SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4446-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK MILLER,

a/k/a DERRICK MAURICE 

MILLER, DEREK M. MILLER, 

DERRICK MILLER, JR., 

Defendant-Appellant.

___________________________

Submitted May 6, 2020 – Decided May 26, 2020

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 11-08-1559.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Hannah Kurt, 

NOT FOR PUBLICATION WITHOUT THE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.
2

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Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief). 

PER CURIAM

Defendant Derrick Miller appeals from a March 29, 2019 order denying 

his petition for post-conviction relief (PCR). We affirm for the reasons set forth 

in Judge Marysol Rosero's thorough and well-written twenty-five-page decision.

In 2011, Miller and his co-defendant Arthur Thompson were indicted on 

the following eleven counts: second-degree conspiracy to commit robbery, 

N.J.S.A 2C:5-2 and 2C:15-1; first-degree robbery, N.J.S.A 2C:15-l; first-degree

conspiracy to commit murder, N.J.S.A 2C:5-2 and 2C:ll-3(a)(l), (2); first-degree 

murder, N.J.S.A 2C:ll-3(a)(l), (2); first-degree felony murder, N.J.S.A 2C:11-

3(a)(3); first-degree attempted murder, N.J.S.A 2C:5-l and 2C:ll-3; fourthdegree aggravated assault, N.J.S.A 2C:12-l(b)(4); second-degree conspiracy to 

commit burglary, N.J.S.A 2C:5-2 and 2C:18-2(b)(l); second-degree burglary, 

N.J.S.A 2C:18-2(b)(1); second-degree unlawful possession of a weapon, 

N.J.S.A 2C: 39-5(f); and second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A 2C:39-4(a). Following a jury trial, Miller was convicted on all 

counts. 

On appeal, we affirmed Miller's convictions and his sentence, and 

recounted the underlying facts and evidence adduced at trial as follows:
3

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Defendants' convictions arose out of a home 

invasion and murder that occurred on January 18, 2010, 

at a residence in Irvington . . . . The evidence at trial 

established that the home was a two-family house 

where an adult brother and sister lived with their 

respective families. The sister, M.B., lived on the first 

floor with her son, J.B., her daughter, and her 

boyfriend, the victim, A.H. The brother, D.B., lived on 

the second floor with his daughter, K.B., and his 

granddaughter.

In the late evening on January 18, 2010, M.B. 

heard a banging noise and gunshots. She locked herself 

in the bathroom and called 911. K.B. was doing 

homework in her living room on the second floor and 

she heard what sounded like glass shattering. She went 

downstairs and saw A.H. on his knees with two men 

standing on either side of him. One of the men had A.H. 

in a headlock and another man was pointing a gun at 

A.H. One of the men saw K.B. and pointed the gun at 

her, prompting her to retreat upstairs.

J.B. was in his downstairs bedroom when he first 

heard a banging noise. He then went to his door and 

saw a man hop over the counter into the kitchen area. 

He could not see the man's face, but he saw a gun in the 

man's hand. J.B. closed his bedroom door and heard a 

gunshot and then heard three more gunshots. He 

escaped by climbing out the window.

D.B. was upstairs in bed when he heard a scuffle 

erupt in the downstairs apartment. Upon going 

downstairs, D.B. saw two individuals in the home, one 

wearing a "netted mask" and pointing a gun at A.H. and 

another holding A.H. by the neck. The man pointed the 

gun at D.B. and told him to "get the fuck out of there." 

D.B. thereafter heard a gunshot and ran outside. As he 

hid behind bushes, he heard more gunfire and saw two 
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men get into a car and drive away. Prior to their 

departure, D.B. was able to see the face of one of the 

assailants.

Almost immediately, the police responded to the 

home. D.B. pointed in the direction of the car and 

exclaimed to the police that "the car is right there[,]" 

and "that's them, that's them." The responding police 

officer testified that he followed the car and pulled it 

over several blocks from the home. The males in the 

vehicle were later identified as Miller and Thompson. 

Thompson was arrested on an outstanding warrant at 

the scene. Miller stayed with the vehicle.

Shortly after pulling the car over, the police 

brought D.B. to the scene. When D.B. arrived, Miller 

was standing by the car in handcuffs. D.B. voluntarily 

identified Miller to the police, saying "[t]hat's him." 

D.B. initially said he identified Miller by his clothing, 

but then retracted this statement and testified that he did 

not tell the police at the time that he could identify 

Miller by his face because he feared for his family's 

safety. The detectives who escorted D.B. to the scene 

testified that neither of them said anything to D.B. 

during the ride over, and that D.B. made his statement 

voluntarily. One of the detectives prepared a report 

memorializing the positive identification, but failed to 

include the words D.B. used.

Back at the home, the police found A.H. lying 

dead on the basement floor, having been shot three 

times. The police conducted a series of follow-up 

investigations and tests involving DNA sampling, soil 

sampling, gunshot residue, and blood splattering.

Prior to trial, the defendants moved to suppress 

the out-of-court identification by D.B. Thompson also 

moved to dismiss the indictment and sever the trials. 
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After conducting a Wade[

1

] hearing and taking 

testimony, the court denied the defendants' motions. As 

to the motion to suppress, the court found that the showup, although "inherently suggestive," was neither 

"necessarily impermissibly suggestive nor . . . 

necessarily subvert[ed] the reliability of the 

identification." The defendants failed to "show a 

scintilla of probative evidence relating to 

[suggestiveness] that would undermine the 

identification."

Thereafter, the court held a twelve-day jury trial. 

Among other evidence, the State proffered numerous 

witnesses and expert opinions, including a forensic 

scientist specializing in serology (the study of blood 

serum) and a forensic scientist specializing in DNA 

analysis. The serology expert found traces of blood on 

Miller's white thermal shirt and dark blue-gray pants. 

The State's forensic scientist analyzed the DNA 

samples from this clothing and concluded the blood on 

the clothing was that of the victim, A.H.

[State v. Miller, Nos. A-4022-12 and A-4055-12, slip 

op. at 7 (May 10, 2017).]

In 2019, Judge Rosero heard Miller's PCR petition, which raised seven 

grounds for post-conviction relief, and requested that the court hold an 

evidentiary hearing. Relevant to the issues raised on this appeal, Miller argued

his trial counsel was ineffective because counsel failed to visit the scene of the 

crime, locate witnesses, and hire an investigator to locate and interview 

 

1 United States v. Wade, 388 U.S. 218 (1967).
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witnesses who would exculpate him. Miller provided a statement from a former 

co-worker who stated Miller was with him and could not have committed the 

crimes with Thompson, which Miller alleged was the sort of alibi evidence his 

attorney failed to investigate. He also alleged his trial counsel coerced him into 

not testifying.

Judge Rosero rejected these arguments and found:

[I]n regard to the alibi defense, the defendant points out 

trial counsel's failure to call [his alibi witness]. The 

defendant argues that . . . [the witness], whom provided 

a handwritten statement in support of this PCR petition, 

would have testified that at the time of the murder, the 

defendant was just getting off of work, and could 

therefore not have been at the scene of the crime when 

the alleged murder happened. . . .

In support of his alibi claim, the defendant 

provided only a written statement by [the witness], and 

not an affidavit. Even assuming [the witness] would 

have testified in a manner consistent with his statement, 

that is, that they worked together and the defendant 

"went home at 10:15pm when his ride picked him up." 

[The witnesses]'s statement would have corroborated 

the State's evidence that someone, identified at trial as 

the co-defendant, picked the defendant up after work 

and went off to commit the crime as [the witness] was 

not with the defendant after the defendant was picked 

up. [The witness] would have place[d] the defendant 

close to the crime scene on the date and time of the 

offense. Additionally, on cross, [the witness] would 

not have been able to explain why the defendant fit the 

description of the assailant, and was arrested after the 

911 call, in such close proximity to the time and place 
7

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of the incident, with the co-defendant, and with a stain 

of the victim's blood on his shirt.

As such, the [c]ourt finds that trial counsel was 

not ineffective by not interposing an alibi defense 

because [the witnesses]'s testimony would have 

corroborated the State's assertion that the defendant 

was picked up by the co-defendant at work, at around 

the time of the indictment, placing defendant in close 

proximity to the scene of the victim's home and giving 

him the opportunity to commit the alleged crime. This 

tactical decision by trial counsel did not constitute an 

error because calling . . . an alibi witness would have 

very well been more detrimental to the defendant than 

the omission of his testimony was. Hence, the 

defendant has failed to show that counsel's acts or 

omissions amount to more than mere tactical strategy. 

[]State v. Davis, 116 N.J. 341, 357 (1989). As such, he 

has failed to establish a prima facie case under the 

Strickland[

2

] standard. Additionally, his claim is too 

speculative and a hearing would not aid the court as the 

issue can be resolved from the complete record. 

Regarding Miller's claim that he was coerced into not testifying, the judge 

found: 

[T]he defendant alleges that trial counsel advised him 

not to testify because "he had an [eighty-five percent]

chance of winning and he would certainly be convicted 

if he testified." . . . A comprehensive review of the 

record shows nothing expressly or implicitly of any 

coercion by defense counsel. On the contrary, the 

record clearly establishes that defendant's decision not 

to testify was his. His waiver was knowingly, 

 

2 Strickland v. Washington, 466 U.S. 668 (1984).
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voluntary, and without coercion. The trial record 

shows the following exchange:

The Court: [Addressing defense counsel] 

[I]t's my understanding that Mr. Miller and 

Mr. Thompson have elected not to testify 

in their own defense; is that correct?

[Miller's counsel]: That's my 

understanding, [j]udge. 

The Court: Mind if I voir dire them?

[Miller's counsel]: No, [j]udge.

The Court: Mr. Miller, you've been 

represented by [defense counsel]

throughout this case—you can sit down, 

sir— . . . and you discussed the case, 

discussed the various defenses, so forth 

and so on. Now [counsel] tells me you've 

elected not to testify in you[r] own defense; 

is that correct?

[Miller]: Yes.

The Court: And has anybody forced you or 

coerced you, or pressured you, in any way 

to make that decision?

Miller: No.

The Court: You are doing that of your own 

free will? 

[Miller]: Yes.
9

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The Court: After a full and complete 

consultation with [counsel]?

[Miller]: Yes.

The [d]efendant had the opportunity to notify the 

[j]udge that he was not making the voluntary and 

intelligent decision to waive his right to testify because 

he was being coerced by the trial counsel. Instead 

under oath, he told the [j]udge that he was not forced, 

coerced, or pressured in any way to make that decision, 

and that he was doing it of his own free will. As such, 

this [c]ourt finds that defendant's bald assertion that 

trial counsel was ineffective because he was coerced to 

waive his right to testify is not supported by the record, 

it is without merit, and as such, does not satisfy the first 

prong of the Strickland standard. The Court finds that 

based on the record, a hearing is not warranted as the 

defendant has not established a prima facie case under 

Strickland and there are no issues of material facts 

requiring a hearing. 

Miller raises the following points on this appeal: 

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE TRIAL 

COUNSEL WAS INEFFECTIVE FOR FAILING TO 

CONDUCT AN ADEQUATE INVESTIGATION, 

SPECIFICALLY FOR NOT OBTAINING AN ALIBI 

WITNESS, AND FOR ABRIDGING DEFENDANT'S 

CONSTITUTIONAL RIGHT TO TESTIFY.

A. Trial Counsel Failed To Conduct An 

Adequate Investigation, Specifically For Not 

Obtaining An Alibi Witness. 

B. Trial Counsel Abridged Defendant's 

Constitutional Right To Testify. 
10 A-4446-18T1

The Sixth Amendment of the United States Constitution and Article I, 

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the 

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610 

(2014) (citing Strickland, 466 U.S. at 686); see also State v. Fritz, 105 N.J. 42, 

58 (1987). To succeed on a claim of ineffective assistance of counsel, the 

defendant must meet the two-part test established by Strickland, 466 U.S. at 687, 

which our Supreme Court adopted in Fritz, 105 N.J. at 58.

Under Strickland, a defendant first must show his or her attorney made 

errors "so serious that counsel was not functioning as the 'counsel' guaranteed 

the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Counsel's 

performance is deficient if it falls "below an objective standard of 

reasonableness." Id. at 688.

A defendant also must show counsel's "deficient performance prejudiced 

the defense." Id. at 687. He or she must establish "there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different." Id. at 694. "A reasonable probability 

is a probability sufficient to undermine confidence in the outcome" of the 

proceeding. Ibid.
11 A-4446-18T1

We review a PCR court's decision to proceed without an evidentiary 

hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A 

defendant is entitled to an evidentiary hearing if he or she presents a prima facie 

case supporting PCR, the court determines 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. R. 3:22-10(b); 

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

court must "view the facts in the light most favorable to a defendant . . . ." State 

v. Preciose, 129 N.J. 451, 462-63 (1992). A defendant "must do more than make 

bald assertions," and must instead "allege facts sufficient to demonstrate 

counsel's alleged substandard performance." State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999). "[V]ague, conclusory, or speculative" 

allegations will not suffice. Porter, 216 N.J. at 355 (quoting Marshall, 148 N.J. 

at 158).

We agree with Judge Rosero's assessment that Miller's argument relating 

to the alleged failure to investigate and raise an alibi defense is a bald assertion. 

As the judge noted, defense counsel's pursuit of this alleged alibi would likely 

have strengthened the prosecution because Miller worked close to the crime 
12 A-4446-18T1

scene, was picked up from work by Thompson, and arrested in close proximity 

to the crime scene, which would have established it was feasible for Miller to be 

with the alibi witness and leave with enough time to commit his crimes. Miller's 

assertions regarding the alibi defense are speculative.

Finally, the record belies Miller's argument that he was coerced into not 

testifying. The trial judge carefully voir dired Miller, who clearly and 

unequivocally waived his right to testify. This argument is without sufficient 

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.