NOT FOR PUBLICATION WITHOUT THE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 pos ted 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-1086-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KORY S. MCCLARY, a/k/a
MERLIN MCCLARY,
Defendant-Appellant.
______________________________
Submitted February 10, 2020 – Decided March 26, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 10-08-1852.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Melinda A. Harrigan, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an August 30, 2018 order denying his petition for
post-conviction relief (PCR). Defendant primarily maintains that his trial
counsel rendered ineffective assistance. Judge Bernard E. DeLury, Jr., entered
the order and rendered a lengthy written decision denying the petition without
an evidentiary hearing.
A jury convicted defendant of multiple crimes, including two counts of
first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), two counts of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), and numerous weapons offenses,
N.J.S.A. 2C:39-4(a), -5(b), and -7.1 The court sentenced him to 130 years'
imprisonment with 112 years' parole ineligibility. We upheld his convictions
and sentences. State v. McClary, No. A-5197-13 (App. Div. Jan. 19, 2017). The
Supreme Court denied certification. State v. McClary, 229 N.J. 623 (2017).
In May 2017, defendant filed his PCR petition. In his petition, defendant
argued his trial counsel rendered ineffective assistance by failing to investigate
and/or having exculpatory witnesses testify.
On appeal, defendant argues:
1
Defendant waived his right to a jury trial as to certain persons not to possess
weapons, N.J.S.A. 2C:39-7, and the judge convicted him of that crime.
A-1086-18T1
2
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO INVESTIGATE AND/OR HAVE
EXCULPATORY WITNESSES TESTIFY.
A. Trial Counsel Failed To Have Alibi
Witnesses Testify.
B. Trial Counsel Failed To Investigate An
Eyewitness.
Defendant raises the following additional arguments in his pro se brief, which
we have renumbered:
POINT II
THE PCR [JUDGE] ABUSED [HIS] DISCRETION IN
DENYING . . . [DEFENDANT'S] PETITION FOR
[PCR], WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS
HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, IN VIOLATION OF HIS RIGHTS
TO A FAIR TRIAL AND DUE PROCESS OF LAW
GUARANTEED BY THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION AND ARTICLE [I]
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
A. The [Judge] Erred In Denying . . .
[Defendant] An Evidentiary Hearing To
A-1086-18T1
3
Establish That Trial Counsel Was
Ineffective For Failing To Submit . . .
[Defendant's] Pro[]Se Brief To Suppress
The Statements Of [A.L.].
B. The PCR [Judge] Erred In Determining
That This Claim Was Barred Under [Rules]
3:22-2 And 3:22-4.
C. The PCR [Judge] Abused [His]
Discretion In Determining That Rebuttal
Witness [A.P.'s] Certification Was A Bald
Assertion.
D. The PCR [Judge] Misinterpreted . . .
[Defendant's] Claim, In As Much That
Trial Counsel Failed To Properly Cross-
Examine [A.L.] And [D.S.].
E. Trial Counsel Was Ineffective For
Failing To Properly Consult With
[Defendant] To Form A Cohesive Trial
Strategy.
i. Counsel Failed To Advise
. . . [Defendant] Of His
Constitutional Right To
Testify.
ii. Counsel Failed To Discuss
Strengths And Weaknesses Of
The Case.
F. Trial Counsel Was Ineffective For
Failing To Provide Or Go Over Discovery
With . . . [Defendant]. An Evidentiary
Hearing Was Required To Determine The
Scope Of [Defendant's] Claim.
A-1086-18T1
4
G. The PCR [Judge] Abused [His]
Discretion In Determining That . . .
[Defendant] Was Not Entitled To An
Evidentiary Hearing On This Claim.
POINT III
THE PCR [JUDGE] FAILED TO MAKE SPECIFIC
FACT FINDINGS AS REQUIRED BY RULES 1:7-
4(A) [AND] 3:22-11; AND THE [PCR JUDGE'S]
STATED CONCLUSIONS OF LAW, PERTAINING
TO . . . [DEFENDANT'S] INEFFECTIVE CLAIMS OF
TRIAL COUNSEL IN FAILING TO OBJECT TO, OR
TO ASK FOR, A MISTRIAL, WHEN THE TRIAL
[JUDGE] GAVE SPECIFIC INSTRUCTIONS
FOCUSING, AND DIRECTED AT, A SINGLE
JUROR, WERE FLAWED. APPELLATE COUNSEL
WAS FURTHER INEFFECTIVE IN FAILING TO
RAISE THIS CLAIM, THEREBY FURTHER
VIOLATING [DEFENDANT'S] CONSTITUTIONAL
RIGHTS TO DUE PROCESS OF LAW.[2]
We conclude that these arguments lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set
forth by Judge DeLury in his well-reasoned decision. We add the following
remarks.
2
Defendant did not allege in his PCR petition or before the PCR judge that
appellate counsel rendered ineffective assistance of counsel. We nevertheless
conclude his argument that appellate counsel was ineffective lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
A-1086-18T1
5
A defendant is entitled to an evidentiary hearing only when he "'has
presented a prima facie [case] in support of [PCR],'" State v. Marshall, 148 N.J.
89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J.
451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable
likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a
defendant to obtain relief based on ineffective assistance grounds, he is obliged
to show not only the particular manner in which counsel's performance was
deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-part test in New Jersey, now known as
the Strickland/Fritz test). Under this standard, defendant was not entitled to an
evidentiary hearing.
We reject defendant's assertion that trial counsel was ineffective by failing
to produce D.F. (his mother), Z.B. (his mother's friend), and N.G. (his friend),
as alibi witnesses. As to these individuals, trial counsel exercised strategy by
intentionally not calling them to testify. The law is settled on this point.
Trial "[c]ounsel's 'strategic choices made after a thorough investigation of
[relevant] law and facts . . . are virtually unchallengeable.'" State v. Petrozelli,
351 N.J. Super. 14, 22 (App. Div. 2002) (second and third alterations in original)
A-1086-18T1
6
(quoting Strickland, 466 U.S. at 690-91). "A court evaluating a claim of
ineffective assistance of counsel must avoid second-guessing defense counsel's
tactical decisions and viewing those decisions under the 'distorting effects of
hindsight.'" Marshall, 148 N.J. at 157 (quoting Strickland, 466 U.S. at 689). In
fact, there is a strong presumption that defense counsel's conduct falls into the
range of reasonable assistance as guaranteed by the Sixth Amendment. Ibid. A
reviewing court should accord deference to "strategically defensible" tactical
decisions. State v. Hightower, 120 N.J. 378, 402 (1990). Consequently,
counsel's decision as to which witnesses to call to the stand is "an art," to which
a reviewing court must be "highly deferential." State v. Arthur, 184 N.J. 307,
321 (2005) (quoting Strickland, 466 U.S. at 689, 693).
As to two of the purported alibi witnesses, trial counsel stated on the
record that he and defendant discussed his tactical decision not to produce the
witnesses.
[Trial Counsel]: Your Honor, there's one other thing
that I discussed with [defendant]. Judge, there's
reference in his statement to alibi. There [are]
discoverable materials in my possession. Based on
those discoverable materials, I've spoken with
[defendant] and I've decided not to call either of those
two potential witnesses for reasons that are known to
the State as well as myself and [defendant]. So based
on that, that's a strategic decision that I have made. I
A-1086-18T1
7
do not wish to expose them to cross-examination on
prior statements.
The Court: It's my understanding, then, to the extent
that there may be some information relative to alibi or
other places or persons involved in the case, it's your
strategic decision to forego any evidence on that point.
[Trial Counsel]: Based on prior statements, yes.
The Court: Very well. I understand your position[.]
[(Emphasis added).]
Although defendant argues that trial counsel did not adequately state on the
record his reasoning for not producing the potential alibi witnesses testify, the
record reflects otherwise. Trial counsel strategically decided not to call these
witnesses because their credibility could be impeached based on prior
statements.
Specifically, Z.B. and D.F. certified that police searched the house for
defendant. But in his testimony before the trial judge, the detective stated that
upon arriving at defendant's house, D.F. told him "you're not getting in [the
house]." The detective stated, "at that point we didn't have enough for a search
warrant, so we backed off[.]" Police did not enter the residence until the
following day. As the PCR judge noted, the information contained in the alibi
witnesses' certifications "directly conflicts with the trial testimony and various
A-1086-18T1
8
police reports and is therefore incredible." Therefore, as to Z.B. and D.F.'s
certifications, defendant failed to satisfy prong one of Strickland.
Even if defendant established prong one, which is not the case, he would
not be able to demonstrate the second prong of Strickland. 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." Strickland,
466 U.S. at 687.
"Whether the testimony of the proposed witness shows
directly that a defendant was not physically present at
the precise time and place of the alleged offense, or
does so only inferentially, its purposes and objectives
are the same. The difference is the weight and degree
of persuasiveness attributed to that testimony by the
jury."
[State v. Banks, 349 N.J. Super. 234, 247 (App. Div.
2001) (quoting State v. Nunn, 113 N.J. Super. 161, 168
(App. Div. 1971)).]
As to N.G., defendant baldly asserts that this "prospective alibi testimony
transcended the dubious import of [the victim] identifying defendant as the
gunman on June 21, 2008." Defendant has failed to demonstrate that N.G. and
the other alibi witnesses would have affected the outcome of trial, especially
considering the numerous other witness who testified as to defendant's
A-1086-18T1
9
involvement in the shootings. Thus, defendant fails to satisfy the second prong
of Strickland.
Defendant contends that trial counsel failed to investigate A.G. as a
potential alibi witness. PCR counsel submitted A.G.'s certification to the PCR
judge, who found "even if the jury was presented with the testimony of . . .
[A.G.], the jury was still presented with sufficient evidence that [defendant]
committed the murders and thus the outcome would not have been altered in any
way."
Trial "[c]ounsel has a duty to make [a] reasonable investigation[] or to
make a reasonable decision that makes particular investigations unnecessary."
State v. Chew, 179 N.J. 186, 217 (2004) (quoting Strickland, 466 U.S. at 691).
Generally, an attorney representing a criminal defendant should interview all
alibi witnesses. State v. Pierre, 223 N.J. 560, 582 (2015). "Failure to investigate
an alibi defense is a serious deficiency that can result in the reversal of a
conviction." State v. Porter, 216 N.J. 343, 353 (2013). As the PCR judge noted,
defendant fails to raise any particular arguments as to how trial counsel failed
to investigate A.G. as a potential witness. The PCR judge already found that
even with A.G.'s testimony, there was sufficient evidence presented to the jury
A-1086-18T1
10
to find defendant committed the crimes, thereby failing to satisfy the second
prong of Strickland.
Affirmed.
A-1086-18T1
11
STATE OF NEW JERSEY VS. KORY S. MCCLARY (10-08-1852, ATLANTIC COUNTY AND STATEWIDE)
Combined Opinion