                                NOT FOR PUBLICATION WITHOUT THE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-4446-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DERRICK MILLER,
a/k/a DERRICK MAURICE
MILLER, DEREK M. MILLER,
DERRICK MILLER, JR.,

          Defendant-Appellant.

___________________________

                    Submitted May 6, 2020 – Decided May 26, 2020

                    Before Judges Koblitz and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-08-1559.

                    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 (Hannah Kurt,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Derrick Miller appeals from a March 29, 2019 order denying

his petition for post-conviction relief (PCR). We affirm for the reasons set forth

in Judge Marysol Rosero's thorough and well-written twenty-five-page decision.

      In 2011, Miller and his co-defendant Arthur Thompson were indicted on

the following eleven counts: second-degree conspiracy to commit robbery,

N.J.S.A 2C:5-2 and 2C:15-1; first-degree robbery, N.J.S.A 2C:15-l; first-degree

conspiracy to commit murder, N.J.S.A 2C:5-2 and 2C:ll-3(a)(l), (2); first-degree

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

3(a)(3); first-degree attempted murder, N.J.S.A 2C:5-l and 2C:ll-3; fourth-

degree aggravated assault, N.J.S.A 2C:12-l(b)(4); second-degree conspiracy to

commit burglary, N.J.S.A 2C:5-2 and 2C:18-2(b)(l); second-degree burglary,

N.J.S.A 2C:18-2(b)(1); second-degree unlawful possession of a weapon,

N.J.S.A 2C: 39-5(f); and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A 2C:39-4(a). Following a jury trial, Miller was convicted on all

counts.

      On appeal, we affirmed Miller's convictions and his sentence, and

recounted the underlying facts and evidence adduced at trial as follows:

                                                                           A-4446-18T1
                                        2
       Defendants' convictions arose out of a home
invasion and murder that occurred on January 18, 2010,
at a residence in Irvington . . . . The evidence at trial
established that the home was a two-family house
where an adult brother and sister lived with their
respective families. The sister, M.B., lived on the first
floor with her son, J.B., her daughter, and her
boyfriend, the victim, A.H. The brother, D.B., lived on
the second floor with his daughter, K.B., and his
granddaughter.

      In the late evening on January 18, 2010, M.B.
heard a banging noise and gunshots. She locked herself
in the bathroom and called 911. K.B. was doing
homework in her living room on the second floor and
she heard what sounded like glass shattering. She went
downstairs and saw A.H. on his knees with two men
standing on either side of him. One of the men had A.H.
in a headlock and another man was pointing a gun at
A.H. One of the men saw K.B. and pointed the gun at
her, prompting her to retreat upstairs.

      J.B. was in his downstairs bedroom when he first
heard a banging noise. He then went to his door and
saw a man hop over the counter into the kitchen area.
He could not see the man's face, but he saw a gun in the
man's hand. J.B. closed his bedroom door and heard a
gunshot and then heard three more gunshots. He
escaped by climbing out the window.

      D.B. was upstairs in bed when he heard a scuffle
erupt in the downstairs apartment.        Upon going
downstairs, D.B. saw two individuals in the home, one
wearing a "netted mask" and pointing a gun at A.H. and
another holding A.H. by the neck. The man pointed the
gun at D.B. and told him to "get the fuck out of there."
D.B. thereafter heard a gunshot and ran outside. As he
hid behind bushes, he heard more gunfire and saw two

                                                            A-4446-18T1
                           3
men get into a car and drive away. Prior to their
departure, D.B. was able to see the face of one of the
assailants.

      Almost immediately, the police responded to the
home. D.B. pointed in the direction of the car and
exclaimed to the police that "the car is right there[,]"
and "that's them, that's them." The responding police
officer testified that he followed the car and pulled it
over several blocks from the home. The males in the
vehicle were later identified as Miller and Thompson.
Thompson was arrested on an outstanding warrant at
the scene. Miller stayed with the vehicle.

       Shortly after pulling the car over, the police
brought D.B. to the scene. When D.B. arrived, Miller
was standing by the car in handcuffs. D.B. voluntarily
identified Miller to the police, saying "[t]hat's him."
D.B. initially said he identified Miller by his clothing,
but then retracted this statement and testified that he did
not tell the police at the time that he could identify
Miller by his face because he feared for his family's
safety. The detectives who escorted D.B. to the scene
testified that neither of them said anything to D.B.
during the ride over, and that D.B. made his statement
voluntarily. One of the detectives prepared a report
memorializing the positive identification, but failed to
include the words D.B. used.

      Back at the home, the police found A.H. lying
dead on the basement floor, having been shot three
times. The police conducted a series of follow-up
investigations and tests involving DNA sampling, soil
sampling, gunshot residue, and blood splattering.

      Prior to trial, the defendants moved to suppress
the out-of-court identification by D.B. Thompson also
moved to dismiss the indictment and sever the trials.

                                                              A-4446-18T1
                            4
              After conducting a Wade[1] hearing and taking
              testimony, the court denied the defendants' motions. As
              to the motion to suppress, the court found that the show-
              up, although "inherently suggestive," was neither
              "necessarily impermissibly suggestive nor . . .
              necessarily subvert[ed] the reliability of the
              identification." The defendants failed to "show a
              scintilla of probative evidence relating to
              [suggestiveness]     that    would      undermine      the
              identification."

                    Thereafter, the court held a twelve-day jury trial.
              Among other evidence, the State proffered numerous
              witnesses and expert opinions, including a forensic
              scientist specializing in serology (the study of blood
              serum) and a forensic scientist specializing in DNA
              analysis. The serology expert found traces of blood on
              Miller's white thermal shirt and dark blue-gray pants.
              The State's forensic scientist analyzed the DNA
              samples from this clothing and concluded the blood on
              the clothing was that of the victim, A.H.

              [State v. Miller, Nos. A-4022-12 and A-4055-12, slip
              op. at 7 (May 10, 2017).]

        In 2019, Judge Rosero heard Miller's PCR petition, which raised seven

grounds for post-conviction relief, and requested that the court hold an

evidentiary hearing. Relevant to the issues raised on this appeal, Miller argued

his trial counsel was ineffective because counsel failed to visit the scene of the

crime, locate witnesses, and hire an investigator to locate and interview



1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                           A-4446-18T1
                                          5
witnesses who would exculpate him. Miller provided a statement from a former

co-worker who stated Miller was with him and could not have committed the

crimes with Thompson, which Miller alleged was the sort of alibi evidence his

attorney failed to investigate. He also alleged his trial counsel coerced him into

not testifying.

      Judge Rosero rejected these arguments and found:

             [I]n regard to the alibi defense, the defendant points out
             trial counsel's failure to call [his alibi witness]. The
             defendant argues that . . . [the witness], whom provided
             a handwritten statement in support of this PCR petition,
             would have testified that at the time of the murder, the
             defendant was just getting off of work, and could
             therefore not have been at the scene of the crime when
             the alleged murder happened. . . .

                    In support of his alibi claim, the defendant
             provided only a written statement by [the witness], and
             not an affidavit. Even assuming [the witness] would
             have testified in a manner consistent with his statement,
             that is, that they worked together and the defendant
             "went home at 10:15pm when his ride picked him up."
             [The witnesses]'s statement would have corroborated
             the State's evidence that someone, identified at trial as
             the co-defendant, picked the defendant up after work
             and went off to commit the crime as [the witness] was
             not with the defendant after the defendant was picked
             up. [The witness] would have place[d] the defendant
             close to the crime scene on the date and time of the
             offense. Additionally, on cross, [the witness] would
             not have been able to explain why the defendant fit the
             description of the assailant, and was arrested after the
             911 call, in such close proximity to the time and place

                                                                          A-4446-18T1
                                         6
              of the incident, with the co-defendant, and with a stain
              of the victim's blood on his shirt.

                     As such, the [c]ourt finds that trial counsel was
              not ineffective by not interposing an alibi defense
              because [the witnesses]'s testimony would have
              corroborated the State's assertion that the defendant
              was picked up by the co-defendant at work, at around
              the time of the indictment, placing defendant in close
              proximity to the scene of the victim's home and giving
              him the opportunity to commit the alleged crime. This
              tactical decision by trial counsel did not constitute an
              error because calling . . . an alibi witness would have
              very well been more detrimental to the defendant than
              the omission of his testimony was. Hence, the
              defendant has failed to show that counsel's acts or
              omissions amount to more than mere tactical strategy.
              []State v. Davis, 116 N.J. 341, 357 (1989). As such, he
              has failed to establish a prima facie case under the
              Strickland[2] standard. Additionally, his claim is too
              speculative and a hearing would not aid the court as the
              issue can be resolved from the complete record.

        Regarding Miller's claim that he was coerced into not testifying, the judge

found:

              [T]he defendant alleges that trial counsel advised him
              not to testify because "he had an [eighty-five percent]
              chance of winning and he would certainly be convicted
              if he testified." . . . A comprehensive review of the
              record shows nothing expressly or implicitly of any
              coercion by defense counsel. On the contrary, the
              record clearly establishes that defendant's decision not
              to testify was his. His waiver was knowingly,


2
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                           A-4446-18T1
                                         7
voluntary, and without coercion.        The trial record
shows the following exchange:

     The Court: [Addressing defense counsel]
     [I]t's my understanding that Mr. Miller and
     Mr. Thompson have elected not to testify
     in their own defense; is that correct?

     [Miller's    counsel]:       That's       my
     understanding, [j]udge.

     The Court: Mind if I voir dire them?

     [Miller's counsel]: No, [j]udge.

     The Court: Mr. Miller, you've been
     represented      by      [defense    counsel]
     throughout this case—you can sit down,
     sir— . . . and you discussed the case,
     discussed the various defenses, so forth
     and so on. Now [counsel] tells me you've
     elected not to testify in you[r] own defense;
     is that correct?

     [Miller]: Yes.

     The Court: And has anybody forced you or
     coerced you, or pressured you, in any way
     to make that decision?

     Miller: No.

     The Court: You are doing that of your own
     free will?

     [Miller]: Yes.



                                                           A-4446-18T1
                          8
            The Court: After a full and complete
            consultation with [counsel]?

            [Miller]: Yes.

      The [d]efendant had the opportunity to notify the
      [j]udge that he was not making the voluntary and
      intelligent decision to waive his right to testify because
      he was being coerced by the trial counsel. Instead
      under oath, he told the [j]udge that he was not forced,
      coerced, or pressured in any way to make that decision,
      and that he was doing it of his own free will. As such,
      this [c]ourt finds that defendant's bald assertion that
      trial counsel was ineffective because he was coerced to
      waive his right to testify is not supported by the record,
      it is without merit, and as such, does not satisfy the first
      prong of the Strickland standard. The Court finds that
      based on the record, a hearing is not warranted as the
      defendant has not established a prima facie case under
      Strickland and there are no issues of material facts
      requiring a hearing.

Miller raises the following points on this appeal:

      THIS MATTER MUST BE REMANDED FOR AN
      EVIDENTIARY HEARING BECAUSE TRIAL
      COUNSEL WAS INEFFECTIVE FOR FAILING TO
      CONDUCT AN ADEQUATE INVESTIGATION,
      SPECIFICALLY FOR NOT OBTAINING AN ALIBI
      WITNESS, AND FOR ABRIDGING DEFENDANT'S
      CONSTITUTIONAL RIGHT TO TESTIFY.

            A.   Trial Counsel Failed To Conduct An
            Adequate Investigation, Specifically For Not
            Obtaining An Alibi Witness.

            B.   Trial Counsel Abridged              Defendant's
            Constitutional Right To Testify.

                                                                     A-4446-18T1
                                   9
      The Sixth Amendment of the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland, 466 U.S. at 686); see also State v. Fritz, 105 N.J. 42,

58 (1987). To succeed on a claim of ineffective assistance of counsel, the

defendant must meet the two-part test established by Strickland, 466 U.S. at 687,

which our Supreme Court adopted in Fritz, 105 N.J. at 58.

      Under Strickland, a defendant first must show his or her attorney made

errors "so serious that counsel was not functioning as the 'counsel' guaranteed

the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Counsel's

performance is deficient if it falls "below an objective standard of

reasonableness." Id. at 688.

      A defendant also must show counsel's "deficient performance prejudiced

the defense." Id. at 687. He or she must establish "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. "A reasonable probability

is a probability sufficient to undermine confidence in the outcome" of the

proceeding. Ibid.



                                                                          A-4446-18T1
                                       10
      We review a PCR court's decision to proceed without an evidentiary

hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A

defendant is entitled to an evidentiary hearing if he or she presents a prima facie

case supporting PCR, the court determines there are material issues of fact that

cannot be resolved based on the existing record, and the court finds that an

evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);

see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). The

court must "view the facts in the light most favorable to a defendant . . . ." State

v. Preciose, 129 N.J. 451, 462-63 (1992). A defendant "must do more than make

bald assertions," and must instead "allege facts sufficient to demonstrate

counsel's alleged substandard performance."         State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999).         "[V]ague, conclusory, or speculative"

allegations will not suffice. Porter, 216 N.J. at 355 (quoting Marshall, 148 N.J.

at 158).

      We agree with Judge Rosero's assessment that Miller's argument relating

to the alleged failure to investigate and raise an alibi defense is a bald assertion.

As the judge noted, defense counsel's pursuit of this alleged alibi would likely

have strengthened the prosecution because Miller worked close to the crime


                                                                             A-4446-18T1
                                        11
scene, was picked up from work by Thompson, and arrested in close proximity

to the crime scene, which would have established it was feasible for Miller to be

with the alibi witness and leave with enough time to commit his crimes. Miller's

assertions regarding the alibi defense are speculative.

      Finally, the record belies Miller's argument that he was coerced into not

testifying.   The trial judge carefully voir dired Miller, who clearly and

unequivocally waived his right to testify. This argument is without sufficient

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-4446-18T1
                                       12
