                                NOT FOR PUBLICATION WITHOUT THE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-3168-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KEITH L. WILLIAMS,

     Defendant-Appellant.
__________________________

                   Submitted May 27, 2020 – Decided July16, 2020

                   Before Judges Accurso and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 09-03-0234.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Timothy P. McCann, Assistant
                   Prosecutor, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Keith Williams appeals from a January 28, 2019 order denying

his petition for post-conviction relief (PCR).      The PCR court heard oral

argument, determined that defendant had not made a prima facie showing his

trial or appellate counsel provided ineffective assistance and, therefore, an

evidentiary hearing was not necessary. Defendant contends that his various

allegations of ineffective assistance of counsel warranted an evidentiary hearing.

We disagree and affirm.

                                        I.

      On May 1, 2008, twenty-year-old Arrel Bell was found dead in a park in

Trenton. Following an investigation, defendant and three co-defendants were

indicted for first-degree conspiracy to commit murder.        At trial, the State

presented evidence that defendant was a senior member of the Bloods street gang

and he authorized Bell's murder after Bell implicated a co-defendant in two

armed robberies.

      A jury convicted defendant of first-degree conspiracy to commit murder,

N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-2. He was sentenced to twenty years

in prison with periods of parole ineligibility as prescribed by the No Early

Release Act, N.J.S.A. 2C:43-7.2.




                                                                          A-3168-18T2
                                        2
      Defendant appealed and we affirmed his convictions and sentence. State

v. Williams, No. A-6176-12 (App. Div. June 14, 2016). In that opinion, we

detailed the facts and procedural history and, therefore, we need not repeat those

details in this opinion.   The Supreme Court denied certification.       State v.

Williams, 228 N.J. 401 (2016).

      In February 2017, defendant filed a petition for PCR. He was assigned

counsel and, with the assistance of counsel, supplemented his papers and filed

additional certifications. The PCR court then heard oral argument on January

11, 2019. Later that month, on January 28, 2019, the PCR court issued an order

and opinion denying defendant's petition.

                                       II.

      On appeal, defendant makes six arguments contending that he was entitled

to an evidentiary hearing on his allegations that his prior trial and appellate

counsel were ineffective. His PCR counsel articulates his first five arguments

as follows:

              POINT ONE – THE PCR COURT ERRED IN
              DENYING DEFENDANT AN EVIDENTIARY
              HEARING BECAUSE TESTIMONY IS NEEDED
              REGARDING TRIAL COUNSEL'S FAILURE TO
              ARGUE DEFENDANT'S POLICE DETAINMENT
              AND   SUBSEQUENT   CONFESSION   WERE
              ILLEGALLY   OBTAINED  AS    HE   WAS


                                                                          A-3168-18T2
                                        3
INVOLUNTARILY TAKEN FROM HIS HOME BY
POLICE, BELIEVING HE WAS UNDER ARREST.

POINT TWO – THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING BECAUSE TESTIMONY IS NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
HAVE DEFENDANT TESTIFY AT HIS MIRANDA
HEARING.

POINT THREE – THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING   AS   TESTIMONY   IS  NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
HAVE JUROR #8 AND JUROR #9 REMOVED
FROM THE JURY PANEL DUE TO PREJUDICIAL
COMMENTS MADE BY JUROR #9 TO JUROR #8
THAT MAY HAVE TAINTED HER BELIEF OF
DEFENDANT'S INNOCENCE.

POINT FOUR – THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING AS TRIAL COUNSEL MUST EXPLAIN
HIS DECISION TO REFERENCE TO THE JURY
THE REDACTED PORTIONS OF DEFENDANT'S
STATEMENT TO POLICE.

POINT FIVE – THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING   AS  TESTIMONY     IS   NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
OBJECT   TO   PREJUDICIAL     TESTIMONY
REGARDING THE DETAILS OF THE VICTIM'S
MURDER AS WELL AS TO THE PUBLICATION OF
AUTOPSY PHOTOS.




                                          A-3168-18T2
                   4
      Defendant also submitted his own supplemental brief where he added a

sixth argument:

             [POINT SIX] – DEFENDANT WAS DENIED HIS
             6TH AMENDMENT RIGHT WHEN THE PCR
             COURT FAILED TO CONSIDER HIS CLAIM
             REGARDING APPELLATE COUNSEL'S FAILURE
             TO RAISE THE ISSUE THAT TRIAL COUNSEL
             FAILED TO HAVE JUROR #8 & #9 EXCUSED, AND
             THE REMAINING JURORS QUESTIONED, OR
             PROVIDE AN EVIDENTIARY HEARING TO
             FURTHER DEVELOP THE RECORD.

      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, 58-59 (adopting the

Strickland test in New Jersey).      The defendant must establish "a reasonable

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

would have been different." Strickland, 466 U.S. at 694. The defendant must

affirmatively prove prejudice to the defense. Ibid.

      Rule 3:22-10(b) provides that a defendant is only entitled to an evidentiary

hearing on a PCR petition if he establishes a prima facie case in support of PCR.

To establish a prima facie case, a defendant must demonstrate "the reasonable


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                                          5
likelihood of succeeding under the test set forth in Strickland." State v. Preciose,

129 N.J. 451, 463 (1992). Moreover, there must be "material issues of disputed

fact that cannot be resolved by reference to the existing record," and the court

must determine that "an evidentiary hearing is necessary to resolve the claims

for relief." State v. Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)).

All of defendant's arguments fail because he cannot show any prejudice.

       His first two arguments are related. First, he contends that his trial counsel

was ineffective in failing to argue that the police detained him illegally before

he gave his statement. Second, he argues that his counsel was ineffective in

failing to call him to testify at his Miranda1 hearing because he would have

explained how he was illegally arrested before he gave his statement.              To

establish prejudice, defendant must show a reasonable probability that his

statement to the police would have been suppressed because of his alleged illegal

arrest. Defendant cannot make such a showing.

       Before trial, the trial court conducted a hearing on the admissibility of

defendant's statement. After hearing the evidence, the court determined that the

statement was admissible because defendant was advised of his Miranda rights,




1
    Arizona v. Miranda, 384 U.S. 436 (1966).
                                                                             A-3168-18T2
                                          6
he voluntarily, intelligently, and knowingly waived those rights, and agreed to

speak with the police.

      Defendant now argues that he never agreed to go with the police before

he gave his statement. The flaw with that argument is that, if the police had the

right to arrest defendant, he could have been taken into custody and his statement

would still have been admissible because he was given Miranda warnings and

waived his rights. See State v. Bell, 388 N.J. Super. 629, 636-37 (App. Div.

2006); accord New York v. Harris, 495 U.S. 14, 17 (1990) (holding that the

exclusionary rule did not apply to a confession at a police station made by a

defendant arrested in his home, even when the police entered the home illegally

because the police had probable cause for the arrest).

      The record establishes that there was probable cause to arrest defendant

when the police executed the warrant to search his home. That warrant was

executed just before he was taken to the police station where he gave his

statement. At that point in their investigation, the police had already seen

communications on MySpace where defendant and his co-defendants had

conspired to murder Bell. The police had also already executed a warrant to

search the home of Karim Sampson, a co-defendant, and they had seized

Sampson's computer. Thus, by the time they executed the warrant at defendant's


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                                        7
home, the police had probable cause to believe that he had conspired to murder

Bell and they could have arrested him.

      In short, defendant can show no prejudice because even if he had been

arrested, that arrest would have been legal, and he thereafter waived his Miranda

rights. Accordingly, his statement would have been admitted even if his trial

counsel had argued that he had been arrested before he gave the statement and

even if defendant had testified at his Miranda hearing concerning his alleged

illegal arrest.

      In his third and sixth arguments, defendant contends that his trial and

appellate counsel were ineffective in not moving to excuse two jurors – juror

eight and juror nine – or in not raising that issue on direct appeal. During trial,

juror eight heard juror nine make a comment: "Why do people do the things

they do." The trial court was made aware of that comment and questioned both

juror eight and nine. The prosecutor and defense counsel were also allowed to

question those jurors. Both jurors testified that they still had open minds and

that any comment made had no effect on their ability to keep an open mind and

hear the evidence. Consequently, even if counsel had moved to exclude the

jurors, that motion would not have had a reasonable chance of success and,

therefore, defendant can show no prejudice. See State v. Brown, 442 N.J. Super.


                                                                           A-3168-18T2
                                         8
153, 179-80 (App. Div. 2015) (quoting State v. Loftin, 191 N.J. 172, 187 (2007))

(explaining that a juror should be excluded if he or she cannot "review the

evidence dispassionately through the light of reason").

      In his fourth argument, defendant contends that his trial counsel was

ineffective in referencing redacted portions of his statement in front of the jury.

A de novo review of the record establishes that the portions of defendant's

statement referenced by defense counsel did not materially add to the portions

of defendant's statement that had already been admitted for the jury's

consideration. Therefore, defendant can show no prejudice because defense

counsel was trying to persuade the jury that defendant had embellished his

statement and his argument was not prejudicial to defendant.

      Finally, in his fifth argument, defendant contends that his trial counsel

was ineffective in failing to object to certain prejudicial testimony regarding

Bell's murder and the publication of autopsy photographs.             The record

establishes that the testimony concerning Bell's murder and the autopsy

photographs shown to the jury were relevant, authenticated, and admissible.

Accordingly, even if trial counsel had made objections, there is no reasonable

showing that the objections would have been successful. See State v. Abdullah,

372 N.J. Super. 252, 270-71 (App. Div. 2004) (citation omitted) (explaining that


                                                                           A-3168-18T2
                                        9
photographs of a victim are admissible unless their probative value is so

significantly outweighed by their inflammatory potential as to have a probable

capacity to divert the minds of the jurors from a reasonable and fair evaluation

of the basic issue of guilt or innocence), rev'd on other grounds, 184 N.J. 497

(2005). Moreover, even if that evidence had been excluded, there was sufficient

other evidence on which the jury could have convicted defendant of conspiring

to murder Bell. See Strickland, 466 U.S. at 695.

      In summary, having conducted a de novo review, defendant has failed to

make a prima facie showing that his prior counsel's alleged errors caused him

any prejudice. Thus, he was not entitled to an evidentiary hearing and the PCR

court properly denied his petition.

      Affirmed.




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