                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0884-18T2
                                                                    A-3243-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AHMAR D. BUTLER, a/k/a
MAR BUTLER, and AHMAR
SPENCE,

     Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTWIONE A. PARSLEY,
a/k/a ANTOINE A. PARSLEY,
and ANTIONE PARSLEY,

     Defendant-Appellant.
__________________________

                   Submitted February 10, 2020 – Decided February 28, 2020
            Before Judges Sabatino and Sumners.

            On appeal from the Superior Court of New Jersey, Law
            Division, Salem County, Indictment No. 12-01-0001.

            Hegge & Confusione, LLC, attorneys for appellant
            Ahmar Butler (Michael James Confusione, of counsel
            and on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            appellant Antwione Parsley (Andrew Robert
            Burroughs, Designated Counsel, on the briefs).

            John T. Lehman, Salem County Prosecutor, attorney for
            respondent (David M. Galemba, Assistant Prosecutor,
            of counsel and on the briefs).

PER CURIAM

      In these related1 appeals, co-defendants Antwione A. Parsley and Ahmar

Butler seek reversal of the trial court's denial of their respective petitions for

post-conviction relief ("PCR"). For the reasons that follow, we affirm the trial

court's decisions in part, vacate them in part, and remand for evidentiary

hearings to explore alibi evidence and other specified matters.




1
   We consolidate these appeals, which were calendared back-to-back, into a
single opinion.
                                                                            A-0884-18T2
                                        2
                                        I.

      The State's proofs adduced at defendants' joint 2013 trial were

summarized in this court's 2017 unpublished opinion affirming their convictions

and that of their co-defendant, Jonathan P. Thomas. State v. Butler, et al., Nos.

A-0381-13, A-1741-13, and A-2051-13 (App. Div. March 30, 2017).                We

incorporate by reference our prior recitation of the facts and procedural history.

The following brief synopsis will suffice for purposes of these PCR appeals.

      The victim, Joseph Hayes, was shot to death on September 7, 2008, in

Salem City. That evening, Hayes was home with his girlfriend and the doorbell

rang. Hayes went downstairs to answer the door. He walked to the back door,

at which point his girlfriend heard multiple gunshots. She went downstairs and

discovered Hayes lying in the back doorway bleeding.

      Police responded to the scene, where Hayes was pronounced dead. The

medical examiner later determined Hayes had died of multiple gunshot wounds.

The parties stipulated that Hayes had been killed by bullets shot from two

different handguns. No DNA or fingerprint evidence established the identities

of the shooters.



                                                                            A-0884-18T2
                                        3
      The State's theory at trial was that Hayes had been murdered because he

was perceived to be a "snitch" whose name had appeared in discovery in an

unrelated criminal case involving Parsley and Thomas. The State contended that

Parsley and Thomas recruited Butler to assist them in killing Hayes.

      The State presented several eyewitnesses who placed the three defendants

near the scene of the shooting. One eyewitness, Malcolm Moore, saw Butler

and Thomas with guns in their hands, and saw them leave the area with Parsley

shortly after the shooting. Other witnesses stated that defendants had bragged

about their involvement in the shooting.       One of these witnesses, Darryl

Massengill, stated that he had overheard Butler in prison admitting that he had

fired some of the fatal shots at Hayes. There was also other evidence that linked

Parsley and Thomas to the shooting.

      The jury found Butler and Thomas guilty of murder, N.J.S.A. 2C:11-

3(a)(1) and (2); aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (2); possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and conspiracy to

commit murder and aggravated assault, N.J.S.A. 2C:5-2. The same jury found

Parsley guilty of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:11-3(a)(1); and conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2

                                                                           A-0884-18T2
                                       4
and N.J.S.A. 2C:12-1(b)(1). The trial court sentenced each defendant to a fifty-

year prison term, with an eighty-five percent parole disqualifier prescribed by

the No Early Release Act, N.J.S.A. 2C:43-7.2.

      On direct appeal, we rejected numerous arguments presented by the three

co-defendants, including claims of various evidentiary errors and alleged flaws

in the jury instructions. Butler, slip op. at 17-33. We also upheld defendants'

sentences. The Supreme Court denied certification to all three defendants. 233

N.J. 17, 128, 129 (2017).

      Parsley and Butler then separately filed PCR petitions. Among other

things, their petitions alleged their respective trial counsel had been ineffective

in numerous respects. They also contended they are entitled to new trials

because of alleged newly discovered evidence.

      Both defendants tendered affidavits from alleged alibi witnesses. With

respect to Parsley, he provided affidavits from Cornelius Allen, Robert

Winchester, and Latasia Winchester, contending that Parsley was at the

Winchester house playing cards on the evening of the shooting. As to Butler,

he presented affidavits from his girlfriend, Lanika Booker, and his cousin,



                                                                             A-0884-18T2
                                        5
Jermaine Spence, who contended that Butler had been watching football at

Booker's residence where she was babysitting at the time of the murder .

      In addition, defendants tendered, as alleged newly discovered evidence,

affidavits from several non-alibi witnesses. They contend these persons would

have substantially discredited the testimony of several of the State's trial

witnesses.

      After considering the defense affidavits and the arguments of counsel, the

PCR judge (who was not the judge who presided over the trial) denied both

petitions. The PCR judge did so in an oral decision on October 15, 2018 denying

Butler's petition, and in a separate written opinion dated November 28, 2018

denying Parsley's petition. The PCR judge concluded there was no need to

conduct an evidentiary hearing for either defendant. These appeals ensued.

                                      II.

      On appeal, Butler makes the following argument in his brief:

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT'S    PETITION   FOR   POST-
             CONVICTION    RELIEF    WITHOUT   AN
             EVIDENTIARY HEARING.

      In addition, Parsley makes the following arguments in his own brief:


                                                                           A-0884-18T2
                                       6
POINT I

AS MR. PARSLEY ESTABLISHED THAT HE
RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS ATTORNEY FAILED TO
INVESTIGATE AND PRESENT EXCULPATORY
WITNESS TESTIMONY, HE IS ENTITLED TO
POST-CONVICTION RELIEF, OR AT A MINIMUM,
TO AN EVIDENTIARY HEARING.

(1) Trial counsel failed to present the exculpatory
statements of Cornelius Allen, Robert Winchester, and
Latisha Winchester.

(2) Trial counsel failed to present the exculpatory
statement of Vanaman IV.

(3) Trial counsel failed to investigate and present
evidence to rebut the testimony of Bundy that Parsley
made incriminating statements while in Salem County
Jail.

(4) As trial counsel failed to adequately investigate
the crime scene map, he denied his client a viable third-
party defense.

POINT II

AS MR. PARSLEY PRESENTED NEWLY
DISCOVERED MATERIAL AND EXCULPATORY
EVIDENCE, THE PCR COURT ERRED WHEN IT
FOUND HE WAS NOT ENTITLED TO A NEW
TRIAL WITHOUT HOLDING AN EVIDENTIARY
HEARING TO EVALUATE THE NEWLY
DISCOVERED EVIDENCE.

                                                            A-0884-18T2
                           7
             (1) Charlene Daniels

             (2) Delilah Hill

             (3) Stephen Ross

             (4) Oreander Callaway, Jr.

      In evaluating these arguments, we apply well-established legal principles.

Under the Sixth Amendment of the United States Constitution, a person accused

of crimes is guaranteed the effective assistance of legal counsel in his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation

of that right, a convicted defendant must satisfy the two-part test enunciated in

Strickland by demonstrating that: (1) counsel's performance was deficient; and

(2) the deficient performance actually prejudiced the accused's defense. Id. at

687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey).

      To obtain an evidentiary hearing on a PCR application based upon

ineffective assistance claims, a defendant must make a prima facie showing of

deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-

63 (1992).    "When determining the propriety of conducting an evidentiary

hearing, the PCR court should view the facts in the light most favorable to the

                                                                            A-0884-18T2
                                          8
defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall,

148 N.J. 89, 158 (1997)); see also Preciose, 129 N.J. at 462-63. "If, with the

facts so viewed, the PCR claim has a reasonable probability of being

meritorious, then the defendant should ordinarily receive an evidentiary hearing

in order to prove his entitlement to relief."    Jones, 219 N.J. at 311 (citing

Marshall, 148 N.J. at 158).

      When reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'

will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105

N.J. at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59

(2009). "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 defendant's guilt." State v.

Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165

(1991)). "As a general rule, strategic miscalculations or trial mistakes are

insufficient to warrant reversal 'except in those rare instances where they are of

                                                                            A-0884-18T2
                                        9
such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at

314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

      "[B]ald assertions" of deficient performance are insufficient to support a

PCR application. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999); see also R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013)

(reaffirming these principles in evaluating which of a defendant's various PCR

claims warranted an evidentiary hearing).

      In addition, in order to obtain a new trial based upon a claim of newly

discovered evidence, a criminal defendant must establish several things. Such

newly discovered evidence is sufficient to warrant a new trial only if it is: "(1)

material to the issue and not merely cumulative or impeaching or contradictory;

(2) discovered since the trial and not discoverable by reasonable diligence

beforehand; and (3) of the sort that would probably change the jury's verdict if

a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). All three

prongs of the Carter test must be satisfied to grant a new trial. Ibid.

      As to the first prong of the Carter test, evidence is material if it "would

'have some bearing on the claims being advanced.'" Ways, 180 N.J. at 188

(quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). To that

                                                                            A-0884-18T2
                                       10
end, "[c]learly, evidence that supports a defense, such as alibi, third -party guilt,

or a general denial of guilt would be material." Ibid.

      The first and third prongs of the Carter test are "inextricably intertwined."

Nash, 212 N.J. at 549. The "analysis of newly discovered evidence essentially

merges the first and third prongs of the Carter test." State v. Behn, 375 N.J.

Super. 409, 432 (App. Div. 2005).                Under these standards, "[t]he

characterization of evidence as 'merely cumulative, or impeaching, or

contradictory' is a judgment that such evidence is not of great significance and

would probably not alter the outcome of a verdict." Ways, 180 N.J. at 189. By

contrast, evidence "that would have the probable effect of raising a reasonable

doubt as to the defendant's guilt would not be considered merely cumulative,

impeaching, or contradictory." Ibid.

      The second prong of the Carter test "recognizes that judgments must be

accorded a degree of finality . . . ." Id. at 192. That prong therefore requires

that the "defense . . . 'act with reasonable dispatch in searching for evidence

before the start of the trial.'" Nash, 212 N.J. at 550 (quoting Ways, 180 N.J. at

192). Under that prong, the evidence must not have been discoverable prior to

trial through the exercise of "reasonable diligence" in the context of the specific

                                                                              A-0884-18T2
                                        11
circumstances of each case. Reasonable diligence does not require "totally

exhaustive or superhuman effort." Behn, 375 N.J. Super. at 428.

      Of course, a defendant "is not entitled to benefit from a strategic decision

to withhold evidence." Ways, 180 N.J. at 192. A defendant gains no strategic

advantage, however, if her or his attorney "fails to discover or overlooks

exculpatory evidence." Ibid.

                                     A.

      Bearing in mind these standards, we turn first to defendants' argument

concerning the proffered alibi witnesses. The PCR judge rejected their claims

of alibi, essentially because he was persuaded that the alibi witnesses were

biased, that their proffered testimony was weak, and that their accounts, even if

believed, would not conclusively rule out defendants' involvement in the fatal

shooting.

      Although we understand the logic of the PCR judge's reasoning, we

conclude an evidentiary hearing is warranted under the circumstances to develop

the record more fully concerning the alibi evidence and adjudicate the issues on

a plenary record, consistent with case law.



                                                                            A-0884-18T2
                                      12
      We are mindful that a criminal defense attorney's decision to call or not

call witnesses is a matter of trial strategy generally entitled to presumptive

deference. See, e.g., State v. Arthur, 184 N.J. 307, 320 (2005) ("Determining

which witnesses to call to the stand is one of the most difficult strategic decisions

that any trial attorney must confront."). These principles of deference extend

to counsel's decisions on alibi evidence. "Counsel's fear that a weak alibi could

cause more harm than good is the type of strategic decision that should not be

second guessed on appeal." State v. Drisco, 355 N.J. Super. 283, 291 (App. Div.

2002); see also State v. Coruzzi, 189 N.J. Super. 273, 321–22 (App. Div. 1983)

(finding no error to not call the defendant's brother as alibi witness, when the

testimony was contradicted by other, credible witnesses and could "undermine

the entire defense strategy").

      Nevertheless, the Supreme Court has also recognized that an attorney's

failure to investigate an alibi defense can be "a serious deficiency that can result

in the reversal of a conviction." State v. Porter, 216 N.J. 343, 353 (2013); see

also State v. Ways, 180 N.J. 171, 188 (2004) (noting that "evidence that supports

a defense, such as alibi, third-party guilt, or a general denial of guilt would be

material.") "Even a suspicious or questionable affidavit supporting a PCR

                                                                               A-0884-18T2
                                        13
petition 'must be tested for credibility and cannot be summarily rejected."

Porter, 216 N.J. at 355 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App.

Div. 2008)).

      In Porter, the Supreme Court remanded a case for an evidentiary hearing

where a defendant and his girlfriend each submitted affidavits to establish the

defendant's alibi that he was not at the scene of a homicide. The primary defense

in that case was that the State's principal witness misidentified the defendant.

Porter, 216 N.J. at 347. The trial court rejected the defendant's PCR petition

without conducting an evidentiary hearing. The Supreme Court overturned that

determination.

      Among other things, the Court in Porter criticized the PCR court for

making credibility findings based upon the written affidavits, without having the

girlfriend testify at an evidentiary hearing. Id. at 356. As the Court explained,

"[t]he proper way to determine [the girlfriend's] reaction was to assess her [alibi]

testimony on direct and cross-examination." Ibid. The PCR court in Porter erred

by speculating the jury would have found the girlfriend too biased to be believed.

"There is no substitute for placing a witness on the stand and having the

testimony scrutinized by an impartial factfinder." Ibid.

                                                                              A-0884-18T2
                                        14
      Here, if, hypothetically, the alibi witnesses proffered by Parsley were

found trustworthy, they would undermine testimony from the State's witnesses

that he was seen on the street immediately before and following the fatal

shooting. To be sure, that would not eliminate the possibility that Parsley, while

not present at the shooting, took part in a conspiracy to kill or injure Hayes.

Nevertheless, an evidentiary hearing to develop the factual record as to his alibi

evidence is warranted, consistent with Porter.

      We reach a similar conclusion as to Butler's alibi witnesses, both of whom

placed him at the critical time away from the Hayes residence watching a

football game on television. We recognize that Spence and Booker attest they

were watching the football game with Butler, but neither of their affidavits

mentions the other person. That arguable inconsistency, however, does not

eliminate the appropriateness of a full evidentiary hearing to develop and

evaluate the testimony, as well as counsel's strategic decisions.

      We consequently vacate this aspect of the PCR judge's rulings and remand

for an evidentiary hearing on the alibi proofs. In addition to testimony from the

alibi witnesses, the trial court shall also consider hearing testimony from the

respective defendant attorneys, explaining whether they investigated these

                                                                            A-0884-18T2
                                       15
potential alibis and, if so, why they chose not to present these witnesses for

strategic or other reasons.

                                       B.

      Apart from these alibi witnesses, defendants contend they are entitled to

relief because of other evidence, some of it alleged to be newly discovered,

which could have substantially undermined the State's case at trial. We agree

with the PCR judge that certain portions of this evidence are inconsequential

and do not require any evidentiary hearing. However, we conclude that other

portions of the additional proof should be explored at an evidentiary hearing on

remand.

      Specifically, we agree with the PCR judge that the affidavits of three

witnesses – Delilah Hill, William Vanaman IV, and Stephen Ross – are

insufficient to establish a prima facie basis of exoneration to warrant an

evidentiary hearing. In particular, Ross's assertion that Leslie Bundy, a State

witness, could not have observed the shooting does not contradict Bundy's t rial

testimony that he heard gun shots and, about thirty minutes later, saw defendants

together in the area.    We agree with the PCR judge that Ross's proposed



                                                                           A-0884-18T2
                                      16
testimony has scant impeachment value and does not rise to a level requiring a

plenary hearing.

      The proffered testimony of Hill and Vanaman is likewise of little

significance or weight. Defendants claim that Hill and Vanaman would have

undermined the testimony of another State witness, Malcolm Moore. Moore

testified that he was on Hedge Street at the time of the murder and saw

defendants drive off together immediately afterward. Hill and Vanaman assert

that they were on Hedge Street at the time of the murder and did not see Moore.

Their proposed testimony does not directly contradict or refute Moore's

observations, other than his presence at the location. Moore's testimony was

already subject to extensive attack by defense counsel at trial, and presumably

he was found by the jury to be credible. We are persuaded that additional

testimony from Hill and Vanaman would have had no more than marginal or

cumulative impact. No evidentiary hearing as to their accounts was required.

      We reach a different procedural determination as to the affidavits of

Shameek Brown, Oreander Callaway and Charlene Davis. Shameek Brown

originally testified at trial that he had heard Butler make incriminating

statements to Thomas. In a subsequent affidavit, he recanted his testimony and

                                                                         A-0884-18T2
                                     17
stated he never heard any incriminating conversations between defendants. If

Brown's subsequent recantation of his own testimony was found to be credible,

it would comprise the sort of evidence that could raise reasonable doubt in a trial

that relied heavily on the credibility of the State's witnesses.

      Moreover, the affidavits of Callaway and Daniels suggest that a third

party, not the defendants, committed the murder, either through that third party's

admission or seeing him armed and fleeing the scene. Without any eyewitnesses

to the shooting itself, this proof is at least facially significant.

      An evidentiary hearing is warranted to explore these statements more

deeply. Again, the PCR court may consider hearing testimony from defendants'

former counsel about whether they had been aware of such evidence and

strategically decided not to present it.

                                           III.

      The remaining arguments presented by defendants lack sufficient merit to

warrant discussion here. R. 2:11-3(e)(2). We add only some brief comments.

      The State's crime scene map had an adequate evidential foundation and

was reasonably used by Parsley's trial attorney in an effort to discredit the State's

investigation. The use of the map on cross-examination was clearly within the

                                                                               A-0884-18T2
                                           18
range of a strategic choice by counsel recognized under case law. See Arthur,

184 N.J. at 320-21.

      The failure of Parsley's trial counsel to obtain jail records regarding an

inmate named Glen Hayward was inconsequential. As the PCR judge rightly

noted, Parsley has not shown that he made his counsel aware of the potential

relevance of Hayward's jail status. Moreover, the testimony elicited by the

prosecutor from Bundy that Parsley admitted his involvement in the shooting to

a group of "five or six people" playing chess did not refer to Hayward by name.

Hence, even if jail records proved that Hayward would not have been present

during Butler's alleged admission, he was not identified by Bundy to the jury as

having been present at that time. The relevance of Hayward's jail records is, at

best, exceedingly remote.

      Lastly, we discern no basis for a new trial arising from the jury having

seen Butler on a video wearing prison garb. We are mindful that our case law

generally disapproves of allowing defendants to appear before juries in prison

garb, unless security reasons justify it. See State v. Artwell, 177 N.J. 526, 539

(2003). However, in the context of the present case, the jurors necessarily were

informed that Butler had been incarcerated when he made his self-incriminating

                                                                           A-0884-18T2
                                      19
statements. The video was relevant to the State's case because it strengthened

the testimony that Butler and Thomas, while incarcerated, had been

communicating about Hayes' death. We perceive no undue prejudice stemming

from the incidental appearance of Butler in prison garb.

      On all other points we have not mentioned, we adopt the sound reasoning

of the PCR judge in his respective oral and written decisions.

      Affirmed in part, vacated in part, and remanded in part. We do not retain

jurisdiction. We direct the trial court conduct a case management conference

within thirty days to plan the necessary evidentiary hearings.




                                                                         A-0884-18T2
                                      20
