NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5720-11T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIEHEEN FLETCHER,
Defendant-Appellant.
___________________________________
Submitted February 12, 2014 – Decided October 21, 2014
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
97-10-4248.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Andrew
R. Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
NUGENT, J.A.D.
Defendant Tieheen Fletcher is serving a life sentence with
thirty years of parole ineligibility, a jury having convicted
him of murder and two weapons offenses, and his convictions and
sentence
having
Fletcher,
No.
been
affirmed
A-4398-98
(App.
denied, 169 N.J. 604 (2001).
from
the
(PCR).
denial
of
on
his
direct
Div.
appeal.
Jan.
9,
State
2001),
v.
certif.
This is defendant's second appeal
petition
for
post-conviction
relief
In the first, we affirmed the denial of his PCR petition
with one exception.
Defendant had argued not only that his
trial and appellate counsel were ineffective, but also that his
PCR
counsel
discover,
was
and
ineffective
argue[]
"for
failing
to
investigate,
additional
claims
of
ineffective
assistance of counsel relevant to both trial counsel and direct
appellate counsel."
State v. Fletcher, No. A-4155-07 (App. Div.
May 21, 2010) (slip op. at 14) (alteration in original), certif.
denied, 204 N.J. 39 (2010).
Noting that defendant's claims of
ineffective assistance of PCR counsel "were not made before the
PCR judge[,]" we remanded those claims "to the PCR judge in the
first instance, [to] consider them as part of defendant's first
PCR petition."
Id. at 32-33.
In this appeal, defendant has not challenged the remand
court's decision denying his claims that his PCR counsel was
ineffective.
Rather,
he
argues
that
his
ineffectively represented him in four ways:
moving
to
suppress
a
statement
2
defendant
trial
counsel
by successfully
gave
to
police,
A-5720-11T1
abandoning a theory of self-defense, inadequately advising him
about his right to testify, and failing to "seek appropriate
relief" when hearsay testimony was introduced at trial.
In
defendant's previous appeal from the denial of his PCR petition,
we rejected his arguments that trial counsel was ineffective for
moving to suppress his statement and inadequately advising him
about his right to testify.
As to his new claims, counsel's
decision not to pursue a claim of self-defense was a matter of
trial strategy that we will not second-guess.
that
hearsay
testimony
of
evidence
two
could
police
have
officers,
And to the extent
been
inferred
there
was
no
from
the
reasonable
probability that the errors could have affected the outcome of
the trial.
this
appeal,
Thus, having exercised our discretion to consider
and
having
considered
defendant's
arguments
in
light of the record and controlling law, we affirm the denial of
defendant's PCR petition.
I.
The State's trial evidence is detailed in our two previous
opinions and need only be summarized here, particularly because
defendant claimed at trial that he did not shoot the victim,
whereas he now asserts that his trial counsel was ineffective
for not pursuing a claim of self-defense.
The State's proofs
established that early on an August morning in 1997, defendant
3
A-5720-11T1
repeatedly shot and killed Gregory Brantley on a Newark street.
Approximately two or three minutes before the shooting, a man
who was talking with another man and a woman on the corner of
Twelfth Street and Avon Avenue heard defendant and Brantley, who
were standing about fifty feet away in front of a building near
the corner of Avon Avenue and Eleventh Street, arguing about
drugs.
walked
When defendant and Brantley stopped arguing, defendant
up
Twelfth
Street,
passing
the
witnesses.
Brantley
walked to his car, greeting one of the witnesses in passing, and
then drove away.
The witnesses heard multiple gun shots and one
saw Brantley's car swerve and crash.
According to one of the three witnesses, as defendant fled
he placed a silver gun in his waistband and said that he "got
his fat ass."
Another witness said defendant was holding a gun
in his right hand as he was fleeing.
The third witness, while
in jail on unrelated charges, overheard defendant "on the phone
saying that he 'messed his life up, he didn't want his family
messed up,' and that he had made a big mistake."
The night after the shooting, Newark homicide detectives
questioned
defendant
at
the
police
station.
Before
the
detectives advised defendant of his Miranda1 rights, defendant
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4
A-5720-11T1
gave a statement and acknowledged that he knew of Brantley but
claimed he did not know Brantley personally.
Defendant said
that he was in the vicinity of the shooting and heard five or
twelve
gun
shots.
He
also
said
that
the
night
before
the
shooting Brantley had fired shots at him and others who were
standing either on the porch or immediately in front of the
porch of Brantley's apartment building.
Defendant's attorney
later moved, successfully, to suppress the statement.
Defendant testified at the suppression hearing.
He claimed
the detectives coerced him into giving the statement.
According
to defendant, the detectives began the interrogation by saying
defendant was going to "get [his] butt kicked all night" if he
didn't help them.
Two detectives made him remove his clothes
and then hit him with a photo album, their hands, and his boots.
They also told defendant that the victim's brother had come "up
from down south, . . . was looking for [defendant,]" and there
was
$25,000
promised
testimony
that
he
on
defendant's
protection
at
had
personally.
the
if
head.
defendant
suppression
heard
of
The
helped
hearing,
Brantley
but
detectives
them.
defendant
claimed
not
allegedly
During
his
acknowledged
to
know
him
He also denied making the statements attributed to
him about Brantley shooting at him and others the night before
Brantley was killed.
Defendant denied shooting Brantley.
5
A-5720-11T1
The
court
suppressed
defendant's
statement.
The
court
found that the detectives who interviewed defendant conducted a
custodial interrogation without first informing defendant of his
Miranda rights.
Defendant
did
not
assert
self-defense
at
his
trial.
Although he did not testify, consistent with what he had said
during his testimony at the suppression hearing, he tried the
case on the theory that he was not the person who shot Brantley.
The
jury
N.J.S.A.
weapon,
convicted
2C:11-3a(1),
N.J.S.A.
defendant
third-degree
2C:39-5b,
and
of
first-degree
unlawful
possession
second-degree
possession
weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
sentenced
defendant
to
life
without
murder,
parole
on
of
a
of
a
The court
the
murder
conviction, merged the possession of a weapon for an unlawful
purpose, and imposed a concurrent five-year custodial term on
the unlawful possession of a weapon conviction.
imposed
a
five-year
concurrent
prison
term
The court also
on
an
unrelated
weapons offense to which defendant had pled guilty.
Following his sentence, defendant filed a direct appeal,
which was unsuccessful, and thereafter a PCR petition, which the
PCR court denied.
That led to the first PCR appeal and our
remand on one issue:
defendant's argument that his PCR counsel
had been ineffective.
6
A-5720-11T1
On remand, defendant filed with the PCR court a brief, two
amended
PCR
petitions,
a
memorandum
of
law,
supplemental brief he had previously filed.
and
the
pro
se
In the PCR brief,
defendant raised the following points:
POINT ONE
DEFENDANT
WAS
DENIED
THE
EFFECTIVE
ASSISTANCE
OF
COUNSEL
CONSTITUTIONALLY
GUARANTEED TO HIM BY THE U.S. CONST.,
AMENDS. VI, XIV; N.J. CONST. ART. I, PAR.
10.
A.
TRIAL COUNSEL WAS INEFFECTIVE WHEN SHE
FAILED TO REQUEST A CURATIVE INSTRUCTION
AFTER INADMISSIBLE HEARSAY WAS PRESENTED TO
THE JURY.
B.
TRIAL COUNSEL WAS INEFFECTIVE WHEN,
DURING HER SUMMATION, SHE MADE EXPLICIT
REFERENCE TO THE HEARSAY TESTIMONY OF THE
NON-TESTIFYING WITNESSES.
C.
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
ADVISING THE DEFENDANT BEFORE THE MOTION TO
SUPPRESS THAT HE WOULD NOT HAVE TO TESTIFY
AT TRIAL AND THAT THE COURT WOULD LIKELY
INSTRUCT
THE
JURY
ON
LESSER
INCLUDED
OFFENSES IF THERE WAS A RATIONAL BASIS IN
THE EVIDENCE THAT WAS PRESENTED.
D.
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL ON DIRECT
REVIEW WHERE APPELLATE COUNSEL FAILED TO
INVESTIGATE,
DISCOVER,
AND
ARGUE
THE
DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE
OF COUNSEL RAISED IN POINTS A, B, AND C.
POINT TWO
PETITIONER HAS ESTABLISHED A PRIMA FACIE
CASE SUFFICIENT TO REQUIRE THE ORDERING OF
AN EVIDENTIARY HEARING.
7
A-5720-11T1
POINT THREE
PETITIONER'S
CLAIMS
ARE
NOT
BARRED
PROCEDURALLY FROM BEING RAISED IN THIS
PETITION FOR POST CONVICTION RELIEF.
POINT FOUR
DEFENDANT INCORPORATES BY REFERENCE THE
ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED
PETITION AND IN ANY PRO SE SUPPLEMENTAL
BRIEF.
Defendant
raised
additional
points
in
his
pro
se
PCR
to
run
petition:
POINT [FIVE]2
DEFENDANT
WAS
DENIED
THE
EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE
UNITED
STATES
AND
THE
NEW
JERSEY
CONSTITUTIONS.
U.S. CONST. AMEND. VI; XIV;
N.J. CONST. ART. I, PAR. 10.
a.
TRIAL COUNSEL WHO REFUSED TO DEFEND
DEFENDANT WITH THE DEFENSE OF SELF-DEFENSE
TO INSTEAD CHALLENGE THE STATE'S PROOFS, WAS
INEFFECTIVE FOR CALLING DEFENDANT TO TESTIFY
AT A SUPPRESSION HEARING WITHOUT FIRST
ADVISING
HIM
OF
THE
ADVANTAGES
AND
DISADVANTAGES
TO
TESTIFYING
AT
SUCH
A
HEARING, HIS RIGHT TO TESTIFY DURING TRIAL
IF HE SO CHOSE, AND PERTINENT TO THAT RIGHT
GIVEN DEFENDANT'S PROPOSED TESTIMONY, THE
TRIAL COURTS [sic] DUTY TO SUA SPONTE
CHARGE; ABSENT THIS ADVISE [sic] DEFENDANT
WAS NOT ONLY COMPELLED TO TESTIFY DURING THE
SUPPRESSION HEARING BUT TESTIFY FALSELY,
ONLY LATER TO LEARN OF HIS RIGHT TO TESTIFY
DURING TRIAL AND BE DISSUADED FROM DOING SO
BY COUNSEL THREATENING THE STATE WOULD USE
HIS SUPPRESSION HEARING TESTIMONY TO IMPEACH
HIS CREDIBILITY.
2
We have renumbered defendant's pro se
consecutively with those raised by his counsel.
8
points
A-5720-11T1
b.
TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST A CURATIVE INSTRUCTION
RELEVANT
TO
INADMISSIBLE
HEARSAY
WHICH
VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION
AND A FAIR TRIAL.
POINT [SIX]
APPELLATE COUNSEL ON DIRECT REVIEW WAS
INEFFECTIVE FOR FAILING TO INVESTIGATE,
DISCOVER, AND ARGUE TRIAL COUNSEL'S FAILURE
TO REQUEST A CURATIVE INSTRUCTION RELEVANT
TO
INADMISSIBLE
HEARSAY
WHICH
VIOLATED
DEFENDANT'S RIGHT TO CONFRONTATION AND A
FAIR TRIAL.
POINT [SEVEN]
PCR COUNSEL WAS INEFFECTIVE FOR
INVESTIGATE, DISCOVER, AND ARGUE
CLAIMS OF INEFFECTIVE ASSISTANCE
RELEVANT TO BOTH TRIAL COUNSEL
APPELLATE COUNSEL.
FAILING TO
ADDITIONAL
OF COUNSEL
AND DIRECT
POINT [EIGHT]
DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY
BARRED FROM BEING RAISED ON PCR.
After hearing oral argument, the court denied defendant's
PCR petition.
In its accompanying statement of reasons, the
court noted that the Appellate Division had remanded the PCR
petition "to allow the defendant to argue claims of ineffective
assistance of counsel by PCR counsel for failure to adequately
investigate
counsel
by
and
argue
claims
trial
and
appellate
IV.B in his PCR appeal.
of
ineffective
counsel[,]"
assistance
defendant's
of
Point
Rejecting all of defendant's points,
the court stated, among other things:
9
A-5720-11T1
defendant argues ineffective assistance of
counsel on the part of appellate counsel for
failing to investigate and argue defendant's
claims of ineffective assistance of counsel
raised in points A, B and C of [second PCR
counsel's] brief.
However, these claims
were never advanced by defendant in the
first PCR and the Appellate Court only
remanded
this
matter
to
develop
these
claims.
Nevertheless, point A, B and C,
have been addressed and this court finds
each argument lacks merit.
[(emphasis added).]
Defendant filed this appeal.
II.
Defendant argues the following points:
POINT I:
THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POSTCONVICTION
RELIEF
WITHOUT
AFFORDING
HIM
AN
EVIDENTIARY
HEARING
TO
FULLY
ADDRESS
HIS
CONTENTION
THAT
HE
FAILED
TO
RECEIVE
ADEQUATE
LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. DEFENDANT WAS DENIED HIS RIGHT
TO ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S
FAILURE
TO
PROPERLY
ADVISE HIM REGARDING HIS RIGHT TO
TESTIFY, BY SEEKING TO SUPPRESS
HIS STATEMENT TO THE POLICE RATHER
THAN UTILIZING IT TO HIS BENEFIT,
AND BY ABANDONING THE DEFENSE OF
SELF-DEFENSE IN FAVOR OF A GENERAL
DENIAL WHICH WAS CLEARLY AT ODDS
10
A-5720-11T1
WITH THE PROOFS PRESENTED BY THE
STATE AT TRIAL.
C.
THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO SEEK THE
APPROPRIATE RELIEF FOLLOWING THE
ELICITATION
OF
TESTIMONY
ON
SEVERAL
DIFFERENT
OCCASIONS
CONSTITUTING INADMISSIBLE HEARSAY
WHICH SERVED TO INCRIMINATE THE
DEFENDANT.
In
his
pro
se
supplemental
brief,
defendant
argues
an
additional point:
The Trial Court's Findings are so Contrary
to the Facts as they are Outlined in
Defendant's Signed Petition dated June 29,
2011, that in the Interest of Justice
Intervention and Correction are Demanded.
To
must
prove
satisfy
ineffective
the
assistance
Strickland
of
two-part
counsel,
test
by
a
defendant
demonstrating
"counsel's performance was deficient," that is, "that counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment;" and
"there
is
a
reasonable
probability
that,
but
for
counsel's
unprofessional errors, the result of the proceeding would have
been different."
Strickland v. Washington, 466 U.S. 668, 687,
694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698
(1984);
accord,
State
v.
Fritz,
105
N.J.
42,
58
(1987).
Defendant has failed to make a prima facie showing that he has
satisfied this two-pronged test.
11
A-5720-11T1
A.
Defendant's
Point
IB.
ineffective
first
Those
for
three
substantive
arguments
three
are
reasons:
arguments
that
(1)
trial
seeking
appear
counsel
to
in
was
suppress
defendant's statement to the police; (2) failing to properly
advise
defendant
regarding
his
right
to
testify;
and
(3)
abandoning the defense of self-defense in favor of a general
denial.
We disposed of the first two arguments in defendant's
previous PCR appeal.
Defendant's first argument – that counsel was ineffective
for successfully moving to suppress his statement – was the same
argument he raised in Point II A of his previous appeal.
he
argued
"suppressing
that
his
evidence
trial
that
counsel
although
was
would
There,
ineffective
have
provided
for
the
State with a motive, also would have bolstered the defense[.]"
We rejected that argument, explaining:
[Defendant] contends that his trial counsel
was ineffective because she successfully
sought to suppress his statement to the
police that the victim shot at him the night
before the homicide, whereas she ought to
have used it to show why the police targeted
defendant despite his cooperation in the
investigation.
. . . .
His . . . contention[] clearly express[es]
concern[]
about
his
trial
counsel's
strategic
and
tactical
decisions
with
12
A-5720-11T1
respect
police.
to
defendant's
[State v. Fletcher,
(slip op. at 23).]
We
further
explained
statement
supra,
that
to
the
No.
A-4155-07
strategic
decisions
made
by
defense counsel will generally not present grounds for reversal
on appeal:
The defendant cannot . . . request the trial
court to take a certain course of action,
and upon adoption by the court, take his
chance on the outcome of the trial, and if
unfavorable then condemn the very procedure
he sought and urged, claiming it to be error
and prejudicial. To justify reversal on the
grounds of an invited error, a defendant
must show that the error was so egregious as
to cut mortally into his substantive rights
[].
. . . .
The same can be said with respect to
counsel's advice to a client respecting the
advantages and disadvantages of having a
jury consider a statement he or she gave to
the police.
There is a strong presumption
that counsel rendered adequate assistance
and made all significant decisions in the
exercise
of
reasonable
professional
judgment.
We will not view counsel's
performance under the distorting effects of
hindsight.
[Id. at 24 (internal citations and quotation
marks omitted).]
Defendant's
same.
argument
on
this
appeal
is
essentially
the
He claims his trial counsel should not have moved to
suppress his statement, though he now asserts a different reason
13
A-5720-11T1
(it
supported
showed
why
self-defense)
police
targeted
than
he
him
asserted
despite
previously
his
(it
cooperation).
Counsel's decision to attempt to suppress the statement was a
strategic one.
Our rationale for rejecting this claim during
defendant's first PCR appeal applies here as well.
Defendant's second argument here – that his trial counsel
inadequately advised him about his right to testify – is an
argument that we also addressed in defendant's first PCR appeal.
There, we explained:
In defendant's PCR certification, he merely
alleged the facts to which he would have
testified.
He did not certify to the
substance of his discussions with counsel
respecting
the
decision
to
testify
or
not. He did not establish in any way that
she improperly compelled him to remain
silent at trial despite his protests that he
wanted to testify.
Thus, he did not even
attempt
to
impeach
his
above-quoted
statement at trial. An argument in a brief
is not sufficient to raise an ineffective–
assistance-of-counsel issue.
[Id. at 21-22 (citations omitted).]
Defendant continues to argue that he was compelled by his
counsel's inadequate advice not to testify at trial, but now
relates
Defendant
the
inadequate
acknowledges
suppression hearing.
advice
that
he
to
the
suppression
testified
falsely
hearing.
at
the
He asserts, however, that had he "known
his suppression hearing testimony could not be used against him
14
A-5720-11T1
during trial absent an attempt to testify contrary, he would
never have testified falsely during that hearing."
He explains
that,
suppression
at
trial,
when
his
counsel
told
him
his
hearing testimony could be used to impeach his trial testimony,
he "pursued the issue of testifying no further."
Even if we had not previously decided this issue, we would
nevertheless
reject
defendant's
argument.
We
are
entirely
unpersuaded by defendant's assertion that he would not have lied
during the suppression hearing had he known his false testimony
could be used to impeach him at trial, and then he would have
testified
at
trial.
suppression hearing.
Defendant
perjured
N.J.S.A. 2C:28-1(a).
himself
at
the
Defense counsel was
not ineffective for failing to tell defendant that witnesses in
judicial
proceedings
Witnesses
are
truthfully
when
well
they
are
aware
take
obligated
of
an
their
oath
to
testify
truthfully.
obligation
to
testify
or
to
do
affirm
so.
Defendant's argument warrants no further discussion in a written
opinion.
R. 2:11-3(e)(2).
Defendant's third argument in Point IB of his brief is that
his attorney was ineffective for abandoning a theory of selfdefense.
We disagree.
The use of force in self-protection "is justifiable when
the actor reasonably believes that such force is immediately
15
A-5720-11T1
necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion."
N.J.S.A. 2C:3-4a.
The use of deadly force, however, "is not
justifiable . . . unless the actor reasonably believes that such
force is necessary to protect himself against death or serious
bodily
harm[.]"
N.J.S.A.
2C:3-4(b)(2).
Nor
is
the
use
of
deadly force justifiable if the "actor knows that he can avoid
the
necessity
of
using
retreating . . . ."
such
force
with
complete
safety
by
N.J.S.A. 2C:3-4(b)(2)(b).
Contrary to his suppression hearing testimony, defendant
now
admits
that
he
shot
and
killed
Brantley,
but
claims
he
feared for his life because Brantley attempted to shoot him the
previous
night.
Defendant
does
not
attempt
to
refute
the
testimony of the three witnesses who saw defendant walk away
from Brantley before Brantley went to his car and started to
drive away.
Considering those circumstances, defendant's claim
of self-defense had no greater likelihood of success than the
defense
theory
his
differently,
there
distinguished
from
counsel
is
a
pursued
no
at
reasonable
speculative
trial.
Stated
probability,
possibility,
that
as
defense
counsel's choice of strategy would have resulted in a different
outcome at trial.
Strickland, supra, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698.
16
A-5720-11T1
B.
Defendant next contends in Point IC that his trial counsel
was ineffective for failing to "seek the appropriate relief"
with respect to the testimony of two witnesses.
investigator,
explained
to
the
jury
his
The first, an
methodology
for
selecting photos to place in an array to show witnesses.
The
investigator testified:
First we'll usually obtain the picture of a
suspect or target and then we'll select
other photographs of people with the same
characteristics, same sex of course, same
race, general features.
Then we assemble a
photo array. (5t201)
The other instance occurred when a homicide detective, who
had not located any witnesses on the night of the shooting,
testified
at
trial
that
he
"started
canvasing
the
area
and
talking to individuals in the area and came up with a few names
to go talk to and interview."
The detective was then asked by
the prosecutor: "[n]ow, during the course of this investigation,
who, if anyone, did you interview?"
The detective responded: "I
interviewed [defendant]."
Defendant argues that in both instances the testimony "led
the jury to believe that non-testifying witnesses had provided
the police with evidence of the defendant's guilt[,]" and "[a]s
a result, the testimony of the two officers suggested that [the
two men and the woman on the corner of Twelfth Street and Avon
17
A-5720-11T1
Avenue] were not the only witnesses who provided the police with
information."
Defendant further asserts that his counsel was
ineffective for not requesting an instruction that the jury "was
not to infer any non-testifying witnesses had implicated the
defendant in the shooting."
We conclude there was no reasonable probability that, but
for counsel's failure to request a limiting instruction, the
result of the trial would have been different.
Strickland,
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The two men and the woman who were on the street corner when
defendant was arguing with Brantley had identified him.
Two of
those witnesses testified that they knew who he was before the
night of the shooting.
Moreover, one of those same witnesses
had overheard defendant make an inculpatory statement while in
jail.
In view of that substantial evidence, it is unlikely, let
alone reasonably probable, that a questionable supposition about
what the jury inferred would have led to a different verdict.
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
C.
In his pro se supplemental brief, defendant argues that the
PCR court's findings were contrary to the facts outlined in
defendant's
supplemental
PCR
petition
18
dated
June
29,
2011.
A-5720-11T1
Having reviewed the argument in light of the record on remand,
we conclude that to the extent we have not previously addressed
defendant's argument in this opinion, the argument is without
sufficient merit to warrant further discussion.
Affirmed.
19
A-5720-11T1