                                NOT FOR PUBLICATION WITHOUT THE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-5451-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES K. FORD, a/k/a
JAMES SMITH, JHOOD J,
and JHOOD JHOOD,

     Defendant-Appellant.
___________________________

                    Submitted December 10, 2019 – Decided January 10, 2020

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment Nos. 11-05-
                    0258 and 12-10-0740.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Mark Zavotsky, Designated Counsel, on the
                    brief).

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Paul Henry Heinzel, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant James K. Ford appeals from an order entered by the Law

Division on June 20, 2018, which denied his petition for post-conviction relief

(PCR). We affirm.

                                       I.

      In May 2011, a Somerset County grand jury returned Indictment No. 11-

05-0258 charging defendant and his brother Elijah Ford with the first-degree

murder of Damian Williams, N.J.S.A. 2C:11-3(a) (count one); first-degree

conspiracy to murder Williams, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a) (count

two); second-degree aggravated assault upon K.H., N.J.S.A. 2C:12-1(b)(1)

(count three); and second-degree possession of a handgun for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count four). 1 In addition, in October 2012, a

Somerset County grand jury returned Indictment No. 12-10-0740, which

charged defendant with aggravated assault upon J.F., N.J.S.A. 2C:12-1(b)(7).

      In February 2012, defendant filed a motion to remove K.E. as his trial

attorney and sought permission to represent himself. The trial court granted




1
 We use initials to identify K.H. and certain other individuals involved in this
matter.
                                                                        A-5451-17T3
                                       2
defendant's motion and thereafter, K.E. served as standby counsel. In January

2013, M.I. replaced K.E. as standby counsel.

      On April 2, 2013, defendant informed the trial judge that he no longer

wanted to represent himself, and he asked the judge to permit M.I. to represent

him at the trial. M.I. expressed reservations about his ability to try the matter;

however, the judge stated that the trial would proceed as scheduled.          The

following day, jury selection commenced for the trial on the charges in

Indictment No. 11-05-0258.

      During the trial, the State presented evidence showing that on March 19,

2011, certain members of the Bloods street gang held a meeting behind the train

station in Bound Brook. Defendant and his brother Elijah attended the meeting.

Williams, B.H., J.G., K.H., and L.M. also were present. It appears that, at the

time, Williams was a high-ranking member of the Bloods gang.

      An argument broke out between defendant and Williams. Defendant and

Elijah took out handguns. Defendant shot and killed Williams. The State

maintained that defendant fired once, paused, and then fired two additional

shots. At about the same time, K.H. was shot in the stomach. After the

shootings, defendant and Elijah discarded the weapons and fled the area.




                                                                          A-5451-17T3
                                        3
      Officers from the Bound Brook Police Department (BBPD) responded to

the scene and found K.H. lying on the ground. Police officers from surrounding

communities arrived to assist the Bound Book police. An officer from

Bridgewater Township came upon two individuals who discovered Williams's

body. The officer confirmed that Williams was dead.

       A detective from the Somerset County Prosecutor's Office (SCPO)

arrived at the scene and found three spent shell casings and two unspent .380

caliber rounds. He also recovered a spent projectile in the dirt about thirty-five

to forty feet from Williams's body. Later, a detective returned to the train station

and found an additional spent projectile in the dirt where Williams's body was

found. No guns or other weapons were located.

      On March 20, 2011, Dr. Mirfrida Geller performed an autopsy on

Williams's body. She determined that Williams had been shot three times and

one bullet remained inside the body. Dr. Geller opined that the projectiles had

entered Williams's body from three different angles; one through the shoulder,

another through the chest, and one through the right hip and buttocks. Dr. Geller

found that the cause of Williams's death was multiple gunshot wounds.

      On March 22, 2011, an officer from the BBPD interviewed B.H. and

thereafter responded with detectives from the SCPO to the rear of a building in


                                                                            A-5451-17T3
                                         4
Bound Brook. They found three weapons: a Bersa .380 caliber semi-automatic

handgun, a Hi-Point 9-millimeter semi-automatic handgun, and a Davis

Industries' .380 caliber semi-automatic handgun.

       Thereafter, one of the detectives determined that an unfired round found

on the ground at the train station came from the Bersa handgun, and another

unfired round came from the Davis Industries' weapon. The detective also

determined that the projectiles recovered from the ground and Williams's body

were fired from a 9-millimeter handgun, and the spent 9-millimeter shell casings

were fired from the Hi-Point weapon.

       On March 23, 2011, one of the detectives presented two photo arrays to

B.H. After reviewing the first array, B.H. identified Elijah's photo. He said

Elijah had been in possession of two pistols at the time of the shooting, and

Elijah shot K.H. After B.H. reviewed the second array, he identified defendant's

photo and said defendant shot Williams.

       On April 11, 2011, officers from the BBPD and detectives from the SCPO

arrested defendant. He was informed of and waived his Miranda2 rights.

Defendant then admitted he shot and killed Williams. He claimed, however,

that he shot Williams in self-defense.


2
    Miranda v. Arizona, 384 U.S. 436 (1966)
                                                                        A-5451-17T3
                                         5
      The jury found defendant guilty on counts one (murder) and four

(unlawful possession of a weapon), but not guilty on counts two (conspiracy to

commit murder) and three (aggravated assault). Defendant later pled guilty to

the aggravated assault upon J.F., as charged in Indictment No. 12-10-0740.

      In July 2013, defendant was sentenced. On count one of Indictment No.

11-05-0258, the judge sentenced defendant to a thirty-year prison term, during

which defendant would not be eligible for parole.        On count four, the

judge sentenced defendant to ten years in prison. The judge ordered that

defendant would serve this sentence concurrently to the sentence imposed on

count one.

      For the aggravated assault charged in Indictment No. 12-10-0740, the

judge sentenced defendant to a five-year prison term. The judge ordered that

defendant would serve this sentence concurrently to the sentences imposed

under Indictment No. 11-05-0258. The judge also imposed various fines and

fees. Defendant appealed and argued:

             POINT I:
             THE JUDGE'S INCONSISTENT AND CONFUSING
             INSTRUCTIONS     AND    VERDICT   SHEET
             IMPROPERLY PREVENTED THE JURORS FROM
             CONSIDERING         PASSION/PROVOCATION
             MANSLAUGHTER UNLESS THEY HAD FIRST
             ACQUITTED DEFENDANT OF MURDER, IN
             VIOLATION OF HIS RIGHT TO DUE PROCESS OF

                                                                       A-5451-17T3
                                       6
          LAW AND A FAIR TRIAL. U.S. CONST. AMEND.
          XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
          (Not Raised Below).

          POINT II:
          THE STATE COMMITTED PROSECUTORIAL
          MISCONDUCT BY MISSTATING THE LAW ON,
          AND     UNFAIRLY      CHARACTERIZING       THE
          EVIDENCE RELEVANT TO, THE DUTY TO
          RETREAT.       U.S. CONST. AMEND. XIV; N.J.
          CONST. (1947) ART. I, PARS. 1, 9, 10. (Partially
          Raised Below).

          POINT III:
          THE COURT ABUSED ITS DISCRETION IN
          RULING THAT DEFENDANT COULD NOT ELICIT
          EVIDENCE THAT THE VICTIM WAS A
          CONFIDENTIAL INFORMANT AS BEARING ON
          THE REASONABLENESS OF DEFENDANT'S
          BELIEF     THAT DEADLY     FORCE   WAS
          NECESSARY BECAUSE THE VICTIM BELIEVED
          THAT HE COULD ACT VIOLENTLY WITH
          IMPUNITY BY VIRTUE OF THAT STATUS.

          POINT IV:
          A REMAND IS NECESSARY BECAUSE THE
          COURT     ERRONEOUSLY     APPLIED    PRE-
          HENDERSON      LAW      IN     ASSESSING
          ADMISSIBILITY OF THE IDENTIFICATIONS.

     In addition, defendant filed a pro se supplemental brief, in which he

argued:

          THE STATE FAILED TO DISCLOSE EVIDENCE[]
          THAT WAS VITAL TO THE DEFENSE[] AND
          WITHHELD THIS DISCOVERY NOT ONLY FROM
          THE DEFENDANT, BUT ALSO THE TRIAL JURY,
                                                                   A-5451-17T3
                                    7
             [] WHICH PRODUE[D] AN UNJUST CONVICTION.
             [BRADY v. MARYLAND], 373 U.S. 83, 88 S. Ct.
             1194, 10 L. Ed. 2d 215 (1963).

      We affirmed defendant's convictions. State v. Ford, No. A-6175-12 (App.

Div. Oct. 1, 2015). The Supreme Court later denied defendant's petition for

certification. State v. Ford, 224 N.J. 244 (2016).

      On March 9, 2016, defendant filed a pro se petition for PCR in which he

claimed he had been denied the effective assistance of both trial and appellate

counsel. The court appointed counsel for defendant, and PCR counsel filed a

brief in support of defendant's petition.

      On June 20, 2018, the PCR court denied relief, concluding that defendant

failed to establish a prima facie case of ineffective assistance of trial or appellate

counsel. Defendant appeals and argues:

             POINT I
             DEFENDANT    WAS    DENIED   EFFECTIVE
             ASSISTANCE OF TRIAL COUNSEL ENTITLING
             HIM TO POST CONVICTION RELIEF OR AN
             EVIDENTIARY HEARING ON THE ISSUES OF
             FAILURE OF COUNSEL TO REQUEST AN
             ADJOURNMENT TO ADEQUATELY PREPARE,
             FAILURE TO RETAIN AN EXPERT TO REFUTE
             THE STATE'S THEORY OF THE CASE, AND
             FAILURE   TO    INTERVIEW   WITNESSES
             AVAILABLE TO SUPPORT DEFENDANT'S SELF-
             DEFENSE CLAIM.

             POINT II

                                                                              A-5451-17T3
                                            8
             DEFENDANT    WAS     DENIED   EFFECTIVE
             ASSISTANCE   OF    APPELLATE   COUNSEL
             ENTITLING HIM TO POST CONVICTION RELIEF
             OR AN EVIDENTIARY HEARING ON THE ISSUES
             OF FAILURE OF COUNSEL TO ARGUE
             ADMISSION OF PRIOR WITNESS STATEMENTS
             IN EVIDENCE AS PREJUDICIAL, AND FAILURE
             TO CHALLENGE THE DECISION OF THE TRIAL
             COURT TO ALLOW DEFENDANT TO PROCEED
             PRO SE.

                                         II.

      We note initially that to prevail on a claim of ineffective assistance of

counsel, a defendant must satisfy the two-part test established in Strickland v.

Washington, 466 U.S. 668, 693 (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 693.

Defendant must show 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." Ibid.

      Defendant also must establish "the deficient performance prejudiced the

defense." Ibid. To establish prejudice, the defendant must establish "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

                                                                             A-5451-17T3
                                         9
probability sufficient to undermine confidence in the outcome" of the matter.

Id. at 698.

      Furthermore, an evidentiary hearing is required on a PCR petition only if

the defendant presents a prima facie case in support of relief, the court

determines that there are material issues of fact that cannot be resolved based on

the existing record, and the court finds that an evidentiary hearing is required to

resolve the claims presented. 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).

                                       III.

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

counsel because his attorney failed to: (1) seek an adjournment of the trial so

that he could prepare adequately; (2) retain experts to refute the State's

contention that he did not act in self-defense when he shot Williams; and (3)

investigate witnesses who would have supported his claim of self-defense. We

address each argument in turn.

      A. Adjournment.


                                                                           A-5451-17T3
                                       10
         As noted, in February 2012, the trial court granted defendant's motion and

allowed him to represent himself at trial. Initially, K.E. acted as standby counsel

and thereafter M.I. assisted defendant in that capacity. On April 2, 2013, the

day before jury selection was to begin, defendant asked the court to permit M.I.

to take over his defense and try the case.

         In a colloquy with the judge, M.I. stated that he might not be prepared to

proceed with the trial as scheduled. He indicated he would need to have further

discussions with defendant to ensure that "all necessary witnesses" had been

investigated.

         The judge told M.I. he would have the opportunity to address the issue

later that day. After a lunch break, M.I. informed the judge that he had reviewed

the potential witnesses in greater detail, to ensure the witness list was correct.

         The PCR court found that it appeared counsel's initial concerns about his

ability to try the case had been addressed, and counsel did not thereafter raise

his concern when the judge determined he could serve as defendant's trial

counsel. The PCR court found it was clear from the record that counsel was

amply prepared. The court noted that counsel had been able to question all

witnesses vigorously and provide a clear theory of self-defense throughout the

trial.


                                                                            A-5451-17T3
                                         11
      The PCR court found that defendant presented no evidence showing that

if his trial counsel had made a motion to adjourn the trial, the judge would have

granted the motion, or that denial of an adjournment would have been "a

manifest wrong." The PCR court also found that defendant failed to show he

was prejudiced by counsel's failure to seek the adjournment. There is sufficient

evidence in the record to support the PCR court's findings.

      B. Witnesses.

      Defendant contends his trial attorney was ineffective because he failed to

retain experts to refute the State's claim that he did not act in self-defense when

he shot Williams. He asserts his trial attorney should have called a forensic

pathologist to refute the medical examiner's testimony that Williams was

running away from defendant when defendant shot him.

      Defendant also contends his trial attorney should have retained a ballistics

expert to establish the distance and trajectory of the bullets and Williams's

position relative to defendant. He further argues that his attorney should have

retained an expert on street gangs to establish that he had a reasonable belief he

was in fear for his life when he shot Williams.

      The PCR court rejected these claims. The court noted that defendant had

not identified these potential witnesses, nor submitted certifications from them


                                                                           A-5451-17T3
                                       12
detailing the testimony they would have provided. The PCR court commented

that defendant's claim that these unnamed witnesses would have provided

testimony capable of affecting the outcome of the trial was speculation.

      The PCR court noted that purely speculative deficiencies in legal

representation are insufficient to warrant relief. See Fritz, 105 N.J. 42 at 64-65.

The PCR court correctly found that defendant's claim regarding the unnamed

expert witnesses failed for lack of proof. A claim of ineffective assistance of

counsel cannot rest on bald assertions. See State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999).

      Defendant also argues that his trial attorney was deficient because he did

not call Williams's brother K.W., and a person named "Corey," who Williams

claimed was his cousin. Defendant asserts that K.W. would have testified that

Williams was a high-ranking member of the Bloods, and that this testimony

would have supported his claim that he had a reasonable fear for his life when

he shot Williams. He also claims the person named "Corey" would have testified

that Williams met defendant for the purpose of settling their dispute with

physical violence.

      The PCR court found that this claim failed because defendant had not

made the required preliminary showing that he was prejudiced by counsel's


                                                                           A-5451-17T3
                                       13
failure to call these two witnesses. The court noted that defendant had not

presented any evidence establishing what K.W. or "Corey" would have stated at

trial, if they had been called as witnesses.

      The PCR court pointed out that a report of an investigating officer states

that K.W. indicated Williams was a high-ranking member of the Bloods, and

that "Corey" was aware Williams had been traveling to Plainfield for a

prearranged fight to settle differences. The court observed, however, that there

was no evidence that either witness would have testified consistently with their

earlier statements. The record supports the PCR court's findings.

      We therefore conclude that the PCR court correctly determined that

defendant had not presented a prima facie case of ineffective assistance of trial

counsel based on his attorney's failure to call expert and fact witnesses to support

his claim of self-defense.     Furthermore, defendant failed to show that his

attorney was deficient, or that his attorney's action in failing to call these

witnesses prejudiced his defense.

                                       IV.

      We next consider defendant's contention that he was denied the effective

assistance of appellate counsel because counsel failed to argue on appeal that:

(1) the admission of certain prior witness statements was prejudicial; and (2) the


                                                                            A-5451-17T3
                                        14
trial judge erred by allowing defendant to represent himself for a time in the

period leading up to the scheduled trial date.

      A. Admission of Prior Statements of Witnesses.

            1. B.H.'s Statement.

      After the shooting, B.H. met with police officers. B.H. told the officers

he was present at the meeting at the train station in Bound Brook. After

reviewing photographs in an array provided by the one of the detectives, B.H.

identified defendant as the person who shot Williams.

      At the trial, however, B.H. testified he did not remember seeing the person

who shot Williams. He stated that he was not paying attention at the time and

was intoxicated because he took certain drugs before the meeting. He also stated

he did not remember making a statement to the investigating officers.

      The trial judge conducted a Rule 104 hearing, at which B.H. testified. See

N.J.R.E. 104. The judge then ruled the State could admit B.H.'s prior statement

to the police officers pursuant to the hearsay exception in Rule 803(a)(1) for

prior inconsistent statements of a witness. See N.J.R.E. 803(a)(1). The judge

determined that, regardless of whether B.H.'s failure to recall the details of the

shootings was genuine and not due to a fear of retaliation, his trial testimony




                                                                          A-5451-17T3
                                       15
was sufficiently inconsistent with his prior statement and could be admitted

pursuant to Rule 803(8)(a)(1).

      On appeal, defendant argues the trial judge's decision to permit the State

to introduce B.H.'s prior statement was legally incorrect. He also argues the

judge's decision deprived him of his constitutional right to confront B.H. about

his earlier statement. He further argues his appellate attorney was ineffective

because he did not name this issue on appeal. We disagree.

      As the PCR court pointed out in its opinion, a witness's prior statement is

admissible if the witness claims an inability to recall facts set forth in the earlier

statement. See State v. Burns, 192 N.J. 312, 337-38 (2007) (prior statement may

be admitted under Rule 803(a)(1) when witness testifies at trial that he did not

recall making a prior statement or its contents); State v. Bryant, 217 N.J. Super.

72, 78 (App. Div. 1987) (holding that trial witness's prior statement may be

admitted under Rule 803(a)(1) if the witness testified that he is unable to recall

the prior statement).

      Moreover, the PCR court correctly determined that defendant had not been

denied his right to confront B.H. about his prior statement. The court noted that

while B.H.'s claimed memory loss may have limited defendant's ability to cross-

examine the witness, this did not rise to the level of a denial of the constitutional


                                                                              A-5451-17T3
                                         16
right to confront a witness. The court found that defendant had not shown that

his ability to cross-examine B.H. had been adversely affected in any significant

manner. The record supports that finding.

            2. J.G.'s Statement.

      After the shooting, the police officers took J.G. into custody and brought

him to the SCPO. J.G. stated that earlier that evening, he attended a "[g]ang-

related meeting" near the Bound Brook train station and witnessed a shooting.

J.G. identified the shooter as a man he knew as "J."

      J.G. stated that he did not know "J." personally but he had seen him at

least three times before the shooting. He said "J." and Williams began to argue.

According to J.G., "J." said something to the effect of "fuck this whatever," and

then "[h]e just pulled it." J.G. said he saw "J." pull something from his pocket

and he "just started shooting" at Williams.

      At trial, however, J.G. testified that, on the night of the shooting, he was

with a group of people behind the Bound Brook train station. He stated,

however, that he did not recall anything about the shooting other than hearing

gunshots. J.G. testified that he did not recall who fired the weapon or who was

shot. He stated he had not been attending a gang meeting. He claimed he had

been merely "walking by" the area.


                                                                          A-5451-17T3
                                      17
      The trial judge conducted a Rule 104 hearing, during which J.G. stated

that, when he made his prior statement, he had been "traumatized" and "kind of

like forced to say it." The judge commented that he did not believe J.G.'s prior

statement or his trial testimony were credible.

      The judge stated that he was hesitant to admit J.G.'s prior statement as

substantive evidence, based on J.G.'s claim that the officers forced him to make

the statement. The judge therefore allowed the State to admit the statement

solely for the purpose of impeaching J.G.'s testimony.

      However, after the officers testified and denied they had coerced J.G. to

make his statement, the judge reconsidered his ruling. The judge then ruled that

J.G.'s prior statement was "sufficiently reliable" to be admitted as substantive

evidence as a prior inconsistent statement pursuant to Rule 803(a)(1). The judge

instructed the jury accordingly.

      On appeal, defendant argues that the trial judge erred by permitting J.G.

to testify at trial. He contends J.G.'s trial testimony "was irrelevant pursuant to

N.J.R.E. 401." He also argues that any "probative value" of their testimony was

outweighed by its prejudicial effect and should have been excluded pursuant to

Rule 403. N.J.R.E. 403. He contends his appellate attorney was ineffective

because he did not name this issue on appeal. We disagree.


                                                                           A-5451-17T3
                                       18
      Here, the trial judge did not abuse his discretion by allowing J.G. to testify

and admitting his prior statement into evidence pursuant to Rule 803(a)(1).

J.G.'s trial testimony was relevant. He was an eyewitness to the shooting who

previously stated he saw a person he knew as "J." shoot Williams. Moreover,

the probative value of J.G.'s testimony and his prior statement substantially

outweighed any risk of undue prejudice to defendant that could result from its

admission.

      B. Self-Representation.

      Defendant further argues that his appellate attorney was ineffective

because counsel did not argue on appeal that the trial judge erred by permitting

defendant to waive his right to trial counsel and represent himself in the period

leading up to the trial. He argues that the trial judge's decision caused "an

irreversible detrimental effect on his ability to prepare a defense for trial." He

contends he did not make a knowing or intelligent decision to waive his right to

counsel. Again, we disagree.

      Here, the trial judge fulfilled his duty to ensure that defendant waived his

right to counsel 'knowingly and intelligently.'" State v. King, 210 N.J. 2, 18

(2012) (quoting State v. Crisafi, 128 N.J. 499, 509 (1992)). At the hearing held




                                                                            A-5451-17T3
                                       19
on February 9, 2012, the judge conducted the inquiry and analysis required. See

id., 210 N.J. at 17-20; Crisafi, 128 N.J. at 511-12.

         Thus, there was no basis for appellate counsel to argue on appeal that the

trial judge erred by allowing defendant to represent himself for a time before the

trial.    Moreover, during this period, defendant had the benefit of standby

counsel, and he did not represent himself at trial. We are convinced appellate

counsel was not deficient in failing to argue on appeal that defendant was

prejudiced by the trial judge's ruling.

         We therefore conclude that the PCR court did not err by finding that

defendant failed to present a prima facie case of ineffective assistance of trial or

appellate counsel. The PCR court also correctly found that defendant was not

entitled to an evidentiary hearing on his petition.

         Affirmed.




                                                                            A-5451-17T3
                                          20
