SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2657-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN LLOYD, a/k/a

CHRIS BARRETT, and

DEVIN KEITH,

Defendant-Appellant.

Submitted May 12, 2020 – Decided June 26, 2020

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 09-10-2752.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Frank M. Gennaro, Designated Counsel, on 

the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

Hanley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the 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NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin Lloyd appeals from the denial of his petition for postconviction relief (PCR), contending trial and appellate counsel were ineffective, 

and the PCR court improperly denied his petition without an evidentiary hearing. 

We affirm.

The detailed circumstances leading to defendant's arrest and charges were 

set forth in our opinion in defendant's direct appeal. We need not repeat them 

here. State v. Lloyd, No. A-0684-13 (App. Div. July 6, 2016).

Essentially, Terrell Smith was shot in the back after being chased by the 

shooter through a shopping center into a parking lot across the street and into a 

residential area. Id. at 1-2. Two security officers working in the mall described 

the shooter to police. Id. at 3.

Surveillance footage was obtained from cameras in several stores and in 

the mall. Defendant was identified as the shooter. The shirt he was wearing at 

the time of the shooting was discarded and later recovered. Defendant's DNA 

was found on the shirt. Several witnesses in the mall identified defendant in a 

photo array. Smith told the police and grand jury he never turned around during 

the chase and therefore he did not know who the shooter was.
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Joseph Sterling, a maintenance man and night watchman who had 

witnessed the shooting, told police he knew the shooter; he identified him from 

the photo array, but stated he only knew him by the name "Mousey." During 

trial, however, Sterling said he had no recollection of the events surrounding the 

shooting, it had occurred before he arrived at the mall and he had no recollection

of the statement he had given to police. After a N.J.R.E. 104 hearing, the court 

admitted Sterling's prior recorded statement. The victim, Smith, did not testify 

at the trial.

Defendant was convicted by a jury in 2011 of attempted murder and 

several weapons offenses. He moved for a new trial, presenting a statement 

from Smith who recanted the testimony he had given before the grand jury. 

Smith now stated he knew who the shooter was, and it was not defendant.

During an evidentiary hearing, Smith testified he lied to the grand jury because 

he was scared of the shooter. Smith admitted he was incarcerated with defendant 

in the same correctional facility for approximately eighteen months although he 

denied knowing defendant was in the jail or that defendant was awaiting trial 

for shooting him. In denying the motion for a new trial, the trial court found 

Smith's recantation of testimony was not credible or reliable.
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Defendant was sentenced to life in prison without parole. On appeal, we 

affirmed the convictions but remanded for resentencing. Id. at 1.

On remand, defendant was sentenced to an extended term of thirty years 

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appealed. We 

remanded again, finding the trial court had not provided sufficient reasons for 

the imposition of an extended term. State v. Lloyd, No. A-2803-17 (App. Div. 

Dec. 5, 2018). The Supreme Court thereafter denied defendant's petition for 

certification. State v. Lloyd, 238 N.J. 357 (2019).

Defendant filed a pro se PCR petition in 2016, and thereafter, assigned 

counsel filed a brief. Defendant asserted trial counsel was ineffective for failing 

to: (1) retain a DNA expert and to contest the DNA evidence; (2) challenge the 

shirt he allegedly wore at the time of the crime; (3) interview witnesses, 

including Smith; (4) object to the identification made by Sterling; and (5) obtain 

transcripts of Sterling's testimony. Defendant also alleged appellate counsel was 

ineffective in failing to raise certain issues on appeal.

The PCR court granted an evidentiary hearing. In addition to defendant, 

a paralegal from defendant's trial counsel's office testified at the hearing in 

March 2018. Defense counsel had passed away prior to the proceeding. 
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In an oral decision issued August 22, 2018, the PCR court found defendant 

"failed to provide any legal or evidentiary basis to support his claims of 

ineffective assistance of counsel as to either trial or appellate counsel . . . ." The 

court noted defendant "was not responsive to questions posed, argumentative, at 

times confrontational and at times attempted to avoid the questions asked." The 

court characterized defendant's testimony as "lack[ing] total credibility or 

reliability." 

In addressing each of defendant's allegations of ineffective assistance of 

trial counsel, the PCR court found counsel had made decisions and employed 

trial strategies "well within [his] purview." Defendant proffered names of 

witnesses that he stated should have been interviewed or called to testify. 

However, defendant failed to explain what testimony these witnesses might have 

offered or how their testimony could have affected the outcome of the case. The 

court stated that defendant's allegations were "bald assertions," unsupported by 

any facts. The PCR court also reviewed the allegations of ineffective assistance 

against appellate counsel and rejected them, finding no deficiency in counsel's

representation.

In conclusion, the PCR court stated, "Having presided over th[e] trial of 

this matter there is no doubt in this [c]ourt's mind that [defendant] was convicted 
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by a jury of his peers on the overwhelming evidence of guilt presented by the 

State as opposed to any alleged ineffective assistance of either trial or appellate 

counsel." The court noted the surveillance video, statements of witnesses, the 

identification of defendant as the shooter by witnesses and Sterling, and the

DNA evidence. The PCR petition was denied.

On appeal, defendant presents the following issues:

TRIAL COUNSEL'S NEGLECT TO ADEQUATELY 

COMMUNICATE WITH DEFENDANT, TO 

PROPERLY INVESTIGATE THE CASE, AND TO 

INTERVIEW AND PRODUCE WITNESSES 

CONSTITUTED INEFFECTIVE ASSISTANCE OF 

COUNSEL 

A. THE PREVAILING LEGAL PRINCIPLES 

REGARDING CLAIMS FOR INEFFECTIVE 

ASSISTANCE OF COUNSEL, EVIDENTIARY 

HEARINGS AND PETITIONS FOR POSTCONVICTION RELIEF 

B. FAILURE TO COMMUNICATE, INVESTIGATE 

AND CALL WITNESSES 

In a pro se supplemental brief, defendant reiterates his counseled 

arguments and renews additional arguments presented before the trial court:

POINT I: [THE] PCR COURT ABUSED ITS 

DISCRETION WHEN IT DENIED THE 

APPELLANT'S INEFFECTIVE ASSISTANCE OF 

COUNSEL CLAIM WHERE TRIAL COUNSEL 

FAILED TO INVESTIGATE AND PRESENT A 

COMPLETE DEFENSE, VIOLATING THE 
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APPELLANT'S SIXTH AND FOURTEENTH 

AMENDMENT RIGHTS TO COUNSEL AND A FAIR 

TRIAL 

POINT II: [THE] PCR COURT ERRED WHEN IT 

DENIED THE APPELLANT'S INEFFECTIVE 

ASSISTANCE OF COUNSEL CLAIM THAT TRIAL 

COUNSEL FAILED TO HAVE THE TRANSCRIPTS 

OF A WITNESS JOSEPH STERLING'S 

INCONSISTENT TESTIMONY ADMITTED INTO 

EVIDENCE WITH HIS AUDIO RECORDED 

STATEMENT THAT THE STATE HAD ADMITTED 

AS HIS TESTIMONY, VIOLATING THE 

APPELLANT'S FIFTH, SIXTH AND FOURTEENTH 

AMENDMENT RIGHTS TO DUE PROCESS OF 

LAW, WHEREFORE THE CONVICTION MUST BE 

SET ASIDE AND A NEW TRIAL MUST BE 

GRANTED 

POINT III: [THE] PCR COURT ERRED WHEN IT 

DENIED THE APPELLANT'S INEFFECTIVE 

ASSISTANCE OF COUNSEL CLAIM WHERE 

TRIAL COUNSEL FAILED TO CONTEST THE 

POLICE PROCEDURE WHICH WAS USED WHEN 

THE INVESTIGATING OFFICERS FAILED TO 

FOLLOW THE ATTORNEY GENERAL GUIDELINE 

OF APRIL 18, 2001, VIOLATING THE 

APPELLANT'S SIXTH AND FOURTEENTH 

AMENDMENT RIGHTS TO DUE PROCESS OF 

LAW, WHEREFORE THE CONVICTION MUST BE 

SET ASIDE AND A NEW TRIAL GRANTED 

POINT IV: [THE] PCR COURT ABUSED ITS 

DISCRETION WHEN IT DENIED THE 

APPELLANT'S INEFFECTIVE ASSISTANCE OF 

COUNSEL CLAIM WHERE TRIAL COUNSEL 

ADMITTED THAT HE WAS INEFFECTIVE BY 

INITIALING AND WRITING ON TWO SHEETS OF 
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PAPER SEVERAL ISSUES WHERE HE WAS 

INEFFECTIVE, VIOLATING THE APPELLANT'S 

FIFTH, SIXTH AND FOURTEENTH AMENDMENT 

RIGHTS TO DUE PROCESS OF LAW, 

WHEREFORE THE CONVICTION MUST BE SET 

ASIDE AND A NEW TRIAL GRANTED 

The standard for determining whether trial counsel's performance was 

ineffective for purposes of the Sixth Amendment was formulated in Strickland 

v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State 

v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective 

assistance of counsel, defendant must meet the two-prong test establishing both 

that: (l) counsel's performance was deficient and he or she made errors that were 

so egregious that counsel was not functioning effectively as guaranteed by the 

Sixth Amendment to the United States Constitution; and (2) the defect in 

performance prejudiced defendant's rights to a fair trial such that there exists a 

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

of the proceeding would have been different." Strickland, 466 U.S. at 687, 694. 

The same standard applies to appellate counsel. State v. O'Neil, 219 N.J. 598, 

610 (2014) (citation omitted).

We are satisfied from our review of the record that defendant failed to 

demonstrate trial and appellate counsel were ineffective under the StricklandFritz test. Defendant has not proffered how the testimony of a defense DNA 
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expert might have changed the outcome of the case. Nor has he presented 

affidavits from any witnesses he asserts should have been interviewed and called 

to testify at trial. Without any factual underpinning, defendant's allegations are 

nothing more than "bald assertions," and cannot suffice to establish a prima facie 

case of ineffective assistance of counsel. See State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999).

In addition, defendant challenges his trial and appellate counsel's strategic 

decisions. As our Supreme Court has stated, "An attorney is entitled to 'a strong 

presumption' that he or she provided reasonably effective assistance, and a 

'defendant must overcome the presumption that' the attorney's decisions 

followed a sound strategic approach to the case." State v. Pierre, 223 N.J. 560, 

578-79 (2015) (quoting Strickland, 466 U.S. at 689). Given the deference due 

to the PCR court's factual findings and credibility assessments, we are satisfied

defendant's allegations do not meet the Strickland standard of deficient 

performance. Moreover, defendant has not demonstrated that any of the alleged 

deficiencies would have changed the outcome.

Because his petition was based on bald assertions and did not present a 

prima facie case of ineffective assistance of counsel, defendant was not entitled 

to an evidentiary hearing and the petition was properly denied. See State v. 
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Preciose, 129 N.J. 451, 462 (1992). Any remaining arguments are without 

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

Affirmed.