NOT FOR PUBLICATION WITHOUT THE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-3540-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY MADDOX, a/k/a
GARY FOSTER,
Defendant-Appellant.
_________________________
Submitted May 6, 2020 – Decided July 8, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 07-09-0124.
Kelly Anderson Smith, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel A. Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
The trial court denied defendant Gary Maddox's post-conviction relief
(PCR) petition by order and oral opinion on May 8, 2015. We affirmed, but the
Supreme Court remanded the matter to the PCR court to hear oral argument.
Following oral argument, the PCR court denied the petition by way of a March
8, 2019 order, and defendant now appeals. We remand for an evidentiary
hearing limited to one issue: was trial counsel ineffective in failing to call three
witnesses.
I.
Defendant was indicted for first-degree racketeering, N.J.S.A. 2C:41-2;
first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 and
2C:2-6; second-degree conspiracy, N.J.S.A. 2C:5-2; and related drug offenses.
Those charges arose out of evidence collected during an extensive investigation
conducted by the State Police.
During a ten-day trial in 2009, the State presented evidence that defendant
engaged in the sale of various controlled dangerous substances, including
cocaine, crystal methamphetamine, painkillers, and marijuana. The State also
presented evidence that defendant supervised at least three people as part of a
narcotics network: Lori Gephart, his girlfriend; Gerald Foster, his younger
brother; and Charles Muldrow, his nephew.
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The evidence at trial included testimony from an informant who worked
with the State Police. The informant testified concerning numerous controlled
buys of narcotics from defendant or his associates. Those buys were observed
by the State Police, and officers also testified about those buys and the
monitored conversations between the informant and defendant. The State also
obtained a warrant to wiretap two of defendant's cell phones and presented
recordings of numerous conversations. The transcripts of those telephone
conversations included multiple incriminating statements concerning the extent
of defendant's drug-selling activities.
In addition, the State presented testimony from Nasar Perez, a drug
supplier who was arrested when he traveled to Arizona to obtain five kilograms
of cocaine to sell to defendant and co-defendant Jason McKinnon. Moreover,
the evidence at trial included testimony by Bennet Goodin and Jonathan Flick,
two "runners" who were recruited to distribute drugs for defendant and co-
defendant McKinnon.
When the State Police arrested defendant, they executed search warrants
of his home and a storage unit. During the searches of defendant's home, the
police seized small amounts of cocaine and marijuana, money orders and
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receipts totaling $10,000, approximately $3000 in United States currency, and
eight vehicles.
After hearing that evidence, a jury convicted defendant of eight crimes:
first-degree racketeering, second-degree conspiracy, first-degree leader of a
narcotics trafficking network, first-degree distribution of cocaine, N.J.S.A.
2C:35-5(a)(1), 2C:35-5(b)(1), 2C:35-5(c), and 2C:2-6; second-degree
distribution of methamphetamine, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(9)(a),
2C:35-5(c), and 2C:2-6; third-degree distribution of cocaine within 1000 feet of
school property, N.J.S.A. 2C:35-7 and 2C:2-6; third-degree possession of
cocaine, N.J.S.A. 2C:35-10(a)(1) and 2C:2-6; and third-degree money
laundering, N.J.S.A. 2C:21-25(a), as a lesser included offense of second-degree
money laundering.
At sentencing, the court granted the State's motion for an extended term
on the conviction for leader of a narcotics trafficking network, and defendant
was sentenced to a term of life in prison with thirty years of parole ineligibility.
Defendant was also sentenced to consecutive terms of fifteen and three years in
prison on his convictions for racketeering and money laundering. All
defendant's other sentences were run concurrent to his sentence to life in prison.
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Defendant filed a direct appeal and we affirmed his convictions and
sentence. State v. Maddox, No. A-1715-09, A-1856-09 (App. Div. July 8,
2013). In affirming his convictions, we reviewed, analyzed, and rejected ten
arguments he raised. We also detailed the evidence presented against defendant
and pointed out that that evidence was "overwhelming." The Supreme Court
denied defendant's petition for certification. State v. McKinnon, 217 N.J. 285
(2014).
In June 2014, defendant filed a petition for PCR. He was assigned counsel
and, with the assistance of counsel, he prepared an amended petition and
submitted various certifications.
On March 20 and April 24, 2015, the PCR judge heard argument on
defendant's petition. On April 24 and May 8, 2015, the judge read an oral
opinion into the record and issued an order denying defendant's petition. In her
opinion, the judge detailed the multiple arguments presented by defendant's PCR
counsel, as well as defendant himself, analyzed those arguments, and rejected
them.
As noted earlier, we affirmed the denial of defendant's petition
substantially for the reasons expressed by the PCR judge in her opinion . State
v. McKinnon, No. A-5751-14, A-0192-15 (App. Div. Nov. 17, 2017).
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As also already noted, the Supreme Court granted defendant's petition for
certification and remanded the case to the PCR court for oral argument. In that
same order, the Supreme Court granted certification to co-defendant McKinnon
and remanded for oral argument on McKinnon's PCR petition. State v.
McKinnon, 233 N.J. 368 (2018).
On March 1, 2019, the same PCR judge heard oral argument on
defendant's petition. Defendant's PCR counsel referenced a number of alleged
grounds for ineffective assistance of trial and prior appellate counsel but focused
his arguments on defendant's right to an evidentiary hearing on the contention
that trial counsel was ineffective in not calling three witnesses. In support of
that argument, defendant contended that he had submitted certifications and
signed statements from Gephart, Foster, and Muldrow. Each of those
individuals contended that they had never worked for defendant; rather, they had
independently sold drugs for their own benefit.
After considering the oral arguments, the PCR judge denied defendant's
petition in an order entered on March 8, 2019. The court also issued a written
opinion explaining that none of the arguments presented orally changed her view
and she, therefore, relied on and incorporated by reference her extensive oral
opinion issued in April and May 2015.
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II.
Defendant now appeals from the March 8, 2019 order denying his petition.
On appeal, defendant contends: "THE PCR COURT ERRED IN DENYING AN
EVIDENTIARY HEARING." More specifically, defendant makes two
arguments. First, he contends that he was entitled to an evidentiary hearing on
trial counsel's failure to call Gephart, Foster, and Muldrow as witnesses at trial.
Second, he contends that he was entitled to an evidentiary hearing on trial
counsel's failure to object to juror number ten continuing to sit as a juror. We
are not persuaded by the argument concerning the juror, but we hold that
defendant has presented enough information to warrant an evidentiary hearing
on his contention that trial counsel was ineffective in failing to call three
witnesses. We will briefly analyze both of those issues. Before doing so, we
will address the State's argument that our decision in 2017 constitutes law of the
case.
A. Our 2017 Decision
The State argues that our prior decision denying defendant's PCR petition
is law of the case. We reject that argument. After our decision in 2017 was
issued, the Supreme Court granted defendant's petition for certification and
remanded the matter for oral argument. The State argues that the Supreme Court
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did not vacate our opinion and, therefore, it remains law of the case. We do not
read the Supreme Court's order to support the State's position.
There would be no point to remand the matter for oral argument if the
PCR court could not reconsider and potentially change its initial ruling.
Similarly, we are not bound by our 2017 decision because otherwise defendant's
right to appeal would be meaningless. See State v. K.P.S., 221 N.J. 266, 276-
77 (2015) (citation omitted) (alteration in original) (holding that the law of the
case doctrine is a "discretionary rule that calls on one court to balance the value
of judicial deference for the rulings of a coordinate [court] against factors that
bear on the pursuit of justice and, particularly, the search for truth"). Indeed, as
demonstrated by our remand, we have come to a different view.
Understandably, the PCR judge relied on our prior affirmance to support
her decision denying defendant's petition after hearing oral argument in 2019.
Defendant had made arguments for an evidentiary hearing in 2015 and he had
even submitted certifications from Gephart, Foster, and Muldrow. In 2015,
however, defendant made numerous other arguments and he did not focus his
arguments on the need for an evidentiary hearing concerning the three potential
witnesses. As we will discuss, we now see that issue differently. That
refocusing illustrates the benefit of oral arguments on PCR petitions because, as
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our Supreme Court has noted, such petitions are a defendant's last opportunity
for review in a system that strives for justice but is not infallible. See State v.
Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249
(2005)).
B. The Juror
During trial, juror number ten disclosed to the trial judge that one of her
friends was the cousin of Gephart, who was alleged to be part of the narcotics
network and who was a potential witness at the trial. As soon as that disclosure
occurred, the trial judge voir dired juror number ten. The juror explained that
she had not discussed her realization with any other member of the jury. She
also explained she could hear the anticipated testimony from Gephart and
evaluate it impartially. Furthermore, she stated that she believed she could
continue to serve as an impartial and fair juror. After allowing counsel to ask
follow-up questions, the judge determined that juror number ten could continue
as a juror. Defendant's trial counsel did not object to that ruling. Nor did the
trial counsel representing co-defendant McKinnon object. Ultimately, Gephart
did not testify at trial.
In the 2015 opinion, the PCR judge extensively analyzed this issue and
determined that there was no prima facie showing of ineffective assistance of
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defendant's trial counsel for failing to object to juror number ten. After hearing
oral argument following the remand, the same judge made the same ruling.
Having conducted a de novo review, we agree and affirm the denial of
defendant's petition to the extent it relies on an argument concerning the failure
to object to juror number ten continuing on the jury.
C. The Failure to Call Three Witnesses
A defendant is entitled to an evidentiary hearing on a PCR petition only
by establishing a prima facie showing of the grounds for the petition. R. 3:22-
10(b); State v. Rose, 458 N.J. Super. 610, 624 (App. Div. 2019). To establish a
claim of ineffective assistance of counsel, a defendant must satisfy a two part
test: (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 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland test).
In 2014, in support of his petition, defendant submitted a report from an
investigator. The investigator had interviewed Gephart, Foster, and Muldrow.
The investigator summarized his conversations with each of those individuals
and reported that each was prepared to testify, that they had been available to
A-3540-18T4
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testify at trial, had not been called as witnesses, but, if called, would have
testified that they never sold drugs for or worked at the direction of defendant.
Gephart, Foster, and Muldrow also signed statements certifying what they had
told the investigator. In addition, Muldrow signed an affidavit and Foster and
Gephart signed notarized letters.
The PCR judge reasoned that those certifications were incredible given
the relationship that each of those witnesses had to defendant and given the
overwhelming contrary evidence that had been presented at trial. We are
constrained to conclude that such a finding can only be made at an evidentiary
hearing. There may be reasons to question their credibility, but the ultimate
determination on their credibility must await the judge's consideration of their
live testimony. State v. Porter, 216 N.J. 343, 347 (2013) (quoting State v. Pyatt,
316 N.J. Super. 46, 51 (App. Div. 1998)) ("Assessment of credibility is the kind
of determination 'best made through an evidentiary proceeding with all its
explorative benefits, including the truth-revealing power which the opportunity
to cross-examine bestows.'"); State v. L.G.-M, 462 N.J. Super. 357, 367 (App.
Div. 2020).
The State argues that trial counsel had a good strategic reason for not
calling any of these three witnesses. The record before us, however , does not
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include evidence that defendant's trial counsel made such a strategic decision.
It is easy enough to present such evidence at an evidentiary hearing by calling
defense counsel and hearing his testimony. We do agree with the State that, if
defense counsel credibly testifies that he made a reasonable strategic decision
not to call any of these three witnesses, defendant would not be able to establish
that his counsel had been ineffective. In that regard, the law is well established
that trial counsel's reasonable strategic decisions cannot be grounds for granting
PCR. Nash, 212 N.J. at 542-43 (citing Strickland, 466 U.S. at 687); State v.
Hooper, 459 N.J. Super. 157, 176 (App. Div. 2019) (citations omitted).
The PCR judge also found that defendant failed to establish the second
prong of the Strickland test – the prejudice prong. Without an evidentiary
hearing and an understanding of the significance and weight of what the three
witnesses might have contributed, consideration of the second prong of the
Strickland test was premature.
In summary, we remand for a limited evidentiary hearing. The only issue
that warrants an evidentiary hearing is defendant's contention that his trial
counsel was ineffective in failing to call Gephart, Foster, and Muldrow. The
evidentiary hearing need not be an extensive hearing. If trial counsel testifies
he made a strategic decision – and that decision is shown to be reasonable – that
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may be all that is necessary. In addition, it would not be difficult to hear the
testimony of Gephart, Foster, or Muldrow and assess their credibility and
whether such testimony supports a claim of ineffective assistance of counsel.
Finally, we want to clarify that defendant has raised numerous arguments
concerning ineffective assistance of trial and appellate counsel. A de novo
review of the record establishes that he has failed to make a prima facie showing
on any grounds other than the alleged failure to call the three witnesses.
Affirmed in part, reversed in part, and remanded for an evidentiary
hearing. We do not retain jurisdiction.
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