STATE OF NEW JERSEY VS. ROBBY R. WILLIS STATE OF NEW JERSEY VS. MARCUS S. WHITE (10-08-0841, BURLINGTON COUNTY AND STATEWIDE) (CONSOLIDATED)

S
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4040-18
                                                                   A-4456-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBBY R. WILLIS, a/k/a
ROBERT WILLIS, RANDY
WILLIS, ROBBY WILLIS,

     Defendant-Appellant.
________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARCUS S. WHITE, a/k/a
MARCUS WHITE, MARCUS
ST. CLAIR WHITE, DOT
MARCUS ST.CLAIR,
MARCUS ROBERTS,

     Defendant-Appellant.
_________________________
            Submitted October 19, 2020 – Decided March 31, 2021

            Before Judges Messano and Smith.

            On appeal from the Superior Court of New Jersey, Law
            Division, Burlington County, Indictment Nos. 10-08-
            0841.

            Joseph E. Krakora, Public Defender, attorney for
            appellant Robby R. Willis (Louis H. Miron, Designated
            Counsel, on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            appellant Marcus White (Andrew R. Burroughs,
            Designated Counsel, on the brief).

            Scott A. Coffina, Burlington County Prosecutor,
            attorney for respondent State of New Jersey (Alexis R.
            Agre, Assistant Prosecutor, of counsel and on the
            briefs).

PER CURIAM

      We consolidate these PCR appeals for disposition in a single opinion. For

the reasons set forth below, we affirm.

                                          I.

      We incorporate the procedural and factual history from our opinion on

both direct appeals in State v. White, Nos. A-5598-12, A-5611-12 (App. Div.

July 26, 2017) (slip op. at 1-2).




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      Following a joint trial, the jury found defendant Robby Willis guilty of

first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree robbery, N.J.S.A.

2C:15-1(a)(1); first-degree carjacking, N.J.S.A. 2C:15-2(a)(4); three counts of

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree

terroristic threats, N.J.S.A. 2C:12-3(a). The jury found co-defendant Marcus St.

Claire White guilty of robbery, carjacking, two counts of felony murder, and

unlawful possession of a handgun, but acquitted him of the other counts in the

indictment.

      After appropriate mergers, the judge sentenced Willis to: life

imprisonment, with an eighty-five percent period of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the felony murder

conviction; a consecutive thirty-year term of imprisonment, with a NERA parole

ineligibility period on the kidnapping conviction; a consecutive ten-year term of

imprisonment, with a five-year period of parole ineligibility pursuant to the

Graves Act, N.J.S.A. 2C:43-6(c), on the weapon possession conviction; and a

concurrent twenty-year term of imprisonment, with a NERA period of parole

ineligibility on the robbery conviction.


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      As to White, after appropriate mergers, the judge imposed a life sentence

with a NERA period of ineligibility on the felony murder conviction; a

concurrent twenty-year term of imprisonment with a NERA period of parole

ineligibility on the robbery conviction; and a consecutive ten-year term of

imprisonment, with a five-year parole ineligibility period under the Graves Act

for the weapon possession conviction.

                                            II.

      On September 2, 2009, police discovered the lifeless body of Lyudmilla

Bershteyn in a field in Mansfield Township, a short distance from the New

Jersey Turnpike. A witness who was jogging nearby told police he saw the

woman staggering in the field before she collapsed; another witness described

an SUV entering the road from a nearby wooded area at a high rate of speed.

The victim operated a property management company and was last seen earlier

in the morning of September 2 after inspecting an apartment in Philadelphia. At

the time, she was sitting in her silver 2009 Murano SUV. An autopsy revealed

she died from a single contact gunshot wound below her ear.

      In the morning of September 3, at approximately 1:30 a.m., Officer

Charles Coleman of the Summerton Police Department in South Carolina,

stopped a speeding silver Murano with Pennsylvania license plates driven by


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                                        4
Lenroy Laurance. Five other people were inside, including both defendants;

Willis's cousin, seventeen-year-old Kareem Harrison; White's girlfriend,

eighteen-year-old Shaniqua Williams; and Williams's half-sister, sixteen-year-

old Bacquea Thomas. Laurance could not produce a driver's license and, upon

producing Bershteyn's registration, he told the officer the SUV belonged to his

girlfriend's mother. The officer saw the occupants passing around a bag of

snacks, grew suspicious and ordered everyone out of the car. A subsequent

search of the Murano revealed three handguns, including one hidden inside the

snack bag, the victim's debit card and other personal items, a portable navigation

unit, an EZ-Pass transponder and a New Jersey Turnpike toll ticket. All six

individuals were taken into custody and South Carolina authorities confirmed

with Philadelphia police that the owner of the car had been reported missing.

Local police and members of the Burlington County Prosecutor's Office who

arrived in South Carolina questioned the occupants. Both defendants provided

statements that were introduced to the jury in redacted form. Police pieced

together events of the days leading up to, and following, the September 2

carjacking of Bershteyn.

      Williams, Thomas, and Harrison testified as State's witnesses at trial.

Harrison's testimony was critical to the State's case. He provided eyewitness


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                                        5
testimony of Bershteyn's abduction by himself, Laurance and Willis, and her

shooting death at Laurance's hand.          From the EZ-Pass transponder and

navigational device, the State introduced details of the SUV's location at various

points and times, which corroborated much of this testimony and placed the car

near the murder site at the time of the shooting.

      In his statement, White claimed he was not involved in the abduction o f

the victim but joined the others thereafter and knew she was in the car. He

remained in the SUV as Laurance dragged the victim into the field and shot her

with Harrison's gun.

      Willis denied any involvement at all and said he checked into an

employment and training agency the morning of September 2, but claimed he

was sent home without any work. He remained home all day until late in the

afternoon, when he and the others left for South Carolina. The State called a

witness from the employment and training agency who testified the program was

closed on September 2. The State introduced a letter, written by Willis to

Harrison while both were in jail, in which Willis expressed anger at Harrison's

"snitching," and told him to blame everything on Laurance.

      Defendants neither testified nor produced any witnesses at trial.




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                                        6
                                         III.

      The PCR appeals were heard by Judge Gerard H. Breland, who addressed

the defendants' claims in separate opinions.          We recount Judge Breland's

treatment of these claims separately.

                                                A.

      Willis alleged that his trial counsel was ineffective for five reasons: failing

to investigate alternative alibi theories; declining the court's offer of a curative

instruction on gang affiliation testimony; failing to object to the state's

comments in summation; failing to object to the state's comments in its opening

statement; and failing to object to the comments of the State and the victim's

family at sentencing. Willis also alleged his appellate counsel was ineffective

for failing to raise the issue of territorial jurisdiction on appeal.

      Willis first argued his trial counsel was ineffective for failing to

investigate an alibi he belatedly raised. Willis's alleged he was picked up by the

co-defendants at an Applebee's restaurant, and defense counsel should have

investigated to find corroborating video evidence. The trial judge found Willis

had given a video-recorded statement to police providing a different alibi; he

said in the statement he had been picked up at his house, not Applebee's. The

two teenage sisters in the car that day, Williams and Thomas, testified that Willis


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                                          7
was already in the car when they got in at Applebee's. The PCR judge concluded

that it was reasonable for trial counsel to not investigate Willis's Applebee's

claim, given his failure to provide that alibi to the police, the overwhelming

evidence at trial disproving the claim, and his failure to raise this defense at trial.

The judge found trial counsel's election not to investigate was not ineffective

assistance of counsel.

      Willis next argued trial counsel was ineffective for refusing the judge's

offer of a curative instruction after testimony alluding to the gang affiliation of

a co-defendant, Laurence. The PCR judge, after reviewing the trial record,

concluded that Willis' trial counsel promptly objected to the testimony and

moved for a mistrial. The mistrial motion was denied, and the judge proposed

a curative instruction to the jury, which trial counsel refused. The trial judge

gave the curative instruction to the jury anyway. The PCR judge expressly

found trial counsel's refusal of a curative instruction was consistent with his

mistrial motion strategy. The judge concluded that the trial counsel's act of

refusing the curative instruction was not ineffective assistance of counsel and

"was well within [a] wide range of reasonable professional assistance."

      Third, Willis argued his trial counsel was ineffective for failing to object

to various comments by the state during both openings and summations. Willis


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                                          8
argued his trial counsel should have objected during openings when the

prosecutor described the victim as a hardworking immigrant, and during

summation when the State offered several opinions about defense counsel's

theory of the case and trial tactics, including: arguing defense counsel attempted

to convince the jury to "misapply the law"; told the jury, "you've been

consistently urged by the defense to consider issues that are legally totally,

totally irrelevant and have no bearing under the law", stated that defense counsel

was making "inaccurate representations"; stated the defense was trying to "sell"

something to the jury that was "just not the truth"; and finally, argued to the jury

that, "this is like a big jigsaw puzzle. [Defense counsel wants] to start pulling

pieces of the puzzle to the point that you can't see the picture."

      The PCR judge found that all the statements were direct responses to

arguments raised by Willis' trial counsel. The judge found mentioning that the

victim was a hardworking immigrant was not egregious and did not deprive

defendant of a fair trial; and there was little likelihood that the state's comments

in its closing would have yielded sustainable objections. The PCR judge also

found the State's presentation of a video of Willis' accomplices sitting in a police

car during its opening was not egregious and did not deprive defendant of a fair

trial when there was subsequent trial testimony that he and his accomplices were


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                                         9
in police cars on August 30, 2009, and on September 3, 2009. The judge

concluded that it was a reasonable tactic for defense counsel not to object to the

statements, and there was no ineffective assistance of counsel based on these

arguments.

        Willis' PCR counsel raised an ineffectiveness of trial counsel claim based

on the failure to object to certain arguments made by the State and certain

statements made by the victim's family at sentencing. The PCR judge dismissed

these claims because they were resolved during the direct appeal. We affirmed

the sentence on appeal,1 and the PCR judge concluded that Willis made no

showing that the appropriate sentence was affected in any way by these remarks.

Willis also raised a PCR claim alleging appellate counsel should have appealed

the trial judge's dismissal of defendant's territorial jurisdiction defense. The

PCR judge quickly and properly dismissed this claim as "meritless," finding

that, in fact, Willis did not raise a territorial jurisdiction claim below, but rather

a personal jurisdiction defense.

        After dismissing Willis' pro se allegations of ineffective assistance of

counsel as "bald assertions," the PCR judge concluded that Willis' had not made

a prima facie claim in support of post-conviction relief, State v. Preciose, 129


1
    White, slip op. at 29.
                                                                                A-4040-18
                                         

10
N.J. 451

, 462 (1992). He found Willis did not make a case for an evidentiary

hearing and denied post-conviction relief.

                                             B.

      Given the joint trial, there was predictable overlap between White's PCR

arguments and those made by Willis. The PCR judge addressed White's claims

in a separate and thorough opinion. We will be brief where the arguments on

appeal and the findings before the PCR court are identical to Willis'.

      White argued ineffective assistance of his trial counsel for failing to object

to the State's comments about the victim's background and its use of video

showing White sitting in a police car during openings. White also argued in a

pro se brief that defense counsel should have objected to the trial judge's curative

instruction on the gang affiliation reference during testimony before the jury. In

both instances, the PCR judge rejected the claims, finding no ineffective

assistance of counsel for the same reasons he expressed in the Willis PCR

decision.

      White next argued that trial counsel was ineffective because he did not

seek an accomplice liability charge. The PCR judge rejected this claim, finding

that White had been charged only as a principal in the felony-murder. Further,

the PCR judge found that White himself asserted that he was "not involved in


                                                                              A-4040-18
                                        11
the crime at all." The State's theory of the case and White's defense of actual

innocence left White's case in a posture where the trial judge was not required

to provide an accomplice liability charge.

        White then argued that trial counsel was ineffective for failing to object

to a read-back of witness testimony that included street gang references. He

also argued that appellate counsel was ineffective for failing to appeal the denial

of trial counsel's mistrial motion. We resolved this issue on direct appeal,

concluding there was no prejudice at trial to Willis or White resulting from the

gang affiliation testimony, and that the trial judge gave proper curative

instructions. 2 Consequently, the PCR judge found that there was no prejudice

to White from the failure to object to the read back or to appeal the denial of the

mistrial motion.

        As with Willis, the PCR judge concluded White failed to make a prima

facie ineffective assistance of counsel case warranting an evidentiary hearing.

The judge denied both applications.

        Willis makes the following arguments on appeal:

               I. Defendant Was Deprived of His Constitutional Right
               to the Effective Assistance of Trial Counsel and
               Appellate Counsel Under the United States
               Constitution and the New Jersey Constitution.

2
    White, slip op. at 12.
                                                                             A-4040-18
                                        12
           A. Trial Counsel Deprived Defendant of a
           Fair Trial by Failing to Conduct a Full Pre-
           Trial Investigation and Rendered the Jury's
           Verdict as Fundamentally Unreliable.

           B. Trial Counsel Failed to Represent
           Defendant Effectively During the Course
           of the Trial Insofar as Counsel Failed to
           Accept the Trial Court's Proposal to
           Provide the Jury with a Curative Charge
           Concerning the Highly Prejudicial
           Reference to Gangs During the Testimony
           of the State's Witness.

           C. Trial Counsel Failed to Represent
           Defendant Effectively During Sentencing
           Insofar as Counsel Failed to Zealously
           Advocate for Defendant and Challenge the
           State's Highly Inflammatory Presentation
           of Witnesses and Facts.

     II. Defendant Was Deprived of His Constitutional Right
     to the Effective Assistance of Appellate Counsel
     Because Counsel Failed to Argue the Territorial
     Jurisdiction Issue Accurately.

     III. The PCR Court Abused its Discretion in Not
     Conducting an Evidentiary Hearing to Address
     Defendant's Claim.

In his brief, White makes the following arguments on appeal:

     I. As Mr. White Has Established, He Was Denied
     Ineffective Assistance of Trial and Appellate Counsel,
     the PCR Court Erred When It Denied His Petition for
     Post-Conviction Relief Without Holding             an
     Evidentiary Hearing.


                                                               A-4040-18
                               13
                  (1) Trial counsel's failure to make a timely
                  objection to the State's opening remarks
                  was prejudicial to his client's interest to
                  receive a fair and reliable trial.

                  (2) Trial counsel's failure to object to the
                  State playing a video showing Mr. White
                  detained in a police vehicle was
                  prejudicial.

                  (3) Trial counsel was ineffective for not
                  seeking an accomplice liability charge.

            II. Appellate Counsel Was Ineffective for Failing to
            Raise Certain Cognizable Claims on Direct Appeal.

                  (1) Appellate counsel failed to argue that
                  the trial court erred by not sua sponte
                  instructing the jury on accomplice liability.

                  (2) Appellate counsel was ineffective for
                  not appealing the denial of a mistrial and
                  the read-back of testimony concerning
                  gang affiliation.

            III. As There Were Genuine Issues of Material Facts in
            Dispute, an Evidentiary Hearing Was Required.

                                           IV.

      When petitioning for PCR, a defendant must establish he is entitled to

"PCR by a preponderance of the evidence." State v. O'Donnell, 

435 N.J. Super.

351

, 370 (App. Div. 2014) (quoting 

Preciose, 129 N.J. at 459

). We analyze

ineffective assistance of counsel claims by using the two-prong test established


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                                      14
by the Supreme Court in Strickland v. Washington, 

466 U.S. 668

, 694 (1984).

See 

Preciose, 129 N.J. at 463

; see also State v. Fritz, 

105 N.J. 42

, 58 (1987).

The first prong of the Strickland test requires a defendant to establish counsel's

performance was deficient. 

Preciose, 129 N.J. at 463

. "The second, and far

more difficult, prong is whether there exists 'a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different.'"

Id. at 463-64

(quoting 

Strickland, 466 U.S. at 694

).

      To obtain a new trial based on ineffective assistance of appellate counsel,

a defendant must establish that appellate counsel failed to raise an issue that

would have constituted reversible error on direct appeal. State v. Echols, 

199

N.J. 344

, 361 (2009).     Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

because the appellate court would have found either, that no error had occurred

or that it was harmless. State v. Reyes, 

140 N.J. 344

, 365 (1995); see also State

v. Harris, 

181 N.J. 391

, 499 (2004). Consequently, appellate counsel is not

required to raise every possible issue and need only raise issues that have a

reasonable possibility of success. State v. Gaither, 

396 N.J. Super. 508

, 515-16

(App. Div. 2007); see also State v. Morrison, 

215 N.J. Super. 540

, 549 (App.




                                                                            A-4040-18
                                       15
Div. 1987) (noting "appellate counsel does not have a constitutional duty to raise

every nonfrivolous issue requested by the defendant").

      There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. 

Strickland, 466 U.S. at 689

. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors by counsel

undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super

283, 290 (App. Div. 2002) (citing U.S. v. Cronic, 

466 U.S. 648

, 659 (1984)).

                                            V.

      Where a PCR court does not conduct an evidentiary hearing, we "conduct

a de novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake, 

444 N.J. Super. 285

, 294 (App. Div. 2016) (quoting

Harris, 181 N.J. at 421

). We find that neither Willis nor White have overcome

the "strong presumption that [trial] counsel rendered adequate assistance," and

that their respective counsel "exercise[d] reasonable professional judgment."

Strickland, 466 U.S. at 689

. After reviewing the extensive record and for the

reasons stated in Judge Breland's cogent written opinions, we are satisfied the

defendants failed to prove ineffective assistance of counsel, trial or appellate.

Preciose, 129 N.J. at 463

. For completeness' sake, we note that Willis and


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                                       16
White also failed to satisfy the second prong of Strickland. Neither defendant

showed their proceedings would have been different but for the errors they

alleged.

Id. at 463-64

. Prejudice cannot be presumed. Defendants failed to

draw the required nexus between "specific errors of counsel" and any harm to

the reliability of their trial. Drisco, 355 N.J. Super at 290 (citing 

Cronic, 466

U.S. at 659

). No evidentiary hearing is merited.

      Affirmed.




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