Petitioner, Louis Pierce ("Pierce" or "Petitioner"), is a state prisoner incarcerated at New Jersey State Prison, in Trenton, New Jersey. Acting pro se, he commenced this habeas proceeding under 28 U.S.C. § 2254; Petitioner is, however, represented by appointed counsel at this stage of the litigation. Respondents, Greg Bartkowski and Paula T. Dow (collectively, "Respondents"), filed an answer to the Petition, and Pierce filed a reply. (ECF Nos. 19 & 23.) On February 9, 2018, the Court held an evidentiary hearing limited to the question of whether Petitioner received ineffective assistance of counsel in connection with his trial counsel's alleged failure to adequately advise him concerning his right to testify. (See ECF Nos. 25 & 35.) Following that hearing, the Court received supplemental briefing from the parties. (ECF Nos. 36-38.) Having considered these submissions and the evidence adduced at the February 9, 2018 hearing, and for the following reasons, the Petition is GRANTED in part and DENIED in part as follows: relief is denied on Ground One, claiming that the trial court erred in declining to hold a Wade hearing; relief is denied on Ground Two, claiming that the jury was tainted; relief is denied on Grounds Three and Six, claiming defective jury instructions concerning the victim's identification of Pierce; relief is denied on Ground Four, claiming that the conviction was against the weight of the evidence; relief is granted on Point A of Ground Five, claiming that trial counsel was ineffective by failing to adequately advise Pierce of his right to testify; relief is denied on Points B and C of Ground Five, claiming that trial counsel was ineffective by failing to object to a defense witness appearing in handcuffs and prison garb and failing to object to the State's alleged presentation of hearsay; relief is denied on Point D of Ground Five, claiming that trial counsel was ineffective by failing to advise Pierce of a plea offer; relief is denied on Points E and F of Ground Five, claiming that trial counsel was ineffective by failing to move for a Wade hearing and failing to object to allegedly misleading statements by the State in opposing a Wade hearing; relief is denied on Points G, H, I, and J of Ground Five, claiming that trial counsel was ineffective for other reasons; and relief is denied on Ground Seven, claiming defective jury instructions concerning the charge of attempted murder.
a. Underlying Facts and the Trial The Appellate Division, in its opinion affirming the first denial of post-conviction relief, summarized the underlying facts as follows:1
On November 5, 1996, Mike Rozier and Bart Merriel[2] drove to Camden from the home of Rozier's mother in Cinnaminson. While on their way to a restaurant owned by Rozier's brother, Rozier and Merriel stopped at the McGuire projects around 10:45 p.m. to talk to a group of people, whichincluded Jerome Williams, a man named Daron, a man named Lou, James Hymon, a girl, and defendant, with whom Rozier spoke and shook hands. Rozier had talked to defendant "three or four times" over the previous "four or five years," although he did not know defendant's name at the time. Everyone was drinking liquor, and Rozier and defendant were sniffing cocaine.
While Rozier and Merriel were preparing to leave shortly after midnight, Rozier, standing approximately thirteen yards from defendant, saw defendant pull out a gun and shoot Merriel. Rozier testified that he yelled at defendant and moved toward him, at which point defendant, while facing Rozier, shot Rozier twice in the abdomen and once in the right hand. Defendant then walked away after the shooting.
Williams, on the other hand, testified at trial that Lou, not defendant, did the shooting. When asked if defendant was the man named "Lou," Williams responded, "No. No." Hymon also contradicted Rozier, testifying at trial that he was introduced to a man named "Lou" that night. Hymon testified, "The guy Lou pulled out the gun and . . . shot Bart and then Mike at the same time, Mike Rozier was walking away before any shooting occurred, he had started walking away and after he shot Bart then he shot Mike."
Williams, also known as Fidel,[3] drove Rozier and Merriel to Our Lady of Lourdes Medical Center, where Rozier received medical treatment and his clothes were removed.[4] Officer William Wiley testified that he followed the car carrying Rozier and Merriel to the hospital after observing it speeding. The driver identified himself as James Watson rather than Jerome Williams. When Wiley asked Merriel for his account of the shooting, Merriel, who was in the same room as Rozier, said, "Whatever Mike said was what happened." Rozier talked with the police and gave a description of his assailant.[5]
In the meantime, Sergeant Richard Desmond responded to the McGuire projects. Finding nothing of evidential value, Desmond proceeded to the hospital and spoke with Rozier.
Desmond testified that Rozier rebuffed his attempts to obtain information; he did not recall speaking to Merriel.
Williams did not give a statement to the police at the hospital, but did so six days later on November 12, 2006. In that statement, Williams confirmed that "Lou" was at the crime scene. Williams was shown a photo array by the prosecutor's office at a later date; he testified that the shooter was not in that photo array but defendant's picture was there.
Hymon was questioned by the police shortly after the shooting, but he was released after Rozier and Merriel told the police he was not the shooter. Hymon testified that he was shown a photo array on February 25, 2000, but did not recognize anyone in it. Hymon also testified that defendant was not the shooter.[6]
Bruce Gilbert, an investigator with the Camden County Prosecutor's Office, testified to the photo array he showed Williams at the prosecutor's office. Gilbert confirmed that Williams did not recognize anyone in the array in any manner, even after he asked Williams if anyone in the array was present the night of the shooting. Gilbert also testified that he showed Hymon the same photo array he showed Williams. Gilbert stated that Hymon recognized defendant in the photo array but said the shooter was not in it. Hymon also viewed a photocopy of a lineup and did not see the shooter in it.
After Rozier left Cooper University Hospital, he stayed at his mother's house. He did not go to the police and did not give a formal statement. However, on November 10, 1997, a year after the shooting, Rozier met with a police officer he knew as "Peppy" and gave a taped statement. Rozier was also shown two photo arrays, one large and one small, which he believed contained the same pictures. Rozier identified defendant in both photo arrays as the shooter. Rozier also identified defendant in court as his assailant, saying he was "positive" that defendant was the shooter and "I don't forget nobody shooting me for nothing."
Detective Jerome Boyd, the officer known as "Peppy," was assigned to investigate the shooting approximately a year after it happened. Boyd confirmed that Rozier looked at the two photo arrays and gave a taped statement. Boyd said that Rozier "picked [defendant] right out" of both arrays, after which Boyd told Rozier the name of the person he identified. Boyd testified he had no other involvement in the case other than taking Rozier's statement, showing the photo arrays, issuing a warrant, and charging defendant.
Merriel never talked to the police because, according to Rozier, Merriel did not want to cooperate with them. Rozier testified that Merriel had problems with defendant in the past. Merriel died before the trial commenced from causes unrelated to the shooting.
At trial, defendant called Marla Wallace, defendant's girlfriend of twenty-one years, as an alibi witness. Wallace and defendant were living together in Philadelphia in November 1996. Wallace first heard about the shooting on the news at 5:30 a.m. one weekday, although she could not remember the specific date. Wallace testified that defendant was with her when she heard the news. Wallace said that Merriel was a "friend of the family" and to her knowledge, there were no bad feelings between defendant and Merriel. Wallace also twice spoke with defendant's investigator; neither time did she tell the investigator about the news report, but she did tell the investigator that she knew Merriel.
In rebuttal, the State called Cathy Simons, an employee in the news department of WPVI TV Channel Six, to testify. Simons examined the logs and transcripts for the November 6, 1996, newscast that aired at 5:30 a.m. She found no record of any news story about the shooting during the 5:30 a.m. show. The first time her station aired a story about the shooting was during the 5:00 p.m. Action News telecast on November 6. Gilbert was also called to rebut Wallace and testified that he spoke with her on June 14, 2000, before she testified. Wallace told him for the first time that day that she was going to testify about hearing a television news broadcast on Channel Six Action News at 5:30 a.m.
(Ans., Ex., Op. (July 26, 2010), State v. Pierce, No. A-0907-07T4 (N.J. Super. Ct. App. Div.), ECF No. 19-25, at 3-8 (omission, alteration, & footnotes [4] through [6] in original) (available at State v. Pierce, 2010 WL 2990765).
A jury convicted Pierce of two counts of attempted first-degree murder, under New Jersey Statutes Annotated §§ ("N.J.S.A.") 2C:11-3(a) and 2C:5-1, two counts of second-degree aggravated assault, under N.J.S.A. 2C:12-1(b)(1), one count of second-degree possession of a weapon for an unlawful purpose, under N.J.S.A. 2C:39-4(a), one count of third-degree unlawful possession of a handgun, under N.J.S.A. 2C:39-5(b), one...
