Walgreens pharmacy was
located approximately eight minutes away from
the daycare facility where [defendant]
routinely brought her sons; (5) records
indicate that the prescription was filled
approximately twelve minutes after
[defendant] dropped her sons off at daycare
. . . .

Given the overwhelming evidence proving
that it was [defendant] who forged and filled
the prescription for chloral hydrate, it is
unreasonable to believe that presenting
testimony from the RMA witnesses to a jury
would have persuaded them otherwise.

17 A-2150-14T4
 Finally, in rejecting defendant's contention that trial

counsel was ineffective for failing to present evidence of the

decedent's training in pharmacology, Judge Ferencz noted:

[Defendant] maintains that had her trial
counsel properly investigated, they would have
discovered that [the victim] attended the
Rutgers University School of Pharmacy from
1991 to 1994, which would have given him the
"pharmacological knowledge to prescribe
chloral hydrate for symptoms of GHB
withdrawal" as well as "the technical
expertise to write the prescription."
[Defendant] contends that had this information
been presented to the jury, it would have
undermined the State's argument that only she
would have known the sedative properties of
chloral hydrate or had the ability to forge
such a prescription.

However, it is unlikely that presentation
of this evidence would have refuted the
State's proofs that [defendant] was the one
who filled the forged prescription for chloral
hydrate. Moreover, it is unreasonable to
think that the jury would have been persuaded
by the evidence, given the fact that nothing
in the record suggests that [the victim] was
using GHB or suffering from GHB withdrawal.
Regardless of any "pharmacological knowledge"
[the victim] may have obtained ten years prior
to his murder, the record is replete with
evidence that [defendant] had not only the
training to prepare and fill the prescription,
but also the motive and the access to do so.
Moreover, any "pharmacological knowledge" on
the part of [the victim] does not explain the
internet searches discovered on the McGuire
computer, which included search results for
not only "chloral hydrate," but also
"undetectable poisons," "how to purchase
hunting rifles in [New Jersey]," "gun laws in
Pennsylvania," and "how to commit murder."

18 A-2150-14T4
 This appeal followed. Defendant presents the following

arguments for our consideration:

I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO EXAMINE AND TEST A
COMPUTER AND GARBAGE BAGS HELD AS EVIDENCE BY
THE STATE.

II. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AN EVIDENTIARY HEARING ON
DEFENDANT'S CLAIMS.

II.

We review the PCR court's findings of fact under a clear

error standard, and conclusions of law under a de novo standard.

See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied,

545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where

the PCR court's findings of fact are based on "live witness

testimony" we review such findings to determine whether they are

supported by sufficient credible evidence in the record. State

v. Nash, 212 N.J. 518, 540 (2013). However, where, as in this

case, "no evidentiary hearing has been held, we 'may exercise de

novo review over the factual inferences drawn from the documentary

record by the [PCR judge].'" State v. Reevey, 417 N.J. Super.

134, 146-47 (App. Div. 2010) (quoting Harris, supra, 181 N.J. at

421), certif. denied, 206 N.J. 64 (2011). While "[a]ssessing IAC

19 A-2150-14T4
claims involves matters of fact, . . . the ultimate determination

is one of law[.]" Harris, supra, 181 N.J. at 419.

Defendant renews the arguments presented to the PCR court and

asserts that the court erred in denying her motion for discovery

and an evidentiary hearing on her claims of ineffective assistance

of trial counsel. We disagree. Judge Ferencz thoughtfully

addressed each of defendant's arguments in his comprehensive

written decisions. After reviewing these arguments in light of

the record and applicable legal principles, we conclude they are

without merit. We affirm substantially for the reasons set forth

in Judge Ferencz' decisions. We add only the following brief

comments.

"[O]ur Court Rules . . . do not contain any provision

authorizing discovery in PCR proceedings." Marshall, supra, 148

N.J. at 268. "PCR is not a device for investigating possible

claims, but a means for vindicating actual claims[,]" and thus

"[t]here is no postconviction right to fish through official files

for belated grounds of attack on the judgment, or to confirm mere

speculation or hope that a basis for collateral relief may exist."

Id. at 270 (quotations and citations omitted). Nonetheless, "where

a defendant presents the PCR court with good cause to order the

State to supply the defendant with discovery that is relevant to

20 A-2150-14T4
the defendant's case and not privileged, the court has the

discretionary authority to grant relief." Ibid.

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 only if the

defendant has presented a prima facie claim of ineffective

assistance, material issues of disputed fact lie outside the

record, and resolution of the issues necessitate a hearing. R.

3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013), certif.

denied, 228 N.J. 502 (2017). "Rule 3:22-10 recognizes judicial

discretion to conduct such hearings." State v. Preciose, 129 N.J.

451, 462 (1992).

A PCR court deciding whether to grant an evidentiary hearing

"should view the facts in the light most favorable to a defendant

to determine whether a defendant has established a prima facie

claim." Preciose, supra, 129 N.J. at 462-63. "To establish a

prima facie claim of ineffective assistance of counsel, a defendant

must demonstrate the reasonable likelihood of succeeding under the

test set forth in [Strickland, supra, 466 U.S. at 694, 104 S. Ct.

at 2068, 80 L. Ed. 2d at 698], and United States v. Cronic, 466

U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which [our

21 A-2150-14T4
Supreme Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)."

Id. at 463.

Under the Strickland standard, a defendant must make a two-

part showing. Supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693. A defendant must show that trial counsel's

performance was both deficient and prejudicial. State v. Martini,

160 N.J. 248, 264 (1999). The performance of counsel is

"deficient" if it falls "below an objective standard of

reasonableness" measured by "prevailing professional norms."

Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80

L. Ed. 2d at 693-94. This standard of "reasonable competence,"

Fritz, supra, 105 N.J. at 60, "does not require the best of

attorneys[.]" State v. Davis, 116 N.J. 341, 351 (1989).

A defendant must also show that the deficient performance

prejudiced the defense. "'This requires showing that counsel's

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.'" Fritz, supra, 105 N.J. at 52

(quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693). In determining whether defense counsel's

alleged deficient performance prejudiced the defense, "[i]t is not

enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding." Strickland,

supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.

22 A-2150-14T4
 Rather, defendant bears the burden of showing that "there is

a reasonable probability that, but for counsel's unprofessional

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

A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80

L. Ed. 2d at 698; see also Harris, supra, 181 N.J. at 432. In

making a prejudice finding, the PCR court must consider "the

totality of the evidence before the judge or jury" and "a verdict

or conclusion only weakly supported by the record is more likely

to have been affected by errors than one with overwhelming record

support." Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at

2069, 80 L. Ed. 2d at 698-99.

"'Unless a defendant makes both showings, it cannot be said

that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.'" Fritz,

supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant bears the

burden of proving both elements of an ineffective assistance of

counsel claim by a preponderance of the evidence. State v. Gaitan,

209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct.

1454, 185 L. Ed. 2d 361 (2013).

Because of the inherent difficulties in evaluating a defense

counsel's tactical decisions from his or her perspective during

23 A-2150-14T4
trial, "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.'" Strickland, supra, 466 U.S.

at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95 (quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83,

93 (1955)). It is well established that "[i]n matters of trial

strategy, we accord great deference to the decisions of counsel[.]"

State v. Biegenwald, 126 N.J. 1, 56 (1991).

It is axiomatic that one of the most difficult strategic

decisions that any trial attorney must confront is determining

which witnesses to call to the stand. State v. Arthur, 184 N.J.

307, 320 (2005).

A trial attorney must consider what testimony
a witness can be expected to give, whether the
witness's testimony will be subject to
effective impeachment by prior inconsistent
statements or other means, whether the witness
is likely to contradict the testimony of other
witnesses the attorney intends to present and
thereby undermine their credibility, whether
the trier of fact is likely to find the witness
credible, and a variety of other tangible and
intangible factors.

[Id. at 320-21.]

Therefore, like other aspects of trial representation, a

defense attorney's decision concerning which witnesses to call to

24 A-2150-14T4
the stand is "an art," and a court's review of such a decision

should be "highly deferential." Strickland, supra, 466 U.S. at

689, 693, 104 S. Ct. at 2065, 2067, 80 L. Ed. 2d at 694, 697.

Judged by these standards, we agree that defendant failed to

demonstrate "good cause" to compel the State to supply defendant

with discovery, Marshall, supra, 148 N.J. at 270, and failed to

establish a prima facie case of ineffective assistance of counsel

under Strickland to warrant an evidentiary hearing. Preciose,

supra, 129 N.J. at 462.

Affirmed.

25 A-2150-14T4