                                NOT FOR PUBLICATION WITHOUT THE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-0710-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAVAR T. RODGERS, a/k/a
LAVAR T. ROGERS,

     Defendant-Appellant.
____________________________

                    Submitted November 7, 2018 – Decided December 17, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 12-01-0005.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sarah E. Elsasser, Deputy Attorney
                    General, 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 March

9, 2017, which denied defendant's petition for post-conviction relief (PCR). We

affirm.

                                       I.

      In January 2012, a Salem County grand jury returned an indictment

charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2)

(counts one, two, three and four); third-degree criminal restraint, N.J.S.A.

2C:13-2(a) (counts five, six, seven and eight); first-degree attempted murder,

N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3 (counts nine, ten, eleven and twelve);

second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1)

(counts thirteen, fourteen, fifteen and sixteen); third-degree aggravated assault

against a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count seventeen);

fourth-degree aggravated assault against a law enforcement officer, N.J.S.A.

2C:12-1(b)(5)(a) (counts eighteen, nineteen and twenty); fourth-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts twenty-one and twenty-two);

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

twenty-three and twenty-four); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a) (counts twenty-five and twenty-six);


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                                       2
fourth-degree injury to animals used for law-enforcement purposes, N.J.S.A.

2C:29-3.1 (count twenty-seven); and second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b) (counts twenty-eight and twenty-nine). In July

2012, defendant was tried before a jury.

        At the trial, the State presented evidence that defendant's girlfriend R.T.

was in a residence in the City of Salem, with her children and a friend. 1

Defendant was in the kitchen with his friends. R.T. said it appeared defendant

had been smoking marijuana. Defendant told his friends and R.T.'s friend to

leave. He then grabbed R.T. by the wrist. He stated that he had been "set up"

and if they returned, he would shoot them. R.T. broke free and defendant

threatened to shoot her and one of the children. He held a gun to R.T.'s neck

and pointed the gun at the child.

        At some point, defendant's friends returned and defendant threatened to

shoot them if they entered. R.T. laid down on the floor. Defendant sat next to

her with the gun. R.T. used her cell phone and posted a message on Facebook

stating that defendant had a gun and he was holding her and the children. She

asked someone to call the police and included her address. Someone saw the

message and called 9-1-1.


1
    We use initials to identify R.T. in order to protect her privacy.
                                                                           A-0710-17T4
                                          3
      Officers of the Salem City police department and other law enforcement

officers responded to the location. They arrived at R.T.'s residence, which is

located in one of two adjoining townhouses. The occupant of the neighboring

townhouse was leaving when the police arrived.          The police established a

perimeter around the building, which included both townhouses.

      Robert Eller, William Robinson, Walter Christy, and other law

enforcement officers decided to enter the residence through the front door. They

were accompanied by a police dog. Eller banged on the front door, announced

it was the police, and said someone should come to the door or the police would

come in. They heard a woman scream and a man call out, "Don't come in here."

      Christy held the storm door back while Eller kicked in the other door.

Robinson entered with a police dog. When he entered the residence, Robinson

observed a young child a short distance away.          He heard three gunshots.

Robinson testified that he saw defendant lying on top of a woman. Robinson

fired two shots and retreated with the dog. He yelled for defendant to drop the

gun and come out.

      Senior Investigator Steven Dick of the Salem County Prosecutor's Office

testified that shots started coming out of the house as soon as Eller kicked in the

door. Dick stated that shots were fired at him and other officers. Dick looked


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                                        4
into the house and observed a firearm pointed in his direction. He stepped back.

Shots were exchanged. One shot hit the storm door and shattered it. Robinson

was hit by the debris from the doorframe. Dick was grazed by a bullet.

      Dick retreated to a police vehicle about twenty to thirty feet from the

entrance to the home. The police dog also was shot and required medical

treatment for a bullet puncture to the lung. Dick observed a black male come to

the front door. At trial, Dick testified that defendant was the person he saw at

the front door.

      Several hours later, members of the New Jersey State Police arrived and

took control of the scene. The State Police maintained the original perimeter

around the home. They attempted to negotiate with defendant for several hours,

using a hostage negotiator and a loudspeaker. Later, R.T. and the children left

the residence, and the State Police continued their efforts to get defendant to

surrender.

      The police fired tear gas canisters into the basement, ground floor, and

second floor of R.T.'s residence, but defendant remained inside.               At

approximately 2:30 a.m., the police entered R.T.'s residence a second time.

They searched the ground floor, the second floor, and the basement. In the

basement, the police discovered a passageway into the adjacent townhouse.


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                                       5
They entered the adjacent townhouse, made their way upstairs to the ground

floor, and searched the kitchen.

      They found defendant hiding in a cabinet underneath the sink. The police

arrested defendant and turned him over to detectives. The police found a .38

caliber revolver in the debris in the kitchen of the adjacent townhouse. In a

bedroom in R.T.'s residence, they found a .45 caliber automatic handgun. The

police recovered five shells that matched the .38 caliber gun.

      The trial judge dismissed counts twenty-three (second-degree unlawful

possession of a weapon), twenty-five (second-degree possession of a weapon

for an unlawful purpose), and twenty-eight (second-degree persons not to have

weapons). The jury found defendant guilty on all the remaining charges.

      The judge sentenced defendant on October 3, 2012. The judge merged

certain offenses and sentenced defendants on counts nine, ten, eleven, and

twelve to concurrent terms of fifty-five years of incarceration, each with an

eighty-five percent period of parole ineligibility, pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a

consecutive seven-year term on count twenty-nine, with a five-year period of

parole ineligibility.




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                                       6
         Defendant appealed from the judgment of conviction dated October 3,

2012. We affirmed defendant's conviction and sentences. State v. Rodgers, No.

A-1696-12 (App. Div. Nov. 5, 2014). The Supreme Court denied defendant's

petition for certification. State v. Rodgers, 221 N.J. 287 (2015).

         On July 16, 2015, defendant filed a pro se petition for PCR, alleging

ineffective assistance of counsel, prosecutorial misconduct, and a conflict of

interest. The court assigned PCR counsel, and counsel filed a supplemental

brief.

         The PCR court heard oral argument on January 23, 2017. The court filed

a written opinion dated March 9, 2017, concluding that defendant had not

established a prima facie case of ineffective assistance of counsel, and an

evidentiary hearing was not required. The court entered an order denying PCR

and this appeal followed.

         On appeal, defendant's PCR counsel argues that the PCR court erred by

failing to conduct an evidentiary hearing on the petition. PCR counsel contends

he established a prima facie case of ineffective assistance of counsel because his

trial attorney failed to: (1) adequately cross-examine R.T., Dick, and Robinson;

(2) request a mistrial when a deliberating juror admitted seeing a newspaper

article about the case; (3) call certain witnesses at trial; and (4) object to the


                                                                          A-0710-17T4
                                        7
assistant prosecutor's allegedly improper comments and questions. Defendant

also has filed a supplemental pro se reply brief which essentially makes the same

arguments as those presented in the counseled brief.

                                        II.

      The court should conduct an evidentiary hearing on a PCR petition when

the defendant establishes a prima facie case for PCR, there are material issues

in dispute that cannot be resolved based on the existing record, and the court

determines that a hearing is necessary to resolve the claims presented. State v.

Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "To establish a prima

facie case, defendant must demonstrate a reasonable likelihood that his or her

claim, viewing the facts alleged in the light most favorable to the defendant, will

ultimately succeed on the merits." R. 3:22-10(b).

      To prevail on a claim of ineffective assistance, a defendant must satisfy

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

(1984), which was later adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987). The defendant must show that his attorney's performance was

deficient. Strickland, 466 U.S. at 687. The defendant also must show that his

attorney's "deficient performance prejudiced the defense." Ibid.




                                                                           A-0710-17T4
                                        8
      In considering whether a defendant satisfies the first prong of the

Strickland test, we recognize a strong presumption that trial counsel exercised

reasonable professional judgment in the handling of the case. Id. at 690. To

overcome that strong presumption, a defendant must show that counsel's actions

or omissions were not within the "wide range of professionally competent

assistance." Id. at 690. Furthermore, to establish prejudice under the second

prong of the Strickland test, the defendant must show 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. Defense Counsel's Cross-Examination of R.T., Dick, and Robinson

      Defendant argues that his trial attorney's cross-examination of R.T. was

deficient. He asserts that R.T. was a reluctant witness, and claims R.T. was

threatened she would be subject to a Division of Child Protection and

Permanency (DCPP) action and the removal of her children if she did not testify

against defendant. Defendant also claims that before the trial, R.T. submitted

an affidavit to the court stating that the allegations against defendant were false.

      In its decision, the PCR court noted that R.T. had provided the police with

a recorded statement and testified at trial about the events leading up to

defendant's arrest. Defense counsel cross-examined R.T. extensively about


                                                                            A-0710-17T4
                                         9
various aspects of her testimony, including the message she posted on Facebook

asking for assistance. Defense counsel asked R.T. whether she had actually seen

defendant with a gun, and whether defendant fired the gun. Counsel also asked

R.T. about her exit from the residence.

      Assuming defense counsel had seen R.T.'s affidavit before she testified,

counsel did not err by electing not to question R.T. about it. As the PCR court

noted in its decision, if counsel had questioned R.T. about the affidavit, this

would merely have informed the jury that R.T. thought the allegations against

defendant were false, despite substantial evidence to the contrary.

      We note that in the affidavit, R.T. did not mention she had been threatened

with action by the DCPP, and there is no evidence indicating defense counsel

was aware of any such threats. The PCR court found that counsel's cross-

examination of R.T. was not deficient and, even if it were, defendant failed to

show how he was prejudiced thereby. The record supports the court's findings.

      Defendant further argues that defense counsel's cross-examination of Dick

and Robinson was deficient. He asserts Dick received a superficial injury during

the incident, and neither Dick nor Robinson were struck by a bullet. Defendant

contends counsel should have questioned these witnesses about their "supposed"




                                                                         A-0710-17T4
                                      10
injuries and elicited testimony that the injuries could have been caused by

something other than a bullet.

      The PCR court found, however, that defendant failed to refute the strong

presumption that defense counsel had rendered effective assistance in the cross-

examination of Dick. The PCR court noted that Dick had testified he believed

he had been shot during the exchange of gunfire, but did not know the extent of

his injury. On direct examination, Dick testified that a bullet did not penetrate

his shoulder, but a bullet grazed his jacket and he was injured as a result.

      Defendant contends his trial attorney should have asked Dick whether he

could have been injured when he backed out through the broken storm door.

The PCR court found that defense counsel reasonably chose not to question Dick

concerning the possible alternate explanation for his injury. The court also

found that defendant failed to show that he was prejudiced by counsel's failure

to cross-examine Dick concerning his injuries. The record supports the court's

findings.

      Moreover, at trial, Robinson also acknowledged that a bullet did not

penetrate his shoulder, but he was hit by other debris during the incident. The

State presented evidence indicating that Robinson was injured by debris during

the exchange of gunfire between defendant and law enforcement.            We are


                                                                           A-0710-17T4
                                       11
convinced defense counsel was not deficient in failing to question Robinson as

to the source or extent of his injury, and defendant was not prejudiced by

counsel's failure to question Robinson further about his injury.

      B. Defense Counsel's Failure to Seek a Mistrial

      Defendant argues his trial attorney was deficient because he failed to seek

a mistrial after an article appeared on the front page of the Salem Sunbeam

newspaper regarding the trial. The record shows that the trial judge brought the

article to the attention of the attorneys, and they asked the judge to question the

members of the jury to determine if anyone had read any newspaper article about

the case. The judge indicated if any juror indicated he or she had done so, he

would question the juror at sidebar and decide how to proceed.

      The judge questioned the members of the jury. Juror No. 3 indicated she

had seen the article and mentioned it to the other jurors. The judge questioned

the juror outside the presence of the other members of the jury. Juror No. 3

indicated that she saw the headline and defendant's picture, but put the

newspaper "away immediately."

      The juror told the judge that this would not have any impact on her ability

to be fair and impartial. The judge then questioned the other members of the

jury. He asked if Juror No. 3's statement that she had seen an article about the


                                                                           A-0710-17T4
                                       12
case in a newspaper would affect their ability to be fair and impartial. No juror

responded affirmatively.

      The PCR court found that defense counsel was not ineffective for failing

to seek a mistrial. The court stated there was nothing in the record to indicate

that Juror No. 3 had obtained prejudicial information about the case from the

article, and no evidence showing that the juror's exposure to the headline had

the capacity to influence the jury's deliberations.

      The court noted that defendant's attorney had conceded the headline was

not inflammatory. The court also determined that counsel's failure to seek a

mistrial did not have any effect on the outcome of the trial, and defendant had

not shown that the result of the proceeding would have been different, if counsel

had moved for a mistrial. The record supports these findings.

      C. Defense Counsel's Failure to Call Witnesses

      Defendant argues his trial counsel was deficient because counsel did not

call Vengenock as a hostile witness. According to defendant, Dick testified that

Vengenock identified defendant by name at the scene.          Defendant claims

Vengenock denied that he had identified defendant, and Dick would not have

been able to identify him in the absence of Vengenock's identification.




                                                                          A-0710-17T4
                                       13
       The record shows that at trial, Dick testified that he observed a black male

approach the front door to the residence, and he identified defendant as that

person.      On cross-examination, defense counsel questioned Dick about his

identification. Dick said that when he first looked into the residence, he saw a

black female on the floor with a child, but he was not able to see the person

holding the weapon. Dick stated however, that he did see the individual's face

for a split second, when he came to the door. Dick's view of the individual's

face occurred simultaneously with statements by Vengenock and another

officer's statements identifying defendant.

       The PCR court found that defense counsel was not deficient in failing to

call Vengenock as a witness. We note that in his cross-examination by Dick,

defense counsel established that Dick did not see the individual who was holding

the weapon. He also established that Dick heard Vengenock identify defendant

at the same time he observed defendant appear in the doorway. The record

supports the PCR court's finding that counsel did not err by failing to call

Vengenock. His testimony would not have undermined the credibility of Dick's

identification. The record also supports the PCR court's determination that

counsel's failure to call Vengenock did not have any effect on the outcome of

the trial.


                                                                           A-0710-17T4
                                       14
      Defendant also contends his attorney should have called State Troopers

Rocap and Erdman. John Parkinson was one of the Troopers who entered the

home. Parkinson testified that R.T.'s residence and the adjacent townhouse were

surrounded by law enforcement officers. He stated that no one came out except

a female and the children. He said that he did not see them leave the building,

but he was told the female had exited the house, and he saw her walking down

the street, coming to the command post.

      On cross-examination of Parkinson, defense counsel established that

Rocap had written a report about the female exiting the building. He also

elicited testimony that Erdman was near the building and relayed information

that a female had exited the adjacent townhouse from the rear. Parkinson agreed

that Rocap's report and the information relayed to him may have contained

mistakes.

      The PCR court found that defense counsel was not deficient in failing to

call Rocap and Erdman as witnesses.          The discrepancies between their

statements and Parkinson's testimony were of no significance whatsoever to the

defense. The court further found that defendant failed to show that the result of

the proceeding would have been different if these witnesses had been called.

The record supports the court's findings.


                                                                         A-0710-17T4
                                      15
      D. Defense Counsel's Failure to Object to the Prosecutor's Questions and
      Comments

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

to certain questions and comments by the assistant prosecutor. The assistant

prosecutor asked the State's witnesses whether they were married. The assistant

prosecutor also asked the State's witnesses whether they had children or

grandchildren, and if so, their ages. Defendant contends the questions sought

information that was irrelevant. He asserts that the purpose of the question was

to generate an emotional response and sympathy for the officers involved in the

incident.

      The PCR court noted in its decision that in his direct appeal, defendant

had argued the assistant prosecutor had improperly appealed to the sympathies

of the jurors by making certain comments during the trial. We held that the

comments were not improper and did not deprive defendant of his right to a fair

trial. Rodgers, slip op. at 15-16. Similarly, the comments at issue here were not

improper and do not deprive defendant of his right to a fair trial.

      Thus, defendant's counsel was not deficient in failing to object to the

assistant prosecutor's questions and comments cited here. Moreover, defendant

failed to show that the result of the proceeding would have been different if

counsel had objected to the questions and comments.

                                                                         A-0710-17T4
                                       16
      In sum, the PCR court correctly determined that defendant failed to

present a prima facie case of ineffective assistance of counsel. Therefore, the

court correctly found that defendant was not entitled to an evidentiary hearing

on his petition.

      Affirmed.




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                                     17
