RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0287-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRAVIS BURRIS, a/k/a
HAJIEM SUMLER,
TRAVIS E. BURRIS,
Defendant-Appellant.
Submitted February 4, 2020 – Decided March 24, 2020
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 06-10-3262.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Emily M. M. Pirro,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Travis Burris appeals from the May 3, 2018 denial of his
petition for post-conviction relief (PCR), after an evidentiary hearing,
contending trial counsel was ineffective for failing to investigate a potential
exculpatory witness, and in depriving defendant of his right to testify on his own
behalf. We affirm.
We derive the facts from our prior decision in the direct appeal and the
testimony from the evidentiary hearing. State v. Burris, No. A-0666-11 (App.
Div. Sept. 11, 2014).
On the afternoon of March 22, 2006, D.E. was shot in
the face as he was backing his car out of his driveway
in Newark. D.E. was not the intended target of the
shooting, but he did observe the shooter, and later
identified defendant in a photo array. After the
shooting, police recovered several shell casings and
bullet fragments from the scene.
[D.E. also] provided a statement to the police
regarding the shooting, as well as the shooter's
description. He described his assailant as having a
"goatee," "dreads," and "a bandana tied to his waist."
On the morning of March 24, 2006, D.E. met with
the police again and identified defendant from an array
of six photographs. Both at the time he was first shown
the pictures and at trial, D.E. explained he was a
"[h]undred percent" sure he had identified the man who
shot him in the face. D.E. also testified that at first, he
believed he was the target, but he later learned that
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defendant was trying to shoot at two other individuals
who were seen on the sidewalk.
[Id. at 2-3 (alteration in original).]
D.E. learned he was not the intended target because of the events that
occurred on March 23, 2006 in Newark. On that evening,
L.C. was walking with her two sons, K.C. and D.C. . . .
when she was shot and killed; K.C. was also shot,
suffering injuries to his arm and chest. The police
recovered forty-five caliber shell casings and one bullet
fragment from the scene. Both K.C. and D.C. identified
defendant as the shooter from photographs presented to
them.
D.C. testified at trial regarding the events
surrounding this incident. He acknowledged he was a
Crip gang member who knew defendant, "from the
area," as a Brick City Brim Blood gang member named
"July." D.C. explained that three days prior to the
shooting, on March 20, 2006, defendant approached
him for the first time and asked, "[Y]ou know what
zone you in? You know where you at, what territory?"
As defendant came toward D.C., he made threatening
gang sign gestures with his hands. D.C. stated
defendant "threw out B's, that mean[t] he was banging
in his set and when he thr[e]w up C K, that mean[t] . . .
kill a Crip."
D.C. explained that two days later, on March 22,
2006, defendant approached him in the store located on
South 20th Street. Defendant informed D.C. that "one
of [his] Crip homies came around there and robbed
them[.]" D.C. responded that he did not have anything
to do with a robbery and that just because he was a Crip
"don't mean that [he] own[ed] every Crip that's in
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Newark or Irvington, East Orange, whatever." At that
time, D.C. believed defendant "was gonna do
something," but he did not anticipate that defendant
would later shoot at him. D.C. testified that the events
that occurred the following day, on March 23, 2006,
had to do with these prior altercations with defendant.
K.C. testified at trial that after hearing the first
shot, he heard his mother scream for help. As he went
towards her, he was shot in the left arm and rib; K.C.
discovered that his mother had been shot in the neck.
Both D.C. and K.C. testified that after the shooting
stopped, they witnessed defendant flee the scene. L.C.
and K.C. were subsequently taken to the hospital,
where L.C. died as a result of her gunshot wound.
After the second shooting, police obtained an
arrest warrant for defendant, and then recovered a gun
at the residence where defendant was staying when he
was arrested. Police sent the gun to the ballistics lab;
the gun matched the shell casings previously seized
from the scenes of the two shootings. The evidence
indicated defendant had the gun for about two and one-
half weeks prior to the date of the shootings. Defendant
also admitted the gun was his.
[Id. at 3-5 (alterations in original).]
Defendant was charged in an indictment with second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1); three counts of third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-
degree murder, N.J.S.A. 2C:11-3(a)(1) (2); two counts of first-degree attempted
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murder, N.J.S.A. 2C:5-1, 2C:11-3; and second-degree unlawful use of a body
vest, N.J.S.A. 2C:39-13.
Following an eleven-day trial, the jury returned a verdict finding
defendant guilty on all counts. Defendant was subsequently sentenced to an
aggregate sentence of life imprisonment with 117-and-one-half years of parole
ineligibility.
On direct appeal, defendant argued that 1) the trial court erred in denying
the severance of the charges pertaining to the two shooting events; 2) the court
erred in admitting evidence found in defendant's jail cell; 3) the court
impermissibly admitted certain hearsay evidence; 4) the court erred in denying
the suppression motion; 5) the prosecutor's misconduct required reversal; and 6)
the sentence was excessive.
We affirmed defendant's convictions but remanded for entry of a corrected
judgment of conviction to reflect the correct period of parole ineligibility under
the murder conviction. 1
After defendant filed a pro se PCR petition, he was assigned counsel who
filed a brief in support of defendant's petition. After reviewing the papers, the
1
The corrected judgment of conviction reflected an aggregate 63.75 years of
parole ineligibility.
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PCR judge granted an evidentiary hearing to determine whether trial counsel
was ineffective in 1) failing to call Davion Sumler as a witness as requested by
defendant; and 2) in failing to discuss with defendant his right to testify.
Defendant, Sumler, and defendant's trial counsel testified at the hearing.
Defendant stated that he told trial counsel he wanted to testify on his own behalf,
but counsel responded it was not part of his strategy. Defendant said trial
counsel did not discuss with him what testimony could be elicited from him if
he testified nor did counsel inform him as to the potential consequences of him
testifying. He conceded his credibility would have been tested like other
witnesses he had observed in court.
Although defendant recalled he was questioned by the court regarding his
decision not to testify, he could not remember any specific questions. He
admitted he made the decision not to testify of his own free will.
When questioned about Sumler, defendant stated he was his cousin, he
lived on the corner of the street where the crimes occurred, and he was an
eyewitness. Defendant said he told trial counsel to call Sumler as a witness.
Defendant also stated he was present when he heard trial counsel speak on his
cell phone to Sumler.
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Sumler, a convicted felon, testified that he gave a statement to defendant's
investigator in December 2016. He recalled that on March 22, 2006, he was
standing on the corner of South 19th Street and South Orange Avenue when he
saw two individuals walk by him. He did not know the people. However, after
the people turned the corner, Sumler heard gunshots and both individuals ran
back past him. Neither of the individuals was defendant.
On March 23, 2006, Sumler recalled being two doors away from the
shooting. As he was working outside on his car, he saw a woman and her two
sons walk past him and go to a store. When they again passed him, he heard a
loud boom. As he looked up, he saw a man with a red bandana wrapped around
his face shooting at the woman and children. Although he saw the person, he
did not recognize him as defendant. Sumler described the shooter as a "skinny
guy" with "long dreads" and a "small build." He was also certain the gun was a
long nose revolver. Sumler said he ran away from the scene but came back once
the police arrived.
Sumler stated he did not go to the police or inform them about the March
22 incident. He did talk to the police on March 23, telling them what he saw.
Trial counsel has worked in the public defender's office for twenty-eight
years, trying more than fifty homicide cases. Counsel recalled representing
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defendant and discussing trial strategy with him, including defendant's right to
testify. Counsel stated he has never stopped a client from testifying if he or she
insisted on doing so. He also recalled discussing with defendant the impact the
evidence found in his cell would have and how a prior conviction could be used
against him in the event he testified.
Counsel did not recall any conversation about an alibi witness and said
defendant never gave him information about an alibi or eyewitness. He stated
he would have investigated it if he was so informed. Counsel did not remember
ever speaking to Sumler.
The PCR court issued a comprehensive well-reasoned written decision on
May 3, 2018 denying the PCR petition. The court found petitioner incredible,
as his testimony was "inherently unreasonable as compared to [defense
counsel's] testimony, and his testimony was contradicted by his prior
inconsistent statements [made] during his colloquy with the [c]ourt." The court
described Sumler's testimony as biased and he treated it "with skepticism." In
contrast, the PCR court found trial counsel to be credible.
The PCR court rejected defendant's assertion that his counsel was
deficient in failing to call Sumler as an exculpatory witness. The court noted
that "Sumler's purported testimony would not have been credible in light of the
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statements of other witnesses, the statements of [defendant] himself, the
physical evidence near the time of the shootings, the identifications of witnesses
and the other proofs in the case."
The PCR court noted that trial counsel did not recall defendant proffering
Sumler as an alibi or eyewitness. Moreover, Sumler stated he did not speak to
trial counsel either prior to or during the trial in reference to his knowledge of
the March 2006 shootings. Therefore, the PCR court stated there was no support
for defendant's assertion that trial counsel was deficient in not calling Sumler as
a witness.
Even if trial counsel was deficient, the PCR court found defendant had not
demonstrated any prejudice. Sumler did not see the first shooting, and he could
not describe the individuals who ran by him or even the clothing they wore.
Although Sumler described the shooter he saw on March 23, his description of
the murder weapon did not match the weapon that was proven to have been used.
Sumler was certain it was a revolver; the proofs showed it was a semi-automatic
handgun defendant admitted belonged to him, found in the apartment where
defendant was arrested. In addition, several eyewitnesses identified defendant
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as the shooter. Therefore, the PCR court concluded defendant had not
established the second Strickland prong.2
The PCR court also rejected defendant's argument that trial counsel was
ineffective in not permitting defendant to testify. The court found defendant had
not demonstrated that trial counsel's performance was deficient. The court said,
"[t]he credible evidence, including [trial counsel's] testimony at the evidentiary
hearing and [defendant's] statements at trial, shows that [defendant] decided of
his own free will not to testify and that [trial counsel] did not pressure him into
this decision." The court further noted that whatever advice trial counsel gave
to defendant, it was ultimately defendant's choice whether to testify or not.
There was no evidence that defendant was under any coercion not to testify.
On appeal, defendant presents the following issues:
POINT I - THE DEFENDANT'S CONVICTIONS
MUST BE REVERSED BECAUSE TRIAL COUNSEL
WAS INEFFECTIVE FOR FAILING TO
INVESTIGATE DAVION SUMLER AS AN
EXCULPATORY WITNESS AND/OR HAVE HIM
TESTIFY.
POINT II - THE DEFENDANT'S CONVICTIONS
MUST BE REVERSED BECAUSE TRIAL COUNSEL
ABRIDGED HIS CONSTITUTIONAL RIGHT TO
TESTIFY.
2
See Strickland v. Washington, 466 U.S. 668 (1984).
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The standard for determining whether trial counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland,
466 U.S. at 687 and adopted by the New Jersey Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective assistance
of counsel, defendant must meet the two-pronged test establishing both that: 1)
counsel's performance was deficient and he or she made errors that were so
egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and 2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.
In our review of a PCR court's determination, we defer to the court's
factual findings, including credibility determinations, if they are supported by
"adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415
(2004) (quoting Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
We affirm substantially for the reasons given in the PCR court's cogent
decision. We add only the following brief comments.
During the evidentiary hearing, defendant testified he did not know
Sumler was a witness, did not know his phone number and could not describe
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what Sumler might have witnessed. But he also stated that, although he did not
ask trial counsel to call Sumler as a witness, nevertheless during a jail visit, he
heard counsel call Sumler on his cellphone.
Trial counsel did not recall defendant ever proffering Sumler as an alibi
or eyewitness. He stated that if an exculpatory witness had been presented, he
would have investigated the information and discussed it with defendant. We
are satisfied defendant has not established counsel was deficient in not calling
Sumler as a witness.
Moreover, defendant has not shown any prejudice from Sumler's non-
appearance as a witness. Sumler did not observe the March 22 shooting and
could not identify the individuals that ran by him. Although he saw the shooter
on March 23, his description was sparse. He also described a weapon that was
later proven not to be the murder weapon. The lack of Sumler's testimony did
not deprive defendant of a fair trial.
We discern no merit to defendant's argument that trial counsel prevented
him from testifying. The trial judge carefully interviewed defendant regarding
his choice not to testify. Defendant stated he had discussed the issue with
counsel and had chosen, without coercion, not to testify. Furthermore,
defendant confirmed counsel advised him of the perils of testifying, including
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questioning as to the incriminating evidence found in his jail cell, his admission
of ownership of the gun and evidence of a prior conviction.
We are satisfied the PCR court's denial of the petition was supported by
the credible evidence in the record. Defendant did not demonstrate trial counsel
was ineffective under the Strickland-Fritz test.
Affirmed.
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