NOT FOR PUBLICATION WITHOUT THE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-4187-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL WHITE, a/k/a AL-QUAN WHITE,
ALFUQUAN WHITE, WOHEED
MUHAMMAD, IKE MUHAMMAD,
WOHEED ROLLINS, ALI HAKIM,
and HASSAN COOK,
Defendant-Appellant.
____________________________________
Submitted January 13, 2020 – Decided January 31, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court, Law Division,
Essex County, Indictment Nos. 10-05-1368 and 10-01-
1369.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the briefs).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Barbara A.
Rosenkrans, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Al White, whose 2011 conviction for murder and other offenses we
upheld on direct appeal, returns with an appeal of the trial court's October 23, 2017
decision rejecting his petition for post-conviction relief ("PCR"). We affirm, except for
one aspect of the petition that was not ruled upon below.
The underlying facts and procedural history are detailed in our unpublished
opinion on direct appeal, and we incorporate them by reference here. See State v. White,
No. A-2320-11 (App. Div. Jan. 9, 2015).
Briefly stated, the State's proofs established that defendant shot and killed one
victim, Bryan Lockett, and wounded a second victim, Latiff McCleod, outside of a bar
in Irvington on October 9, 2009. The shots were fired minutes after an altercation erupted
inside the bar.
Portions of the incident that occurred outside were recorded on a surveillance
video camera outside of the premises. Antoine Clemons, a bar patron who had been
punched during the fight, identified defendant on the video wearing a shirt with a
distinctive checkerboard pattern and holding a gun. Ricky Shaw, the bar's head bouncer,
likewise identified defendant on the video. In addition, the jury heard a sworn statement
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2
by Frederick Ellis, another bouncer, who told police that he saw defendant shoot Lockett
and heard defendant say beforehand, "Let's clear this up."
Defendant testified in his own behalf at trial. He admitted that he had gone to the
Irvington bar on the night in question, but claimed he left the premises with a female
companion before the shooting and went to another club in Newark. Defendant also
presented testimony from Ellis's brother, Antonio Jones, who stated he saw defendant at
the Newark club and that he appeared to be acting normal. No other defense witnesses
testified.
The jury found defendant guilty of first-degree murder of Lockett, N.J.S.A. 2C:11-
3(a)(1)(2); third-degree aggravated assault of McCleod, N.J.S.A. 2C:12-1(b)(1); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession
of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and a "certain persons"
weapons offense, N.J.S.A. 39-7(b). The trial court sentenced defendant to an aggregate
custodial term of seventy-five years, subject to parole ineligibility periods mandated by
the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, defendant argued through his counsel that: (1) the State exercised
its peremptory challenges in an unconstitutional manner; (2) the surveillance video was
not sufficiently authenticated to be admissible; (3) the trial court erred in excluding
certain defense proofs; (4) the presentation of Ellis' video taped statement at trial was
A-4187-17T3
3
confusing, misleading, and invited speculation concerning its contents; (5) the court
should have charged the jury on lesser-included offenses to murder; (6) the prosecutor
made unduly prejudicial remarks in summation; (7) an outburst in the courtroom before
deliberations tainted the verdict; and (8) cumulative error. In a pro se supplemental brief,
defendant further argued that: (1) the trial court allowed inadmissible hearsay evidence
from a retired detective; (2) defendant was denied confrontation of non-testifying police
officers; (3) the court unfairly assisted the prosecutor in presenting the case; (4) the court
should have made greater inquiry into a juror's failure to appear for deliberations; (5)
defense counsel at trial was ineffective; and (6) the State should have produced a hard-
drive of the surveillance video system. We rejected these arguments in our opinion
upholding the conviction. White, slip op. at 4. The Supreme Court thereafter denied
defendant's petition for certification. State v. White, 221 N.J. 567 (2015).
In his PCR application, defendant argued that both his trial attorney and his
attorney on direct appeal failed to provide him with the effective assistance of counsel in
numerous ways. After duly considering these contentions and hearing oral argument, the
same judge who had presided over defendant's 2011 trial issued a detailed thirty-three
page written opinion rejecting defendant's contentions. The judge found no need to
conduct an evidentiary hearing. This PCR appeal ensued.
Defendant makes the following points in his counsel's brief:
A-4187-17T3
4
POINT I
THE PCR COURT ERRED BY DENYING
DEFENDANT'S MOTION FOR DISCOVERY TO
PERFECT HIS PETITION FOR POST-CONVICTION
RELIEF AND TO PERMIT THE INTERVIEW OF A
GRAND JUROR.
POINT II
THE PCR COURT ERRED BY DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING ON THE
CLAIMS THAT HIS TRIAL ATTORNEY
PROVIDED HIM WITH INEFFECTIVE
ASSISTANCE.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS FOR INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. DEFENDANT'S CLAIMS ARE NOT
PROCEDURALLY BARRED.
C. THE MOTION TO DISMISS THE
INDICTMENT
D. THE BRADY VIOLATION CLAIM
E. THE JURY'S UNRESTRICTED ACCESS TO
THE ELLIS STATEMENT
F. FAILURE TO INVESTIGATE
A-4187-17T3
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POINT III
APPELLATE COUNSEL PROVIDED DEFENDANT
WITH INEFFECTIVE ASSISTANCE.
Additionally, defendant makes the following points in a pro se supplemental
brief:
SUPPLEMENTAL PRO SE POINT I
THE PCR COURT FAILED TO APPLY THE LEGAL
STANDARDS OF BRADY V. MARYLAND TO
DEFENDANT'S CLAIMS, REGARDING THE
STATE'S SUPPRESSION OF IMPEACHMENT
MATERIAL EVIDENCE SURROUNDING KEY
WITNESS ANTOINE CLEMONS' CRIMINAL
RECORD, BRADY V. MARYLAND, 373 U.S. 83
(1963); STATE V. CARTER, 85 N.J. 300 (1981).
A. THE NEW TRIAL SHOULD HAVE BEEN
GRANTED IN LIGHT OF THE NEWLY
DISCOVERED EVIDENCE ATTRIBUTED TO
BRADY RULE VIOLATION.
B. THE PCR COURT ABUSE[D] ITS
DISCRETION WHEN IT FAILED TO APPLY
THE LEGAL STANDARDS OF BRADY V.
MARYLAND TO DEFENDANT'S CLAIMS,
THE STATE SUPPRESSED MATERIAL
EVIDENCE PERTAINING TO THE
FAVORABLE TREATMENT OF ANTOINE
CLEMONS IN EXCHANGE FOR
INCRIMINATING TRIAL TESTIMONY. SEE
BRADY V. MARYLAND, 373 U.S. 83 (1963);
HASKELL V. SUPERINTENDENT, GREENE,
SCI, 866 F.3D 139 (3rd Cir 2017).
A-4187-17T3
6
SUPPLEMENTAL PRO SE POINT II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
ADJUDICATE HIS CLAIMS THAT HE FAILED TO
RECEIVE ADEQUATE LEGAL REPRESENTATION
AT THE TRIAL & APPELLATE LEVEL.
STRICKLAND V. WASHINGTON, 466 U.S. 668
(1984).
A. Trial counsel was Ineffective for acquiescing
without object[ing] to the trial Courts erroneous
decision to give the deliberating jury full access
to the audio tape statement of Frederick Ellis,
because of counsel's failure to object defendant
was denied the substantive and procedural due
process, afforded by the State and Federal
Constitutions.
B. The [T]rial Court erred in denying defendant's
claim that trial counsel failed to conduct an
adequate pretrial investigation regarding State's
witness Ricky Shaw, deprived him of the right to
a fair trial and due process.
C. The [T]rial Court erred when it denied
defendant's ineffective assistance of counsel
claim regarding trial Counsel's deficient Wade
Motion, without an evidentiary hearing.
SUPPLEMENTAL PRO SE POINT III
DEFENDANT WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL. See
Evitts V. Lucey, 469 U.S. 387 105 S. Ct. 830 (1985).
A-4187-17T3
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A. Direct appeal counsel failure to raise that the
[T]rial Court's improper Wade hearing ruling
deprived defendant of his right to a fair trial, as a
matter of due process necessitating granting his
petition for Post-Conviction Relief.
B. Appellate counsel failed to raise the issue that
the [T]rial Court decision to allow Frederick Ellis
prior inconsistent statements to be played for the
jury, pursuant to State v. Gross, 121 N.J. 1 (1990)
was erroneous.
After considering these arguments in light of the record and the applicable
law, we affirm the trial court's denial of defendant's PCR petition. We do so
essentially for the substantive 1 reasons set forth in the trial court's extensive
written opinion, except for some slight variations in the analysis we will
mention.
A criminal defendant's right to counsel under the Sixth Amendment to the
United States Constitution and Article I, paragraph 10 of the New Jersey
Constitution includes the right to adequate legal advice. Strickland v.
Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
To succeed on a claim of a deprivation of the effective assistance of counsel, a
defendant must satisfy a two-part test. "First, the defendant must show that
1
We choose not to rest upon the procedural bars under Rule 3:22 advocated by
the State and adopted in the judge's decision.
A-4187-17T3
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counsel's performance was deficient. This requires showing 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. "Second, the
defendant must 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." Ibid.
In reviewing such claims of ineffectiveness, courts apply a strong
presumption that defense counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment." Id.
at 690. "[C]omplaints merely of matters of trial strategy will not serve to ground
a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (internal citation
omitted); see also State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of
counsel's performance cannot be fairly assessed by focusing on a handful of
issues while ignoring the totality of counsel's performance in the context of the
State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314
(2006). "As a general rule, strategic miscalculations or trial mistakes are
insufficient to warrant reversal 'except in those rare instances where they are o f
such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at
314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
A-4187-17T3
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Applying these well-established standards, we are satisfied the trial court had
ample justification to deny defendant's PCR petition. In addition, the trial court did not
err in declining to hold an evidentiary hearing, because defendant failed to present prima
facie grounds to set aside his conviction. State v. Preciose, 129 N.J. 451, 462 (1992).
We add only a few comments about certain issues.
Defendant's claim that the verdict must be set aside because the grand jury
allegedly was shown a mug shot of him is unavailing. When this issue arose before trial,
the court held a hearing, and found credible the prosecutor's testimony refuting that the
photo was displayed. Defendant's trial counsel rightly would have been concerned that
if defendant testified about this subject at the pretrial hearing, doing so might have
generated statements that could have been used to impeach him at trial.2 Defendant
provides scant information about the hearsay source of his alleged contention that the
mug shot had been displayed. In any event, even if the photo was displayed and
somehow tainted the grand jurors, the United States Supreme Court has made clear that
an ensuing guilty verdict by a trial jury can vitiate such a claim of prejudice in the grand
jury process. See United States v. Mechanik, 475 U.S. 66 (1986).
2
That said, in retrospect, defense counsel should not have threatened to
withdraw if defendant unwisely elected to testify at the hearing. However, for
the reasons we note, that is legally inconsequential.
A-4187-17T3
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We are likewise unpersuaded by defendant's claim that his counsel on direct
appeal should have advocated for a new trial because the deliberating jurors were given
unsupervised access to an audio recording of Ellis's police statement. Following an
appropriate hearing under State v. Gross, 121 N.J. 18 (1990), the police statement was
duly admitted into evidence, and played for the jurors, as a prior inconsistent statement
under N.J.R.E. 803(a)(1). We are mindful that the New Jersey Supreme Court made
clear for the first time in dicta in its 2013 opinion in State v. A.R., 213 N.J. 541, 560-61
(2013), that allowing jurors unsupervised access to both video and audio recordings
during their deliberations is disfavored. We discern no deficient performance by
appellate counsel concerning this issue, as the Supreme Court's 2013 dicta about audio
recordings is not manifestly retroactive to a trial such as this one that occurred years
earlier. Although we do not rely on the PCR court's stated distinction between audio and
video recordings or between playbacks of recorded police statements versus courtroom
testimony, we are satisfied that the denial of relief on this issue under the Strickland
factors was correct.
Similarly, there is no merit to defendant's contentions that his appellate counsel
should have sought to overturn the admission of the identifications by Clemons and Ellis
A-4187-17T3
11
of defendant as the victim's shooter. The trial court admitted those identifications after a
Wade3 hearing and expressed sound reasons for admitting the testimony.
Nor is there any demonstrated merit to defendant's claim that he was denied a fair
trial under Brady v. Maryland, 373 U.S. 83 (1963), because of the State's delayed
turnover of discovery concerning child support warrants for Clemons that had been
outstanding and withdrawn in Atlantic County. There is no competent evidence showing
that the failure of Atlantic County to reinstate those warrants had anything to do with
Clemons' cooperation in this criminal trial in Essex County. Defendant's trial counsel
cross-examined Clemons. This additional material about Clemons' child support
obligations would not have manifestly altered the strength of the State's case as a whole.
We do not resolve defendant's allegation that he was deprived of a fair trial because
his witness Jones testified in handcuffs, in alleged violation of State v. Artwell, 177 N.J.
526 (2003). Defendant contends his counsel on direct appeal ignored his request to raise
that issue. The record has not been developed on the issue, and it was not addressed by
the PCR court. We remand the issue to the trial court to address the claim, both
procedurally and substantively.
The balance of defendant's arguments lack sufficient merit to warrant discussion.
R. 2:11-3(e)(2).
3
United States v. Wade, 388 U.S. 218 (1967).
A-4187-17T3
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Affirmed in part and remanded in part. We do not retain jurisdiction.
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