SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3328-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL PALMER,

Defendant-Appellant.

___________________________

Submitted March 29, 2017 – Decided

Before Judges Simonelli and Carroll. 

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Indictment 

No. 01-10-4196.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Richard Sparaco, Designated 

Counsel, on the brief).

Carolyn A. Murray, Acting Essex County 

Prosecutor, attorney for respondent (Sara A. 

Friedman, Special Deputy Attorney General/ 

Acting Assistant Prosecutor, of counsel and 

on the briefs).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

July 18, 2017
2 A-3328-13T2

PER CURIAM 

Defendant Michael T. Palmer appeals from the December 17, 

2013 Law Division order, which denied his petition for postconviction relief without an evidentiary hearing. We affirm.

I.

Following a jury trial, on October 27, 2003, defendant was 

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

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

(count two); and second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing on October 

27, 2003, Judge Thomas M. McCormack merged count three with count 

one and imposed a thirty-year term of imprisonment with a thirtyyear period of parole ineligibility on count one, and a concurrent 

thirty-year term of imprisonment on count two. 

The charges against defendant stemmed from the shooting death 

of Tarrod Grantham, known locally as Rallo, at approximately 4:25 

p.m. on August 4, 2001, at 2089 Columbia Avenue in Irvington.

1 The 

State's case relied heavily on the testimony of an eyewitness,

C.D., who was fourteen years old at the time of the shooting and 

resided at 2087 Columbia Avenue. According to C.D., she was 

outside her home between 3:00 p.m. and 3:30 p.m. when she saw 

 

1 We use fictitious house numbers in order to protect the identity 

of the persons involved in this case.
3 A-3328-13T2

Rallo walking toward 2089 Columbia Avenue, and then go up the 

steps of the building. C.D. saw Rallo standing on the front porch 

with his friend "Slick." C.D. then re-entered her home.

C.D. testified that at approximately 4:20 p.m., she returned 

to the porch of her home with her friend Marsha. She saw Rallo 

and Slick outside 2089 Columbia Avenue, and saw a person named 

Mike walking toward 2089 Columbia Avenue. C.D. identified 

defendant as Mike, and testified that she had seen him in the 

neighborhood more than twenty times. 

C.D. testified that as Mike approached 2089 Columbia Avenue,

Slick ran inside the building. She saw Mike draw near to Rallo 

and point his right arm at Rallo, who was standing on the steps. 

She "heard a boom, like a firecracker shot," saw smoke, and ran 

up the steps. She then saw Mike running toward Eighteenth Avenue. 

She ran to Rallo and saw that he had been shot in the chest. 

When the police arrived at the scene, C.D. told an officer

that Mike shot Rallo and provided a physical description of Mike. 

She then went to the police station to make a photo identification 

of Mike and to give a statement. She testified that she went 

through approximately twenty photos on the computer and was able 

to identify defendant as Mike from one of the photos. The police 

eventually located defendant and arrested him on August 28, 2001. 
4 A-3328-13T2

C.D. also made an in-court identification of defendant as the 

shooter.

C.D. did not identify anyone other than Mike, Rallo, Slick, 

and Marsha as being present at the time of the shooting. A 

detective attempted to locate additional witnesses to the 

shooting, but none came forward, and neither the second floor 

tenant at 2089 Columbia Avenue nor any other spectators at the 

scene had helpful information. 

Defendant's trial counsel went to the crime scene, but found 

little to investigate due to the passage of time since the shooting 

and the alteration of the buildings. The buildings at 2087 and 

2089 Columbia Avenue had been vacated and boarded up in the Spring 

following the shooting. Trial counsel also spoke to defendant 

about the possibility of using Slick as a witness, but defendant 

instructed counsel not to speak to him.

Trial counsel also tried to contact C.D., but discovered she 

had moved. Counsel eventually received C.D.'s new address shortly 

before trial, but never spoke to her. C.D. had given three 

statements that differed in some degree, so counsel decided to 

rely on those statements and try to exploit the inconsistencies 

at trial. At trial, counsel extensively cross-examined C.D. about 

her inconsistent statements.
5 A-3328-13T2

Prior to sentencing, defendant sought a new trial based, in 

part, on trial counsel's ineffective assistance in failing to 

investigate witnesses. Following an evidentiary hearing, at which 

trial counsel testified, Judge McCormack denied the motion, 

holding that counsel's performance was not deficient. 

Specifically, the judge stated that counsel's investigation of the 

case, her consultations with defendant, and her trial strategy 

could not be considered deficient.

Defendant appealed his conviction and denial of his motion 

for a new trial, arguing, in part, that trial counsel rendered 

ineffective assistance by failing to investigate and call C.B., 

another eyewitness to the shooting. While the appeal was pending, 

defendant filed a motion with this court to supplement the record 

to include Irvington Police Department reports of two interviews 

with C.B., dated August 26, 2004 and February 8, 2005, and a photo 

display and photograph form signed by C.B., dated February 7, 

2005, signed by C.B. In support of his motion, defendant stated 

that the supplemental material buttressed his contention that 

trial counsel's performance was deficient because C.B. had been

located and her recollection of the events exculpated him.

We affirmed, but remanded to correct the judgment of 

conviction (JOC) to reflect a concurrent three-year term of 

imprisonment on count two. State v. Palmer, No. A-2576-03 (App. 
6 A-3328-13T2

Div. Dec. 14, 2006) (slip op. at 15). We did not preclude defendant 

from pursuing PCR based on information or evidence that C.B. may 

have concerning the events of the afternoon of August 4, 2001. 

Id. (slip op. at 14). We found the supplemental material was, on 

its face, equivocal, and the information provided by C.B. was not 

exculpatory. Id. (slip op. at 14-15). However, we determined 

that none of the supplemental material was presented to the trial 

judge, and we did not preclude further consideration of this

material in a subsequent PCR petition. Id. (slip op. at 15). Our 

Supreme Court denied certification. State v. Palmer, 194 N.J. 268

(2008).

Defendant filed a PCR petition, certifying that trial counsel 

rendered ineffective assistance by failing to investigate and call 

C.B. In support of his motion, defendant submitted an affidavit 

from C.B., dated August 12, 2012. Defendant also submitted an 

affidavit from C.B.'s mother, T.B., who was present during the 

police interviews with C.B. PCR counsel argued in his brief that 

trial counsel also rendered ineffective assistance by failing to 

call other witnesses and coercing defendant not to testify at 

trial; however, defendant did not certify to these facts and did 

not submit certifications from the alleged witnesses. 

On February 28, 2011, Judge McCormack entered an order 

granting an evidentiary hearing, but limiting the hearing to all 
7 A-3328-13T2

evidence discovered after defendant's conviction relating to trial 

counsel's alleged failure to investigate and call C.B. The order 

also included T.B.

At the start of the hearing before Judge Alfonse J. Cifelli,

defendant stated that in addition to C.B., he wanted to present 

evidence relating to trial counsel's failure to investigate other 

witnesses prior to and after trial. Judge Cifelli enforced Judge 

McCormack's February 28, 2011 order, and declined to expand the 

scope of the hearing beyond evidence discovered after defendant's 

conviction relating to trial counsel's failure to investigate and 

call C.B.

At the hearing, C.B. testified that she was eleven years old 

at the time of the shooting, and had signed the affidavit on August 

12, 2012, which stated that on August 4, 2001, she was outside

playing with C.D. when she saw a person known as Mike run between 

two houses and run to the porch of 2089 Columbia Avenue where 

Rallo and Slick were hanging out. Mike walked up to Rallo, held 

out his arm, and she heard a popping sound. C.B. testified she 

only saw the shooter's face from an angle from where she was 

sitting on the front of her house and it was C.D. who told her 

that the shooter was Mike. 

C.B. testified that the Mike she saw on August 4, 2001 was 

not in a photo array shown to her on February 7, 2005. She also 
8 A-3328-13T2

testified that she did not recognize and could not identify any 

of the people in the photo array shown to her, and acknowledged 

that the shooter could have been in the photos, but she was not 

sure. She admitted that she could not say with certainty that 

defendant was or was not the shooter. She testified that she did 

not come forward before August 26, 2004, because she did not want 

to get involved and her mother did not want her involved. She 

also testified that she would not have been willing to testify at 

trial absent a court order or subpoena.

T.B. testified that C.B. ran into the house and told her that 

someone got shot. She testified that she probably would not have 

permitted C.B. to provide any information to the police about the 

shooting, or provide any information herself. She also testified 

that she probably would not have allowed C.B. to testify at trial 

without a court order or subpoena out of concern for C.B.'s safety 

and because C.B. was a child. 

Judge Cifelli denied the petition. In a December 17, 2013 

oral opinion, the judge found defendant failed to show that trial 

counsel's performance was deficient, and even if deficient, that 

the outcome would have been different. The judge found that C.B.'s 

potential testimony would have provided "no discernible assistance

to [defendant's] defense or any impact on the outcome of the 
9 A-3328-13T2

trial[,]" as she "was clearly not able to provide any [firsthand]

information concerning the shooter and/or his identity[.]" 

Judge Cifelli also found trial counsel's alleged failure or 

inability to locate C.B., be it from lack of effort or otherwise, 

inconsequential to defendant's conviction for murder. The judge 

determined that C.B.'s potential testimony would not have 

contradicted or impeached C.D.'s positive in- and out-of-court 

identifications of defendant as the shooter, and C.D.'s testimony 

was sufficient for the jury to find defendant guilty of murder. 

On appeal, defendant raises the following contentions:

POINT I – [PCR] SHOULD HAVE BEEN GRANTED WHERE 

TRIAL COUNSEL FAILED TO INTERVIEW AND PRESENT 

TESTIMONY THAT WOULD CONTRADICT THE STATE'S 

ONLY EYEWITNESS.

POINT II – DEFENDANT WAS ENTITLED TO AN 

EVIDENTIARY HEARING ON THE ISSUE RAISED IN HIS 

[PCR] PETITION CONCERNING THE ALLEGATION THAT 

TRIAL COUNSEL COERCED THE DEFENDANT TO REFRAIN 

FROM TESTIFYING.

Defendant raises the following contentions in a pro se supplemental 

brief:

POINT I

The PCR Court improperly denied Defendant the 

Right to Present Evidence and Witnesses 

Contrary to Judge McCormack's Order Relating 

to Trial Counsel's Failure to Investigate.
10 A-3328-13T2

POINT II

PCR Counsel Was Ineffective For Failing to 

Honor the Defendant's Request And Ask C.B.

Questions Regarding the Fight [Defendant] Had 

With [the victim] the Day Before He Was 

Murdered.

The mere raising of a claim for PCR does not entitle the 

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). 

Rather, trial courts should grant evidentiary hearings and make 

determinations on the merits only if the defendant has presented 

a prima facie claim of ineffective assistance of counsel, material 

issues of disputed fact lie outside the record, and resolution of 

the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 

216 N.J. 343, 355 (2013). To establish a prima facie claim of 

ineffective assistance of counsel, the defendant 

must satisfy two prongs. First, he must 

demonstrate that counsel made errors so 

serious that counsel was not functioning as 

the counsel guaranteed the defendant by the 

Sixth Amendment. An attorney's representation 

is deficient when it [falls] below an 

objective standard of reasonableness. 

Second, a defendant must show that the 

deficient performance prejudiced the defense. 

A defendant will be prejudiced when counsel's 

errors are sufficiently serious to deny him a 

fair trial. The prejudice standard is met if 

there is a reasonable probability that, but 

for counsel's unprofessional errors, the 

result of the proceeding would have been 

different. A reasonable probability simply 
11 A-3328-13T2

means a probability sufficient to undermine 

confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) 

(citations omitted).]

"[I]n order to establish a prima facie claim, [the defendant] 

must do more than make bald assertions that he was denied the 

effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance." 

Cummings, supra, 321 N.J. Super. at 170. The defendant must 

establish, by a preponderance of the credible evidence, that he 

is entitled to the relief requested. State v. Nash, 212 N.J.

518, 541 (2013). "[W]hen a [defendant] claims his trial attorney 

inadequately investigated his case, he must assert the facts that 

an investigation would have revealed, supported by affidavits or 

certifications based upon the personal knowledge of the affiant 

or the person making the certification." Porter, supra, 216 N.J.

at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).

Our Supreme Court has established the standard of review in 

PCR cases where the court held an evidentiary hearing: 

In reviewing a PCR court's factual findings 

based on live testimony, an appellate court 

applies a deferential standard; it will uphold 

the PCR court's findings that are supported 

by sufficient credible evidence in the record. 

Indeed, [a]n appellate court's reading of a 

cold record is a pale substitute for a trial 

judge's assessment of the credibility of a 

witness he has observed firsthand. However, 
12 A-3328-13T2

a PCR court's interpretation of the law is

afforded no deference, and is reviewed de 

novo. [F]or mixed questions of law and fact, 

[an appellate court] give[s] deference . . . 

to the supported factual findings of the trial 

court, but review[s] de novo the lower court's 

application of any legal rules to such factual 

findings.

[State v. Pierre, 223 N.J. 560, 576-77 (2015) 

(citations omitted).]

We review a judge's decision to deny a PCR petition without an 

evidentiary hearing for abuse of discretion. State v. Preciose, 

129 N.J. 451, 462 (1992).

II.

Defendant contends in Point I of his merits brief that Judge 

Cifelli erred in denying PCR because the evidence showed that 

trial counsel failed to interview and call C.B., whose testimony 

would have called C.D.'s testimony into question. Since Judge 

Cifelli granted an evidentiary hearing on this issue, we must 

determine whether his findings are supported by sufficient 

credible evidence in the record. 

Generally, a criminal defense attorney "has a duty to make 

reasonable investigations or make a reasonable decision that makes 

particular investigations unnecessary." Strickland v. Washington, 

466 U.S. 668, 691, 104 S. Ct. 2052, 2006, 80 L. Ed. 2d 674, 695

(1984). The failure to investigate potential witnesses may 

constitute ineffective assistance. State v. Deutsch, 229 N.J. 
13 A-3328-13T2

Super. 374, 377 (App. Div. 1988) (citation omitted). A defendant 

may also establish ineffective assistance by showing that counsel 

failed to call exculpatory witnesses on his behalf. State v. 

Petrozelli, 351 N.J. Super. 14, 25 (App. Div. 2002). Moreover, 

"[t]he complete failure to investigate potentially corroborating 

witnesses cannot be attributed to trial strategy." State v. 

Arthur, 184 N.J. 307, 342 (2005) (citations omitted). However, 

the "decision not to investigate must be directly assessed for 

reasonableness in all the circumstances, applying a heavy measure 

of deference to counsel's judgments." Strickland v. Washington, 

supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The record amply supports Judge Cifelli's finding that 

defendant failed to show trial counsel's performance was 

deficient, and that even if deficient, the outcome would have been 

different. C.B. was not an exculpatory witness. She had no firsthand information about the shooter and/or his identity and could 

not say with certainty whether or not defendant was the shooter. 

In addition, C.B.'s potential testimony would not have been that 

the shooter was not in the photo array shown to her over three 

years after the shooting, but only that she could not make any 

identification and did not know if the shooter was in the array. 

Nor would C.B.'s potential testimony have impeached or 

contradicted C.D.'s positive identifications of defendant as the 
14 A-3328-13T2

shooter. Clearly, if C.B. had testified at trial, it would not 

have changed the result. She would not have testified that 

defendant was not the shooter.

III.

Defendant contends in Point II of his merits brief that Judge 

Cifelli erred in limiting the scope of the evidentiary hearing and 

denying a hearing on his claim that trial counsel coerced him not 

to testify and failed to investigate other witnesses. However, 

there is no credible evidence in the record supporting this

argument, as defendant did not certify that trial counsel coerced 

him not to testify. Defendant also did not submit affidavits from 

the alleged witnesses asserting the facts to which they would have 

testified. Porter, supra, 216 N.J. at 353.

In any event, defendant's contention that Judge Cifelli 

improperly limited the scope of the evidentiary hearing lacks 

merit. The limitation complied with our preservation of 

defendant's right to pursue PCR based on post-conviction evidence 

relating only to C.B. See Palmer, supra, (slip p. at 14-15). We 

did not preserve any other issue for PCR. 

Defendant's contention that trial counsel coerced him not to 

testify also lacks merit. The record belies defendant's claim 

that trial counsel coerced him not to testify. 
15 A-3328-13T2

"As with the right against self-incrimination, . . . 'it is 

the responsibility of a defendant's counsel, not the trial court, 

to advise defendant on whether or not to testify and to explain 

the tactical advantages or disadvantages of doing so or not doing 

so." State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v. 

Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988)). As the Court 

stated:

Counsel's responsibility includes advising a 

defendant of the benefits inherent in 

exercising that right and the consequences 

inherent in waiving it. To ensure that 

counsel meets that obligation, it may be the 

better practice for a trial court to inquire 

of counsel whether he or she had advised a 

defendant . . . of his or her right to testify. 

This will best ensure that defendant's 

constitutional rights are fully protected. 

Indeed, counsel's failure to do so will give 

rise to a claim of ineffectiveness of counsel.

[Id. at 631.]

Here, Judge McCormack asked trial counsel if defendant 

intended to testify, and counsel responded no. The following 

colloquy then occurred:

[COUNSEL]: Mr. Palmer, you understand that 

if you choose to, you can actually take the 

stand in your own defense?

THE DEFENDANT: Yes.

[COUNSEL]: And you're aware that we're ready 

and willing to proceed that way today?

THE DEFENDANT: Yes.
16 A-3328-13T2

[COUNSEL]: Isn't it true that I have been 

representing you since, I believe March 3rd 

of this year?

THE DEFENDANT: Yes.

[COUNSEL]: And I have met with you on numerous 

occasions to discuss defense strategy?

THE DEFENDANT: Yes.

[COUNSEL]: And during these conversations we 

discussed your possibly taking the stand. Is 

that correct?

THE DEFENDANT: Yes.

[COUNSEL]: And we have made the decision –

you personally made the decision for you not 

to testify?

THE DEFENDANT: Yes. 

[COUNSEL]: And you did so after consulting 

me?

THE DEFENDANT: Yes.

[COUNSEL]: After consulting with numerous 

family members?

THE DEFENDANT: Yes.

[COUNSEL]: Do you understand that you are 

giving up then your right to testify in your 

own behalf?

THE DEFENDANT: Yes.

[COUNSEL]: Are you doing so freely and 

voluntarily?

THE DEFENDANT: Yes.
17 A-3328-13T2

[COUNSEL]: And no one is forcing you to do 

that?

THE DEFENDANT: Yes – I mean no.

[COUNSEL]: Are you doing it voluntarily?

THE DEFENDANT: Yes.

[COUNSEL]: Are you under the influence of any 

alcohol or drug that would cloud your thoughts 

this morning?

THE DEFENDANT: No.

[COUNSEL]: Thank you.

THE COURT: Has your attorney had the 

opportunity to fully explain to you your 

options and the ramifications or the effect 

of each decision you make as to whether to 

testify or not testify in this case?

THE DEFENDANT: Yes.

THE COURT: Do you have any further questions 

you need to discuss with [counsel] with 

respect to your decision not to testify?

THE DEFENDANT: No.

It is clear from this colloquy that trial counsel advised 

defendant of his right to testify, he freely and voluntarily waived 

that right, and he was not forced to do so. Trial counsel's 

performance in this regard was not deficient.

IV.

We have considered defendant's contentions in Points I and 

II of his pro se supplemental brief in light of the record and 
18 A-3328-13T2

applicable legal principles and conclude they are without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). 

Affirmed.