STATE OF NEW JERSEY VS. TROY J. HENDERSON (13-09-0786, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3583-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAUN STUKES,

Defendant-Appellant.

__________________________

Submitted April 25, 2017 – Decided May 3, 2017

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
05-10-2240.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michael C. Kazer, Designated
Counsel, on the brief).

Diane M. Ruberton, Acting Atlantic County
Prosecutor, attorney for respondent (Derrick
Diaz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Shaun Stukes appeals from a November 6, 2014 order

denying his petition for post-conviction relief (PCR) after a

three-day plenary hearing, pursuant to our February 5, 2013 remand.

At the hearing, not only did defendant and his trial counsel

testify, but also a sheriff's officer who had been a member of the

jury. Defendant's claim before us is that his lawyer should have

struck this member of the jury pursuant to defendant's request.

We affirm.

After a two-day jury trial, defendant was convicted of second-

degree certain persons not to have a handgun, N.J.S.A. 2C:39-

7(b)(1). He was sentenced to an extended term of fourteen years

in prison with seven years of parole ineligibility.

At the PCR plenary hearing, defendant testified that he

recognized the sheriff's officer as one who "took [him] back and

forth to court" for proceedings on an unrelated offense. According

to defendant, the officer transported him approximately thirty

times over a period of eight years and "took [his] handcuffs and

shackles off plenty of times."

Defendant testified that he told his trial attorney, who

asked him if he wanted to keep the officer on the jury and defendant

responded, "you['re] my lawyer." Defendant also testified, in a

somewhat contradictory fashion, that he told counsel that he did

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not want the officer on the jury and that she told him she could

not do anything because she had run out of jury challenges.

Trial counsel1 testified that as part of her normal practice,

she gave her clients a pen and paper before jury selection began

so they could write any objections they had to potential jurors.

During jury selection, initially defendant wrote a note objecting

to the officer appearing on the jury for the sole reason that the

officer was in law enforcement. She told defendant that the

officer should be left on the jury because he was an intelligent

African-American man, who appeared to have the ability to be

impartial. She further testified that she told defendant that

"it's very difficult to get African-Americans as part of the jury

pool." Counsel testified that after a few minutes, "[defendant]

agreed to accept [the officer]."

She testified that defendant never told her that he knew the

officer as the person who transported him back and forth to court.

She also testified that after their discussion, defendant did not

tell her he wanted the officer excused from the jury. It was her

normal practice to strike a potential juror if her client wanted

the juror stricken, even if she did not agree with the decision.

1Trial counsel testified that she had been disbarred in 2010 based
on a criminal conviction.
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She would not have chosen the officer if defendant had told her

that he wanted the officer stricken.

The officer testified that he was employed as a sheriff's

officer at the courthouse at the time of jury selection. He drove

a bus that transported inmates from the county jail to the

courthouse. When chosen as a juror, he "[v]ery, very vaguely[]"

remembered transporting defendant. He also testified that his

recollection of defendant did not shape or guide his verdict and

that he did not tell his fellow jurors that he was familiar with

defendant.

The PCR court noted that when the defense said it was

satisfied with the jury, three defense challenges remained. The

court further found trial counsel to be credible and defendant's

testimony to be contradictory and incredible.

Defendant raises the following single issue on appeal:

POINT I: THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE TRIAL
COUNSEL'S TESTIMONY THAT SHE FAILED TO
CHALLENGE JUROR [], A SHERIFF'S OFFICER WHO
ADMITTED HAVING A "VAGUE RECOLLECTION" OF
TRANSPORTING DEFENDANT FROM THE ATLANTIC
COUNTY JAIL TO COURT AND BACK, BECAUSE HE WAS
AN AFRICAN-AMERICAN, IN CONJUNCTION WITH POST-
CONVICTION RELIEF CRITERIA REQUIRING THAT
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BE
VIEWED IN A LIGHT FAVORING DEFENDANT,
SATISFIED DEFENDANT'S "PREPONDERANCE OF THE
EVIDENCE" BURDEN OF PROOF.

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 Defendant's petition for PCR arises from Rule 3:22-2(a),

which permits challenge of a conviction based on ineffective

assistance of counsel. To establish ineffective assistance of

counsel, a defendant must prove that: (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," and (2) "the

deficient performance prejudiced the defense." Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)

(adopting the Strickland two-part test in New Jersey). "[T]o

establish prejudice, a defendant must show not only that the

outcome of his trial would have been different absent the alleged

deficient representation, but also that the deficient

representation rendered the result of his proceeding fundamentally

unfair or unreliable." State v. Holmes, 290 N.J. Super. 302, 311

(App. Div. 1996).

It is well-established that "counsel is strongly presumed to

have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment."

Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.

2d at 695. "[A]n otherwise valid conviction will not be overturned

merely because the defendant is dissatisfied with his or her

counsel's exercise of judgment during the trial." State v.

5 A-3583-14T2
Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187

N.J. 293, 314 (2006)).

We defer "to a PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 212 N.J. 518,

540 (2013). We do not second-guess the fact-finder's credibility

findings except in extraordinary circumstances. "An appellate

court's reading of a cold record is a pale substitute for a trial

judge's assessment of the credibility of a witness he has observed

firsthand." Ibid. We uphold the PCR court's factual findings as

long as the findings "are supported by sufficient credible evidence

in the record." Ibid.

Defense counsel testified that defendant only objected to the

officer because he was a law enforcement officer. Counsel told

defendant that although the officer was in law enforcement, it was

nonetheless beneficial to have him on the jury because he was

African-American, intelligent and appeared to be impartial.

Defendant then agreed to have the officer on the jury. Because

counsel believed it was difficult to impanel African-American

jurors in Atlantic County, it was counsel's strategy for the

officer to remain on the jury. "Merely because a trial strategy

fails does not mean that counsel was ineffective." State v. Bey,

161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct.

2693, 147 L. Ed. 2d 964 (2000). Defendant never told her that he

6 A-3583-14T2
was familiar with the officer or that he definitely wanted the

officer stricken. Based on our acceptance of the PCR court's

credibility findings, sufficient credible evidence was presented

to support the court's conclusion that trial counsel's

representation was not deficient.

Affirmed.

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