                                NOT FOR PUBLICATION WITHOUT THE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-3126-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAYMOND E. TROXELL,

     Defendant-Appellant.
_______________________

                    Submitted December 2, 2019 – Decided March 2, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the State of New Jersey, Law Division,
                    Middlesex County, Indictment No. 09-02-0348.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Joie D. Piderit,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      A jury convicted defendant Raymond Troxell of the first-degree murder

of his business partner, Vincent Russo, and answered two specific

interrogatories that compelled the imposition of a life sentence without parole

pursuant to N.J.S.A. 2C:11-3(b)(4). State v. Troxell, 434 N.J. Super. 502, 504

(App. Div. 2014).       The Supreme Court denied defendant's petition for

certification. 221 N.J. 285 (2014).

      We summarized most of the salient evidence at trial in our prior opinion.

Id. at 505–08. A key State's witness was John Kissel, defendant's long-time

friend to whom defendant offered $3000 to kill Russo. Id. at 506. Kissel's

testimony critically tied defendant to co-defendant, Frank Marsh, who the State

alleged defendant paid to ultimately execute the murder. Id. at 506–07.1

      Defendant filed a pro se petition for post-conviction relief (PCR) alleging

ineffective assistance of trial counsel (IAC) and asserting six specific failings

that demonstrated deficient performance.         Defendant contended that trial

counsel failed to investigate the State's evidence regarding Marsh's involvement,

failed to call Marsh as a witness, failed to call an expert to challenge the State's


1
   Marsh was tried separately, convicted, and sentenced to a mandatory life
sentence without parole. State v. Marsh, No. A-6279-10 (App. Div. Oct. 16,
2014) (slip op. at 2).
                                                                            A-3126-17T3
                                         2
evidence of Marsh's involvement, failed to call "material witnesses favorable to

the defense," failed to adequately cross-examine the State's witnesses and failed

to investigate and call an expert regarding "Marsh's cell phone activity around

the time of the crime."

      After the appointment of PCR counsel and with his assistance, defendant

filed a supplemental certification expounding on the IAC claims. In large part,

these were criticisms of trial counsel's failure to call allegedly exculpatory

witnesses at trial, although the appellate record fails to include any certifications

or affidavits from these purported exculpatory witnesses.             Additionally,

defendant criticized trial counsel's failure to challenge the State's contention that

defendant withdrew a large sum of money from the business's bank account to

pay Marsh. Defendant certified that he gave trial counsel a bank check issued

the same day as the withdrawal and made payable to the landlord who owned

the business premises.

       In a written opinion, the PCR judge, who was not the trial judge,

synthesized defendant's IAC assertions into two categories. First, that trial

counsel failed to investigate defendant's "prescription drug use and lack of

sleep" contemporaneous to multiple statements defendant provided to police

during their investigation. See id. at 508. The PCR judge concluded defendant


                                                                             A-3126-17T3
                                         3
failed to establish a prima facie case warranting an evidentiary hearing as to this

claim.

      Defendant's second claim was that trial counsel failed to use "available

evidence that important portions of . . . Kissel's testimony were false." The

"available evidence" included Marsh's cell phone records, which were produced

at trial. These records demonstrated calls Marsh made contradicted Kissel's

testimony about the timing of certain events, including a meeting at defendant's

house, where defendant, Kissel and Marsh were present, and Kissel saw

defendant with a large "wad" of cash.            Although trial counsel's cross-

examination of Kissel was quite vigorous, he never confronted Kissel with

Marsh's phone records.      The PCR judge granted defendant an evidentiary

hearing "for the limited purpose of exploring trial counsel's decision to cross-

examine . . . Kissel without utilizing cell phone records to contradict the veracity

of his testimony." 2




2
  The judge did not address any of the other claims made in the certifications
supporting the PCR petition. We have not been provided with a copy of
defendant's PCR brief, and, the transcript of oral argument reveals that PCR
counsel focused on the two contentions cited by the judge, and mentioned, in
passing, defendant's claim regarding the bank check.


                                                                            A-3126-17T3
                                         4
      A second PCR judge conducted an evidentiary hearing at which

defendant's trial counsel was the sole witness. 3 In his written statement of

reasons, the judge recounted trial counsel's testimony, which he found credible,

and noted that although counsel was aware of the cell phone records, he

"deliberately chose not to cross-examine . . . Kissel . . . because he did not want

to give . . . Kissel an opportunity to rehabilitate himself." Instead, trial counsel

used the cell phone records during summation "to discredit . . . Kissel's

testimony."     The judge found trial counsel made a "reasonable strategic

decision[]" not to cross-examine Kissel with the cell phone records. The judge

concluded trial counsel's performance was not deficient and denied defendant's

PCR petition.

      Before us, defendant raises the following argument:

              POINT I

              DEFENDANT'S  CONVICTIONS  MUST  BE
              REVERSED BECAUSE TRIAL COUNSEL WAS

3
   Defendant proffered an expert's report from Patrick Cronin regarding cell
tower tracking. We have not been furnished with a copy of the report. The State
objected, arguing the sole issue to be resolved at the hearing was trial counsel's
decision not to use the cell phone records during cross-examination of Kissel.
The judge sustained the State's objection, holding that the subject was not a valid
area for expert testimony. Defendant has not challenged the exclusion of
Cronin's testimony on appeal.



                                                                            A-3126-17T3
                                         5
             INEFFECTIVE FOR NOT CROSS-EXAMINING THE
             STATE'S  PRINCIPAL   WITNESS   WITHOUT
             UTILIZING THE CELL[]PHONE RECORDS TO
             IMPUGN HIS VERACITY.

Defendant raises the following points in a pro se supplemental brief:

             POINT I

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PCR PETITION AS THE EVIDENCE
             ADDUCED AT THE EVIDENTIARY HEARING
             DEMONSTRATED THE STATE USED FALSE
             EVIDENCE    TO    OBTAIN     DEFENDANT'S
             CONVICTION    IN   VIOLATION     OF   HIS
             FOURTEENTH AMENDMENT RIGHT TO DUE
             PROCESS AND A FAIR TRIAL.

             POINT II

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PCR PETITION AS THE EVIDENCE
             ADDUCED AT THE EVIDENTIARY HEARING
             DEMONSTRATED THE STATE COMMITTED A
             BRADY[4] VIOLATION WHEN IT FAILED TO
             TURN OVER TO DEFENSE MATERIAL EVIDENCE
             FAVORABLE TO THE DEFENDANT.

             POINT III

             THE PCR COURT ERRED IN FINDING THAT
             TRIAL COUNSEL EXERCISED REASONABLE
             TRIAL STRATEGY AS COUNSEL CANNOT
             ACQUIESCE TO A VIOLATION OF DEFENANT'S
             RIGHT TO DUE PROCESS RIGHT AND A FAIR
             TRIAL.

4
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                        A-3126-17T3
                                       6
             POINT IV

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PETITION WHEN IT FAILED TO
             RECOGNIZE[] THE STATE'S BLATANT AND
             CONTINUAL MISCONDUCT WHICH VIOLATED
             DEFENDANT'S FOURTEENTH AMENDMENT
             RIGHT TO DUE PROCESS AND A FAIR TRIAL.

             POINT V

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PETITION WHEN IT REFUSED TO
             CONSIDER DEFEDANT'S OTHER CLAIMS
             THEREBY DENYING HIM DUE PROCESS AND A
             FAIR HEARING.[5]

             POINT VI

             THE PCR COURT ERRED WHEN IT REFUSED TO
             CONSIDER THE MERITS OF DEFENDANT'S
             CLAIM THAT HE IS ACTUALLY INNOCENT, AND
             THE CONVICTION IS AGAINST THE WEIGHT OF
             THE EVIDENCE, WHICH VIOLATED HIS RIGHT
             TO EFFECTIVE ASSISTANCE OF COUNSEL AND
             DUE PROCESS AS AFFORDED HIM BY THE
             SIXTH AND FOURTEENTH AMENDMENTS TO
             THE UNITED STATES CONSTITUTION AND
             ARTICLE [1], PARAGRAPH 10 OF THE NEW
             JERSEY CONSTITUTION.

Having considered these arguments in light of the record and applicable legal

standards, we affirm.



5
    We have omitted the subpoints in Points V and VI.
                                                                      A-3126-17T3
                                       7
                                         I.

      To establish an IAC claim, a defendant must satisfy the two-prong test

formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must

show "that counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting

Strickland, 466 U.S. at 687). Second, a defendant must show by a "reasonable

probability" that the deficient performance affected the outcome. Fritz, 105 N.J.

at 58.   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting

Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52).

      Importantly, "[o]ur standard of review is necessarily deferential to a PCR

court's factual findings . . . that are supported by sufficient credible evidence in

the record." State v. Nash, 212 N.J. 518, 540 (2013) (citing State v. Harris, 181

N.J. 391, 415 (2004)). We review de novo, however, the trial court's application

of those facts to the legal principles involved. Harris, 181 N.J. at 416.

      In assessing defendant's claim, we "give great deference to counsel's

performance and must strongly presume that the attorney's conduct constituted

reasonable professional assistance[,]" State v. Petrozelli, 351 N.J. Super. 14,


                                                                            A-3126-17T3
                                         8
21–22 (App. Div. 2002), remaining wary in order to "avoid viewing the

performance under the 'distorting effects of hindsight.'" State v. Norman, 151

N.J. 5, 37 (1997) (quoting Strickland, 466 U.S. at 689). "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 [a] defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006)

(citing State v. Marshall, 123 N.J. 1, 165 (1991)).

      In this case, the PCR judge had the opportunity to hear and see trial

counsel's testimony, which he judged credible.           He accepted counsel's

explanation why he did not confront Kissel with the phone records during cross-

examination, choosing, instead, to deliver a blow to Kissel's credibility on

summation, when the witness would be unable to explain away inconsistencies.

      Moreover, as trial counsel explained, the divergence between Kissel's

timeline and contrary implications from the phone records was not critical to the

overall defense strategy. After all, in his statement to police, defendant admitted

offering money to Marsh to kill Russo, but he claimed the offer was in jest and

he never thought Marsh would go through with the murder. Defendant admitted

giving money to Kissel to give to Marsh but claimed he did so out of fear after

finding out Marsh actually had killed Russo.


                                                                           A-3126-17T3
                                        9
      Kissel's testimony about seeing Marsh at defendant's home and what

transpired on the evening of the murder was undoubtedly important. However,

trial counsel was able to establish through the State's investigator that Marsh's

phone was using certain cell towers at various times, and that it was unlikely

Marsh could have been at defendant's home when Kissel claimed he was. Trial

counsel drove the point home in summation. The tactic was effective, because,

in summation, the prosecutor acknowledged that defendant's version of the

timing of the evening's events made "more sense" than Kissel's based on the

location information in Marsh's phone records. The prosecutor nonetheless

urged the jury to believe Kissel's version based on other evidence in the record.

      Generally, "strategic miscalculations or trial mistakes are insufficient to

warrant reversal 'except in those rare instances where they are of such magnitude

as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, 187 N.J. at

315 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42

(1991)). Counsel's "strategic choices made after a thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable[.]"

Strickland, 466 U.S. at 690. We reject defendant's claim that trial counsel

rendered deficient performance because he failed to cross-examine Kissel with

the cell phone records.


                                                                         A-3126-17T3
                                      10
                                        II.

      We are unpersuaded by any of the points defendant raises in his pro se

supplemental brief, some of which were never raised before, either on direct

appeal or before the PCR judges.

      The arguments defendant raises in Points I, III and IV of his supplemental

brief require some explication. During colloquy at the PCR evidentiary hearing,

but before trial counsel testified, the assistant prosecutor, who was not the trial

prosecutor, presented a timeline for the sequence of events on the evening of the

murder that was contrary to that argued by the prosecutor at trial.            She

acknowledged that Kissel's trial testimony was inconsistent with the cell phone

records, but that the information "was all presented to the jury."

      Defendant contends the State solicited false information at trial, because

the trial prosecutor knew Kissel's version of events was false. He asserts that

the judge erred in finding trial counsel made a reasonable strategic decision in

not using the phone records to cross-examine Kissel, because the Rules of

Professional Conduct (RPC) and other professional standards prohibit an

attorney from offering evidence he knows is false. Defendant also argues that

the State's shifting assertions about the timeline of critical events amounts to




                                                                           A-3126-17T3
                                       11
misconduct, and that any version of events other than those proposed by the

State at trial is barred by the doctrine of judicial estoppel.

      None of these contentions were specifically raised before either PCR

judge. See State v. Witt, 223 N.J. 409, 419 (2015) ("[W]ith few exceptions, 'our

appellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available.'" (quoting State v. Robinson, 200 N.J. 1, 20 (2009))). Nevertheless,

as already noted, inconsistencies between the phone records and Kissel's

testimony were laid bare for the jury, and the prosecutor acknowledged those

inconsistencies. Kissel himself testified that he generally was "not that sure

about the times," and admitted that he had memory problems that affected his

recall.   There is no evidence that the prosecutor solicited false testimony.

Moreover, there is no evidence that trial counsel violated any RPC, or testified

falsely at the PCR hearing, as defendant also claims. The PCR prosecutor's

mistaken recollection of the trial record is not the equivalent of misconduct, nor

did the PCR judge rely on her misstatements in deciding whether trial counsel

provided ineffective assistance. Defendant's assertion that judicial estoppel

applies and should result in reversal of his conviction lacks sufficient merit to

warrant discussion. R. 2:11-3(e)(2).


                                                                          A-3126-17T3
                                        12
      In Point II, defendant argues the State committed a Brady violation

because before trial it did not provide underlying phone subscriber information

contained on spreadsheets that the State's investigator prepared for presentation

during his testimony. The issue was never raised before the PCR judge, nor was

it raised on direct appeal. See R. 3:22-4(a) (barring claims that could have been

raised on direct appeal but were not). Nonetheless, the trial record is clear.

Defense counsel had all the information, albeit not organized in the same format

as the spreadsheets the investigator prepared for his testimony. Following

counsel's objection, the trial judge ordered the State to provide copies of the

spreadsheets before permitting the State to use the exhibits at trial.         The

argument merits no further discussion. R. 2:11-3(e)(2).

      In Point V, defendant contends the PCR court erred by limiting the

evidentiary hearing to a single issue and by failing to address other points raised

in the petition. However, other than reiterating the judicial estoppel argument,

the only argument defendant briefs on this point is the claim that trial counsel

provided ineffective assistance because he failed to introduce evidence that

monies withdrawn from the business's account were used to pay rent, not to pay

Marsh.




                                                                           A-3126-17T3
                                       13
      We have already acknowledged that PCR counsel referenced the issue

during oral argument before the first PCR judge, and the judge never addressed

the issue in his written decision. While we do not condone the oversight, our

own review of the record leads us to conclude that the judge did not mistake nly

exercise his discretion in denying any evidentiary hearing on the issue and

impliedly rejecting defendant's IAC claim in this regard.

      We review denial of an evidentiary hearing for an abuse of discretion.

State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). A defendant is

only entitled to an evidentiary hearing on an IAC claim if he makes a prima facie

showing demonstrating a reasonable likelihood of success under both prongs of

the Strickland/Fritz test. R. 3:22-10(b).

      In his certification, defendant alleged that trial counsel "failed to present

substantial evidence relating to financial transactions" surrounding defendant's

withdrawal of cash from the business account. Defendant stated that he provided

trial counsel with a copy of a bank check and deposit stamp showing his landlord

deposited the check for $2350 into his account one week before Russo's murder.

The check is in the appellate record, but there is no indication that it was

produced at trial.




                                                                           A-3126-17T3
                                       14
      Even though the first PCR judge ordered an evidentiary hearing limited to

trial counsel's decision regarding Marsh's phone records, during the hearing

defendant's PCR counsel questioned trial counsel about the check. Trial counsel

said he had no recollection of it. Defendant did not testify at the PCR hearing,

so his IAC claim rests solely on his certification. Assuming arguendo that

defendant provided trial counsel with a copy of the deposited bank check, his

failure to introduce the check in evidence at trial, even if deficient, does not

satisfy the second prong of the Strickland/Fritz test.

      The record clearly established that trial counsel rebutted the State's theory

that defendant's withdrawal was used to pay Marsh. While cross-examining the

prosecutor's investigator, trial counsel solicited testimony that the $2350

withdrawn from the business account in December 2008 was the same amount

as a canceled check that defendant had paid the business's landlord in November.

Counsel reiterated the point in summation, arguing that the withdrawal was a

rent payment. In his summation, the trial prosecutor conceded that the amount

withdrawn "seemed to coincide with the rent payment," adding that the jury

"could have a reasonable doubt" about whether defendant had used the

withdrawn cash to pay Marsh.




                                                                           A-3126-17T3
                                       15
      Even if trial counsel's failure to introduce the check demonstrated

deficient performance, defendant failed to prove there was a "reasonable

probability" that the deficient performance affected the outcome. Fritz, 105 N.J.

at 58.   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Pierre, 223 N.J. at 583 (quoting Strickland, 466

U.S. at 694; Fritz, 105 N.J. at 52.). Defendant failed to make a prima facie case

of ineffective assistance on this issue.

      To the extent we have failed to specifically address defendant's remaining

arguments, including those raised in Point VI, they are either procedurally

barred by Rule 3:22-4(a), or lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-3126-17T3
                                           16
