                                NOT FOR PUBLICATION WITHOUT THE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-4706-17T1


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FORREST THOMAS, a/k/a
MALIK FOREST, THOMAS
FORREST, FORREST MALIK,
FOREST THOMAS, and
TYRONE THOMAS,

     Defendant-Appellant.
_______________________________

                    Submitted April 2, 2019 – Decided May 17, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 10-07-1771.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kevin G. Byrnes, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
            Hanley, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant appeals from an order entered by the Law Division on May 21,

2018, which denied his petition for post-conviction relief (PCR). We affirm.

                                       I.

      On July 23, 2010, an Essex County grand jury returned an indictment

charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); and

second-degree disturbing human remains, N.J.S.A. 2C:22-1(a)(1). The alleged

victim was Carol Spratt.

      Defendant was tried before a jury and, at the trial, evidence was presented

which showed that in 2005, Spratt and her daughter Susan Rivas moved to an

apartment at New Community Gardens on Morris Avenue in Newark.

Defendant, who was Rivas's boyfriend, moved into the apartment with Spratt

and Rivas. Rivas died shortly thereafter, but defendant continued to reside in

the apartment with Spratt.

      Spratt suffered from emphysema and required an oxygen tank at all times.

She also used a wheelchair and rarely left the apartment. Spratt claimed that at

times defendant stole her rent money and food stamps, and also engaged in

                                                                         A-4706-17T1
                                       2
abusive behavior. In January 2010, Spratt had defendant permanently banned

from the building. Despite the ban, defendant returned a few days later. He was

escorted out of the building and the building's manager told him he could return

that day to collect his belongings.

      The State alleged that defendant returned to the apartment and killed

Spratt. According to the medical examiner, the perpetrator grabbed Spratt by

the wrists and compressed her neck with a significant, sustained force. That

force prevented Spratt from breathing, and stopped the flow of blood from her

heart to her head.

      Defendant kept Spratt's dead body in the apartment for the next several

days. On January 14, 2010, defendant called the aide who had provided care to

Spratt, and told her that Spratt had fallen, broken her ribs, and was in the

hospital. The aide went to the apartment the next day. Defendant exited the

apartment, closed the door quickly behind him, and told the aide that Spratt was

"okay."

      Defendant disposed of Spratt's body several days later. He placed the

body in two garbage bags, put the bags in a shopping cart, and covered the bags

with clothes and other items.         At around 3:00 a.m. on January 18, 2010,

defendant exited the building pushing the shopping cart. On his way out,


                                                                        A-4706-17T1
                                          3
defendant told the security guard he had collected his possessions and would not

be around anymore.

      Defendant discarded the body near a dumpster behind a building on South

Orange Avenue, and two scrap collectors discovered the body. The following

day, the building's superintendent saw a note on Spratt's door, which stated that

she should not be disturbed because she was tired and sleeping. Later that day,

defendant approached Spratt's neighbor and offered to sell him items from the

apartment. Defendant said Spratt had fallen, was in the hospital, and was

planning to move to Florida.

      On January 20, 2010, investigators from the Essex County Prosecutor's

Office went to Spratt's building and spoke with the manager, who identified

Spratt from an autopsy photo. The investigators were proceeding to Spratt's

apartment, when they encountered defendant. He told them he was going to visit

Spratt at the hospital. He agreed to be interviewed.

      At the police station, defendant was advised of his rights and provided a

statement. He claimed that he returned to the apartment on January 13 or 14,

2010, and found that Spratt had fallen. He claimed her oxygen cord was wound

around her neck and she was gasping for air.




                                                                         A-4706-17T1
                                       4
      Defendant said he picked Spratt up, unwrapped the cord, and put her in

bed. Spratt allegedly stated that she was all right. Several hours later, defendant

found Spratt dead. He admitted that three days later, he placed Spratt's body in

two garbage bags, put the body in a shopping cart, and left her near the dumpster

where the body was found.

      When the detectives left the interview room, defendant removed Spratt's

ATM and credit cards from his wallet and attempted to hide them behind the

molding in the interview room.       Defendant's actions were recorded by the

surveillance system.

      The jury found defendant guilty of murder and disturbing human remains.

The trial court thereafter sentenced defendant to life imprisonment for murder,

with sixty three and three-quarter years of parole ineligibility, pursuant to the

No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant

to a concurrent ten-year term for disturbing human remains. Defendant appealed

from the judgment of conviction and argued:

            POINT I
            DAMAGING HEARSAY STATEMENTS BY THE
            DECEDENT WERE IMPROPERLY ADMITTED
            INTO EVIDENCE OVER OBJECTION. WHILE THE
            DECEDENT'S    STATEMENTS         INDICATING
            SOLELY HER STATE OF MIND – I.E., HER INTENT
            TO HAVE [DEFENDANT] EVICTED – MAY HAVE
            BEEN ADMISSIBLE UNDER THE "STATE OF

                                                                           A-4706-17T1
                                        5
           MIND" HEARSAY EXCEPTION BECAUSE THEY
           PROVIDED A MOTIVE TO KILL, HER
           STATEMENTS DETAILING PRIOR BAD ACTS BY
           DEFENDANT    WERE    PLAINLY    SIMPLY
           INADMISSABLE HEARSAY WHICH CLEARLY
           TAINTED THE JURY'S DELIBERATIONS ON
           GUILT.

           POINT II
           UNDER     BOTH       THE      CONFRONTATION
           GUARANTEES OF THE SIXTH AMENDMENT (AS
           APPLIED TO THE STATES THROUGH THE DUE
           PROCESS CLAUSE OF THE FOURTEENTH
           AMENDMENT)          AND        THE    STATE
           CONSTITUTION, AS WELL AS UNDER OUR OWN
           STATE EVIDENCE RULES, THE ADMISSION IN
           THIS CASE, OF ONE MEDICAL EXAMINER'S
           FINDINGS THROUGH THE TESTIMONY OF
           ANOTHER MEDICAL EXAMINER WAS THE
           MOST BASIC OF VIOLATIONS OF DEFENDANT'S
           RIGHTS. (Not Raised Below)[.]

           POINT III
           WHEN THE JURORS REPORTED A DEADLOCK
           ON THE MURDER COUNT, THE JUDGE WAS
           OBLIGATED TO GIVE THE STATE v. CZACHOR[,
           82 N.J. 392, 1980)] DEADLOCK INSTRUCTION TO
           THEM. (Not Raised Below).

           [State v. Thomas, No. A-2706-12 (App. Div. Aug. 31,
           2015) (slip op. at 2) (footnote omitted).]

We rejected these arguments and affirmed defendant's convictions. Ibid. The

Supreme Court denied defendant's petition for certification. State v. Thomas,

223 N.J. 558 (2015).


                                                                     A-4706-17T1
                                     6
      In January 2016, defendant filed a petition for PCR. Defendant was

assigned counsel who argued that: (1) PCR claims must be thoroughly

investigated by counsel; (2) the court has authority to order discovery on a

showing of good cause; (3) defendant was denied due process because he "was

improperly excluded from . . . trial court proceedings"; (4) defendant was denied

the "right to testify on his own behalf"; (5) defendant was denied a fair trial due

to prosecutorial misconduct; (6) defendant was denied the right of confrontation

by the admission of the medical examiner's findings through the testimony of

another medical examiner; (7) the trial judge improperly handled the jury's

questions and the response to the jury's reported deadlock; (8) defendant "was

denied the effective assistance of trial counsel"; (9) defendant was denied a fair

trial due to the cumulative effect of the errors complained of; (10) defendant

"was denied the effective assistance of appellate counsel"; (11) an evidentiary

hearing is required on his PCR petition; and (12) the claims in the petition are

not subject to any procedural bar.

      On May 21, 2018, the PCR court filed an order denying relief. In an

accompanying opinion, the court stated that claims 3, 4, 5, 6, 7, and 9 were

barred by Rules 3:22-4 and 3:22-5 because they were raised or should have been

raised on defendant's direct appeal and the exceptions in Rule 3:22-4 did not


                                                                           A-4706-17T1
                                        7
apply. The court also found no merit in defendant's other claims, and determined

that defendant was not entitled to an evidentiary hearing on his petition. This

appeal followed.

      On appeal, defendant's attorney argues:

            POINT I
            THE DEFENDANT WAS DENIED A COMPLETE
            DEFENSE AS A RESULT OF INEFFECTIVE TRIAL
            COUNSEL, WHO FAILED TO INVESTIGATE THE
            CASE ADEQUATELY.

            POINT II
            THE PCR COURT ERRONEOUSLY APPLIED A
            PROCEDURAL BAR TO DEFENDANT'S PETITION
            FOR POST-CONVICTION RELIEF.

            POINT III
            TRIAL COUNSEL WAS INEFFECTIVE BECAUSE
            HE HAD OFF THE RECORD COMMUNICATIONS
            WITH     THE   TRIAL  COURT   AND   THE
            PROSECUTOR WITHOUT THE DEFENDANT AND
            HE FAILED TO INFORM THE DEFENDANT
            ABOUT      THE     NATURE   OF    THOSE
            COMMUNICATIONS.

            POINT IV
            THE DEFENDANT WAS COERCED INTO
            FORGOING HIS TESTIMONY DUE TO TRIAL
            COUNSEL'S INEFFECTIVE REPRESENTATION.

            POINT V
            TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
            TO OBJECT TO EGREGIOUS MISCONDUCT BY
            THE PROSECUTOR, AND APPELLATE COUNSEL
            WAS INEFFECTIVE IN FAILING TO RAISE

                                                                        A-4706-17T1
                                       8
PROSECUTORIAL   MISCONDUCT   AS    PLAIN
ERROR.

POINT VI
TRIAL COUNSEL WAS INEFFECTIVE BEAUSE HE
IMPROPERLY WAIVED THE DEFENDANT'S
RIGHT OF CONFRONTATION, PERMITTING THE
STATE TO PRODUCE RESULTS FROM THE
AUTOPY WITHOUT PRODUCING THE WITNESS
WHO PERFORMED THE AUTOPSY.

POINT VII
TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY    CONSENTING    TO    AN
ERRONEOUS INSTRUCTION AND FAILING TO
OBJECT TO THE MANNER IN WHICH THE TRIAL
COURT RESPONDED TO JURY QUESTIONS.

POINT VIII
THE CUMULATION OF ERRORS BY TRIAL
COUNSEL    AND  APPELLATE  COUNSEL
RESULTED IN A FUNDAMENTALLY UNFAIR
PROCESS.

POINT IX
THE DEFENDANT IS ENTITLED         TO   AN
EVIDENTIARY HEARING.

POINT X
THE DFENDANT IS ENTITLED TO DE NOVO
REVIEW AND NO DEFERENCE SHOULD BE
GIVEN TO THE ERRONEOUS CONCLUSION
BELOW. (Not Raised Below).




                                            A-4706-17T1
                   9
                                        II.

      Defendant argues that the PCR court erred by finding that he was

procedurally barred under Rules 3:22-4 and 3:22-5 from raising claims he was

denied the effective assistance of trial and appellate counsel.

      Before the PCR court defendant claimed that: (1) trial counsel failed to

object to the court's handling of a jury question, and appellate counsel should

have raised this issue on appeal; (2) trial counsel failed to object to the court's

response to the jury's reported deadlock; (3) trial counsel improperly excluded

him from certain proceedings; (4) trial counsel improperly denied defendant of

his right to testify on his own behalf; (5) counsel failed to object at trial to

alleged prosecutorial misconduct; and (6) counsel erred by failing to object to

the State proffering testimony about the autopsy from Dr. Roger Mitchell, rather

than Dr. John Stash, who performed the autopsy.

      Defendant contends these claims of ineffective assistance of counsel could

not have been raised on direct appeal. However, we need not address defendant's

argument because the record is sufficient to address the merits of these claims

in this appeal.




                                                                           A-4706-17T1
                                       10
                                             III.

      As noted, defendant argues that he was denied the effective assistance of

trial and appellate counsel. We disagree.

      To establish ineffective assistance of counsel, a defendant must satisfy the

two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984),

and later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Under the test, a defendant first "must show that counsel's performance was

deficient." Strickland, 466 U.S. at 687. Defendant must establish that counsel's

performance "fell below an objective standard of reasonableness" and "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. at 687-88.

      Defendant also must establish "that the deficient performance prejudiced

the defense." Id. at 687. To establish prejudice, "[t]he defendant must show

that there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable probability

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

Id. at 694.




                                                                             A-4706-17T1
                                        11
      A. Spratt's Medical Records

      Defendant argues that his trial attorney was deficient because he did not

obtain Spratt's medical records. Defendant contends the medical records would

have supported an argument that Spratt's death was the result of her extremely

poor medical condition, advanced age, and a possible accident.

      Defendant argues that the medical records were vital to his argument that

the State failed to prove causation. He argues that the PCR court erred by

finding that his attorney engaged in a reasonable strategy when he elected not to

obtain the medical records.

      We need not consider whether counsel reasonably elected, as a matter of

trial strategy, not to obtain Spratt's medical records. Assuming that counsel

erred by failing to obtain these records, defendant did not establish that he was

prejudiced by counsel's error.

      Spratt's medical records showed that she was suffering from chronic

obstructive pulmonary disease, and required an oxygen tank to assist her

breathing. At trial, Mitchell testified that the autopsy showed Spratt's neck had

been compressed with a significant, sustained force, which stopped the flow of

blood between her heart and head and caused her death. Defendant has not

shown that if Spratt's medical records had been introduced into evidence, they


                                                                         A-4706-17T1
                                      12
would have led the jury to conclude that Spratt died as the result of some other

cause.

      On appeal, defendant argues that the jury should have been permitted to

consider whether Spratt's medical conditions were an "alternative theory of

causation." However, in support of his PCR petition, defendant did not present

an affidavit or certification of a qualified medical professional, with an opinion

that Spratt died due to her medical conditions, rather than a neck compression

resulting from the application of a significant, sustained force.

      B. Exclusion of Defendant from Trial Proceedings

      Defendant argues that his trial counsel was ineffective because counsel

purportedly participated in conferences held in the judge's chambers without

defendant.   Defendant has not, however, presented any evidence that such

conferences took place or what may have occurred during these conferences.

Moreover, defendant's right to be present at trial only extends to the "'critical

stage[s]' of the trial" court proceedings. See State v. Reevey, 417 N.J. Super.

134, 149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363

(App. Div. 1991), aff'd, 131 N.J. 84 (1993)). Defendant has not shown that the

alleged conferences were critical stages of his trial proceedings. He also has not




                                                                          A-4706-17T1
                                       13
shown that his failure to be present at any in-chambers conference interfered

with his right to maintain a defense.

       C. Defendant's Decision Not to Testify at Trial

       Defendant argues that his trial attorney coerced him to decide against

testifying at trial. The record does not support defendant's argument. At trial,

the judge questioned defendant on the record concerning his decision not to

testify:

             THE COURT:        Mr. Thomas, [your attorney]
             indicated to me you're electing not to testify in this case.
             Correct?

             THE DEFENDANT:             Yes.

             THE COURT:        Have you had ample opportunity to
             confer with [your attorney] regarding that?

             THE DEFENDANT:             Yes.

             THE COURT:       And based upon your conversations
             with him and your full and complete consultation with
             him, you've come to the decision not to testify. Is that
             correct.

             THE DEFENDANT:             Yes, it is.

                   ....

             THE COURT:        Nobody's forced or coerced or
             threatened you to do this; you're doing this of you own
             free will?


                                                                            A-4706-17T1
                                         14
             THE DEFENDANT:          Yes.

             THE COURT:          You've been represented by [your
             attorney] throughout these proceedings. Are you
             satisfied with his representation in all respects?

             THE DEFENDANT:          Yes.

      As the record shows, defendant never asserted his attorney had coerced

him to decide against testifying. Defendant also told the judge that he was

satisfied with his attorney's representation "in all respects[.]" Thus, the record

provides no support to defendant's claim that his attorney coerced him to decide

not to testify.

      D. Alleged Prosecutorial Misconduct

      Defendant claims his trial attorney erred by failing to object to alleged

prosecutorial misconduct. He also contends appellate counsel was deficient

because counsel did not raise prosecutorial misconduct on appeal.

      Defendant asserts that after certain witnesses answered questions, the

prosecutor stated "okay," thereby suggesting that the prosecutor affirmed or

concurred in the testimony. Defense counsel objected and the judge cautioned

the prosecutor. Defendant contends the prosecutor continued to makes these

improper comments.




                                                                          A-4706-17T1
                                       15
      Defendant also asserts that at one point, the prosecutor picked up items

from counsel's table and threw them in the air, purportedly out of "disdain and

disgust." In addition, defendant states that the trial judge referred at some point

to the prosecutor as "incorrigible." It is not clear from the record what prompted

the judge to make that comment.

      Defendant's attorney may have erred by failing to repeat his objections to

the prosecutor's comments, and by failing to object when the prosecutor threw

certain items in the air. However, defendant has not shown the result here

probably would have been different if his attorney had raised these objections.

Defendant also has not shown that his appeal would have been decided

differently if appellate counsel had raised the alleged prosecutorial misconduct

on appeal.

      E. Failure to Object to Testimony Regarding Autopsy

      Defendant further argues that his trial attorney erred by failing to object

to Mitchell's testimony about the autopsy report on the ground that Mitchell did

not perform the autopsy. In defendant's direct appeal, we held that defendant

had waived his Confrontation Clause objection to Dr. Mitchell's testimony

because he did not raise the objection at trial. Thomas, slip op. at 30.




                                                                           A-4706-17T1
                                       16
      In our opinion, we noted that on cross-examination, defense counsel had

"attempted to obtain helpful testimony" from Mitchell that Spratt may have

choked on her oxygen tube. Ibid. We also pointed out that defense counsel

attempted to show that because Mitchell did not perform the autopsy, his

testimony might not be reliable. Ibid. Defendant's attorney made the same point

in his summation. Ibid.

      We stated that, "Defendant made a clear choice to pursue a trial strategy

of attempting to cast doubt on Mitchell's conclusions by focusing the jury's

attention on the fact he did not perform the autopsy in this case." Id. at 30-31.

We held that under the circumstances, defendant could not claim that Mitchell's

testimony deprived him of his right to confrontation, and counsel's failure to

object was not an error "clearly capable of producing an unjust result." Ibid.

(quoting State v. Williams, 219 N.J. 89, 99 (2014)).

      For essentially the same reasons, we reject defendant's claim that he was

denied the effective assistance of counsel because his attorney failed to object

to Mitchell's testimony on Confrontation Clause grounds.       Defense counsel

pursued a reasonable trial strategy of attempting to discredit Mitchell's

testimony because he did not perform the autopsy. Moreover, it is reasonable




                                                                         A-4706-17T1
                                      17
to assume that if counsel had objected to Mitchell's testimony, the State would

have presented testimony from the doctor who performed the autopsy.

      F. Failure to Object to the Court's Handling of Jury Question

      Defendant asserts his trial attorney was deficient because he consented to

an erroneous response to a question that the jury sent to the court during

deliberations.   The jury asked whether the shopping cart introduced into

evidence was "the same cart used to hold the body." After consulting with

counsel, the judge told the jury that the answer to the question was "Yes."

Another note from the jury followed, and it included additional questions

regarding the shopping cart.

      Defense counsel then asserted that the judge should not have responded

"Yes" to the previous question. The judge agreed and instructed the jury that

his previous answer was not complete. The judge stated

                  The answer is "yes" but . . . I can't answer
            questions . . . you pose to me because they're factual
            questions.

                  ....

            [Y]ou have to listen to each other . . . and reach a
            decision as to whether or not [the] evidence . . . or lack
            of evidence . . . is sufficient information for you to
            make a decision as to guilt or innocence, fairly and
            impartially.


                                                                         A-4706-17T1
                                       18
      On appeal, defendant argues that the judge's instruction was confusing and

erroneous because the answer to the jury's initial question should not have been

"Yes," and the additional instruction was contradictory.        He contends that

because the instruction would have a prejudicial impact on the jury's findings of

fact, his trial attorney should have raised a timely and specific objection.

Defendant also contends the instruction improperly shifted the burden of proof

to defendant to produce evidence of his innocence.

      Again, we disagree. It appears the judge may have erred by responding

to the jury's first question by stating, "Yes."       It seems that the assistant

prosecutor and the judge also assumed that the shopping cart in evidence was

the same shopping cart used to move Spratt's body. In any event, defendant has

not shown that counsel's error prejudiced the defense. As noted, the judge

corrected the mistake by providing a timely instruction.

      Moreover, the amended instruction did not shift the burden of proof to

defendant. Defendant contends the instruction was in conflict with the earlier

instruction in which the judge told the jurors that the State had the burden of

proof on all elements of the charged offenses. The judge's instruction did not

relieve the State of its burden of proof, which was clearly described in the court's

final instructions.


                                                                            A-4706-17T1
                                        19
      G. Failure to Object to Judge's Response to Jury's Alleged Deadlock

      In defendant's direct appeal, he argued that the judge erred by failing to

give the jury a Czachor charge after the jury allegedly reported that it was

deadlocked. Thomas, slip op. at 32. We noted that defendant had not objected

to the charge that the trial court provided. Ibid.

      We pointed out that in Czachor, the Court approved an instruction to be

used when a jury reports it is deadlocked, which directs the jury to continue

deliberating but reminds the jurors they have an obligation to hold onto honest

convictions. Id. at 34-35 (citing Czachor, 82 N.J. at 405 n.4). We reviewed the

trial record and noted that the judge did not view the note from the jury as

reporting "a true deadlock." Id. at 35. We stated that "[t]he court and counsel

reasonably determined the jury could not be truly deadlocked after deliberating

for two non-consecutive hours after hearing days of testimony in a murder trial."

Id. at 35-36.

      We held that there was "nothing coercive about the trial court's

supplemental instructions" and the judge "did not violate the core holding of

Czachor[.]" Id. at 36. We stated the charge was not meant to address a jury

deadlock, "but was more along the lines of a reminder to the jury to cooperate




                                                                         A-4706-17T1
                                       20
and continue deliberating." Ibid. (citing State v. Adim, 410 N.J. Super. 410, 425

(App. Div. 2009)). We held that the court's instructions were proper. Ibid.

      In this appeal, defendant asserts that his trial attorney erred by failing to

object to the instructions. We disagree. The judge properly instructed the jury

to continue its deliberations, and there was no basis for an objection. Defendant

has not shown that counsel erred by failing to object or that he was prejudiced

by the manner in which counsel handled the issue.

      We therefore conclude that defendant failed to establish that he was

denied the effective assistance of trial or appellate counsel.

                                        IV.

      Defendant argues that even if the errors he cites did not individually

constitute reversible error, in the aggregate, they denied him of his constitutional

right to a fair trial or required an evidentiary hearing. Our Supreme Court has

held that "even when an individual error or series of errors does not rise to

reversible error, when considered in combination, their cumulative effect can

cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193

N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J. 448, 540 (2001)). The

cumulative error principle does not apply in this case. As we have explained,

there were no series of errors that, when considered in combination, cast


                                                                            A-4706-17T1
                                        21
sufficient doubt on the jury's verdict to require a new trial or an evidentiary

hearing.

                                        V.

      Defendant argues that the PCR court erred by failing to conduct an

evidentiary hearing on his PCR petition. Such a hearing is only required if

defendant presents a prima facie case in support of the petition, the court ha s

determined that there are material issues of fact that cannot be resolved based

on the existing record, and an evidentiary hearing is required to resolve the

claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-

10(b)). Because defendant failed to establish a prima facie case for PCR, and

the existing record was sufficient to resolve his claims, an evidentiary hearing

was not required.

                                       VI.

      Defendant filed a pro se supplemental brief in which he argues: (1) trial

and appellate counsel were ineffective "in failing to conduct an adequate pretrial

investigation[,]" by "fail[ing] to consult" with him, and by failing to object to

Mitchell's testimony; (2) the PCR court improperly "applied a procedural bar"

to his petition; (3) he was coerced into electing not to testify; (4) prosecutorial

misconduct deprived him of a fair trial; (5) trial counsel was ineffective in


                                                                           A-4706-17T1
                                       22
waiving his confrontation rights and failing to call the medical examiner who

performed the autopsy; (6) trial counsel was ineffective in failing to object to

the trial court's instructions; (7) the cumulative error principle requires reversal

of his conviction; and (8) an evidentiary hearing is required. To the extent these

arguments have not been addressed previously, they lack sufficient merit to

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

      Affirmed.




                                                                            A-4706-17T1
                                        23
