SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0906-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN A. VAUTERS,

Defendant-Appellant.

_______________________

Submitted January 5, 2021 – Decided

Before Judges Yannotti and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 12-05-

0795 and 13-01-0029.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (Nancy A. Hulett, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 2, 2021
2

A-0906-18T4

Defendant appeals from an order dated January 5, 2018, which denied his 

petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Middlesex County Indictment No. 12-05-

0795 with first-degree murder of Eugene Lockhart, N.J.S.A. 2C:11-3(a)(1) or 

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

(count two); first-degree armed robbery of Lockhart, N.J.S.A. 2C:15-1 (count 

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

(count four); second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a) (count five); third-degree hindering his own detention, 

apprehension, investigation, prosecution or conviction, N.J.S.A. 2C:29-3(b)(1) 

(count six); third-degree hindering an investigation, N.J.S.A. 2C:29-3(b)(4) 

(count seven); third-degree witness tampering of B.A. and H.R., N.J.S.A. 2C:28-

5(a)(1) (counts eight and nine); and attempted false incrimination of M.V., 

N.J.S.A. 2C:28-4(a) (count ten).1 Defendant also was charged under Middlesex 

County Indictment No. 13-01-0029 with first-degree witness tampering of D.W., 

N.J.S.A. 2C:28-5(a) (count one). Defendant was tried before a jury in a single 

proceeding on all charges. 

1

 We use initials to identify certain individuals to protect their privacy. 
3

A-0906-18T4

II.

At the trial, the State presented evidence which showed that at 6:45 a.m. 

on January 10, 2012, the police found Lockhart's body in Pittman Park in New 

Brunswick. He had been shot once in the head at close range. The police found 

several packets of heroin stamped "Fire Blood" on the ground near the body. 

The heroin packets formed a trail going across the street from Pittman Park to 

Feaster Park.

The zipper on Lockhart's pants was open. It appeared he had been 

searched. Six packets of cocaine were found in Lockhart's mouth, and expert 

testimony indicated that drug sellers often stash drugs in their mouths. The 

police found a black wallet in Feaster Park, which contained Lockhart's 

identification, driver's license, and several bank cards. 

The medical examiner determined the bullet had traveled through 

Lockhart's head and exited the back of his head. The wound was consistent with 

a wound caused by a medium caliber bullet, like a .9mm or .357 bullet. The 

medical examiner found the gunshot wound was the cause of death. 

The police spoke with M.N., who was seen standing near Pittman Park as 

the officers were searching the area. M.N. said he knew Lockhart and Lockhart 

had been selling heroin and crack cocaine the previous night. M.N. saw 
4

A-0906-18T4

defendant in the area around 2:50 a.m. M.N. said defendant told him he did not 

like Lockhart, and he was going to rob him. At around 3:00 a.m., M.N. noticed 

that defendant was in possession of a nickel-plated gun. He heard defendant tell 

Lockhart he had three bags of cocaine to sell him, and he saw defendant and 

Lockhart walk up the street together. 

M.N. walked around the corner and was following a "kid" who was known 

as "Blue." M.N. saw defendant and Lockhart talking. He saw Lockhart with his 

pants down, and defendant was "running" his pockets. According to M.N., 

defendant had a shiny object in his hand. M.N. left the area because he did not 

want to be involved. He asked Blue for the time, and he said it was around 4:21 

a.m. M.N. then heard a gunshot and left the area. 

An investigator from the Middlesex County Prosecutor's Office contacted 

Lockhart's mother to inform her of Lockhart's death. She provided the 

investigator with Lockhart's cellphone number. The investigator determined 

that the phone was still operable. He obtained a warrant, and the police tracked 

the location of the phone to a location on Carmen Street in New Brunswick. 

Later, the police set up surveillance at that location and observed 

defendant leave a house on Carmen Street. Defendant was found to be in

possession of two cellphones, one of which was Lockhart's phone. Defendant 
5

A-0906-18T4

also was found to be in possession of six bags of heroin stamped "Fire Blood" 

and two bags of heroin stamped "Nike." 

The police informed defendant of his Miranda rights.2 Defendant waived 

his rights and gave a statement to the police. He claimed a member of the Grapes 

subset of the Crips gang had killed Lockhart. Defendant stated that he did not 

know Lockhart well, and asserted that he was home by 1:00 a.m. on the night of 

the murder. 

Defendant said he had obtained one of the cellphones two or three days 

earlier from a drug user in exchange for cocaine. The police told defendant the 

phone was Lockhart's phone and Lockhart had used the phone to call his mother 

the night before he was shot. Defendant could not explain the discrepancy. He 

said he found the gun on Remsen Avenue at around 1:00 a.m. that morning. 

The police executed a search warrant at defendant's home on Carmen 

Street in New Brunswick. They found one .9mm cartridge on the floor of

defendant's bedroom. In the backyard, the police found a .9mm handgun, which 

was wrapped in a blue shirt and stashed between a fence and an air conditioner. 

The gun had a magazine with five unfired rounds, and one chamber contained a 

spent cartridge casing. The gun and casing were tested and found to be operable.

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
6

A-0906-18T4

The police obtained surveillance footage from a camera located on the 

corner of Remsen Avenue and Seamen Street. The surveillance footage showed 

defendant walking with Lockhart, M.N., and another person at 2:50 a.m. to 2:57 

a.m. on the day of the murder. Lockhart's mother testified that she spoke to her 

son every day, and phone records showed that she spoke to Lockhart at 10:22 

p.m. on January 9, 2012. 

B.A. testified that he was defendant's close friend, even though defendant 

was a member of the Bloods and he was a member of the Crips. B.A. said that 

on the evening of January 9, 2012, he was with defendant from 8:00 p.m. to 

10:00 p.m. Defendant drove B.A. around New Brunswick so that B.A. could 

deliver drugs he had obtained from a drug user. 

Defendant and B.A. stopped for gas between 8:00 p.m. and 9:00 p.m. 

They saw D.W., who came to the car and told defendant he needed a ride to 

Long Branch. D.W. claimed he had just been robbed at gunpoint by a person 

with the street name of "Rells." Lockhart was known by that street name.

Defendant agreed to drive D.W. to Perth Amboy, where he could get a 

train from there to Long Branch. During the ride, defendant told B.A. he had

loaned Lockhart his gun to commit a robbery, but Lockhart had not split the 

proceeds with him. Defendant said he planned to rob Lockhart, and he wanted 
7

A-0906-18T4

to do so in a dark spot, like near the park on Seamen Street. B.A. tried to talk 

defendant out of robbing Lockhart, but defendant told him he was going to "bust 

[Lockhart's ass]" and leave him "in the pit."

Defendant and B.A. dropped off D.W. in Perth Amboy and returned to 

New Brunswick. Defendant left B.A. at 10:00 p.m., and B.A. did not see 

defendant again that night. The following day, B.A. heard that Lockhart had 

been killed. On January 10, 2012, at around 9:00 p.m., defendant called B.A. 

on Lockhart's phone. He wanted to meet B.A. but B.A. refused to meet him at 

that time. However, B.A. saw defendant later that night and told him he knew 

what he had done. According to B.A., defendant just smirked.

 Sometime later, D.W. was incarcerated on an unrelated matter. While 

D.W. was in jail, he received threats against himself and his family. He was 

told he would be killed if he "snitched" on defendant. D.W. was placed in 

protective custody, but the threats continued. D.W. informed an investigator 

about a threatening letter he received. The investigator testified about the letters 

D.W. received and said they included statements gangs use as threats. 

Defendant called Y.A. from jail. He told her he would be sending her a

letter, which would contain two letters. In another call, defendant told Y.A. he 

wanted her to reach out to B.A., who was her former boyfriend. She later 
8

A-0906-18T4

received a letter from the jail with no return address. It contained letters for 

Y.A. to deliver to H.R. and B.A. The letter to H.R. asked him to say that on the 

night Lockhart was killed, he saw a tall black man robbing him. The letter to 

B.A. asked him to blame defendant's uncle for the murder.

The jury found defendant guilty of all charges. The jurors also answered 

special interrogatories pertaining to the aggravating factors for sentencing on 

the murder charge. The jury found defendant murdered Lockhart by his own 

conduct while engaged in the commission of a robbery. 

The judge sentenced defendant to a life sentence without parole for the 

murder. The judge merged certain counts, and imposed concurrent sentences on 

counts two, three, five, six, seven, and ten. The judge imposed a sentence of six

years on counts eight and nine, to be served consecutive to the sentence on count 

one. In addition, the judge sentenced defendant to a consecutive term of thirteen 

years for the witness tampering charged in Indictment No. 13-01-0029. The 

judge entered a judgment of conviction (JOC) dated October 29, 2013.

III.

Defendant appealed from the JOC and his attorney raised the following 

arguments:

POINT I
9

A-0906-18T4

THE COURT'S IMPROPER EXCLUSION OF 

TESTIMONY FROM LOCKHART'S MOTHER 

ABOUT THREATS HER SON HAD RECEIVED 

COMPROMISED DEFENDANT'S RIGHT TO OFFER 

SUPPORT FOR HIS CLAIM OF THIRD-PARTY 

GUILT, VIOLATING HIS CONSTITUTIONAL 

RIGHTS.

POINT II

THE COURT'S FAILURE TO PROVIDE THE JURY 

WITH A LIMITING INSTRUCTION REGARDING 

THE POST-HOMICIDE CHARGES DEPRIVED 

DEFENDANT OF HIS CONSTITUTIONAL RIGHTS 

TO DUE PROCESS AND A FAIR TRIAL (Not Raised 

Below).

POINT III

THE IMPOSITION OF THE SENTENCE OF LIFE 

WITHOUT PAROLE WAS, UNDER THE 

CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF 

THE PROHIBITION AGAINST CRUEL AND 

UNUSUAL PUNISHMENTS U.S. CONST., 

AMENDS. VIII, XIV; N.J. CONST. (1947), ART. 1, 

PAR. 12 (Not Raised Below).

Defendant filed a supplemental pro se brief in which he raised the 

following arguments:

POINT [I]

Did the prosecutor[']s references that defendant was in 

custody on an out-standing arrest warrant violate[] his 

constitutional rights under state and federal law[?]

POINT [II]
10 A-0906-18T4

Did the prosecutor deny defendant a fair trial and due 

process by withholding material evidence in violation 

of both[], the Brady[3]rule, and the rules of discovery[?]

POINT [III]

Did the prosecutor deny the defendant a fair trial and 

due process of law by using false testimony to gain an 

unfair advantage over the defendant[?]

POINT [IV]

Because the prosecutor committed misconduct by 

making misleading and confusing [innuendoes], and 

factual assertions she knew were not supported by the 

established facts of the DNA or scientific, forensic 

evidence, . . . defendant [was denied] a fair trial[.]

POINT [V]

Did the prosecutor deny the defendant due process and 

a fair trial by interfering with his rights to effectively 

cross-examine, and elicit favorable information leading 

to a potential [third] party[']s guilt[?]

POINT [VI]

. . . [T]he trial court [erred] by permitting, without any 

instruction, defendant[']s involvement with the 

[B]loods street gang[, which] violated his rights under 

the Sixth, and Fourteenth Amendments to the [United 

States Constitution] and [N.J.R.E.] 404(b)[.]

POINT [VII]

. . . [T]he trial court failed to give an immediate 

instruction to the jury on how it is to use the other 

crimes evidence, i.e., the CDS [Controlled Dangerous 

Substance], the weapon, the evidence, and the arrest 

warrant evidence[, which] violated defendant[']s state 

and federal constitutional rights. 

3

 Brady v. United States, 397 U.S. 742 (1970). 
11 A-0906-18T4

We rejected these arguments and affirmed defendant's convictions and 

sentences. State v. Vauters, No. A-3503-13 (App. Div. Jan. 15, 2016) (slip op. 

at 23). Defendant thereafter sought review of our judgment by filing a petition 

for certification with the Supreme Court. The Court denied the petition. State 

v. Vauters, 224 N.J. 529 (2016). 

IV.

In May 2016, defendant filed a PCR petition in the Law Division, alleging 

ineffective assistance of trial counsel. The court assigned counsel to represent 

defendant, and counsel filed an amended petition, certification from defendant, 

and supporting brief. On December 22, 2017, the PCR judge heard oral 

argument on the petition, and on January 5, 2018, the judge placed his decision 

on the record. 

The judge noted that defendant had raised several claims of ineffective 

assistance of counsel. He alleged he was unfairly prejudiced by the introduction 

of evidence indicating he was a member of a gang. He claimed his counsel 

should have sought severance of the charges related to the murder with the posthomicide charges. He also claimed he was prejudiced because D.W., who was 

one of the State's witnesses, had testified in prison garb. 
12 A-0906-18T4

Defendant further alleged his counsel did not adequately present a defense 

against the State's evidence regarding the time frame in which he could have

committed the murder. Lastly, he claimed his attorney erred by failing to object 

to the admission of a letter that he allegedly wrote to M.N. He claimed the State 

failed to show a direct link between himself and the letter.

The PCR judge found that defendant had not shown that any actions of his 

trial or appellate counsel were unreasonable. The judge noted that in defendant's 

statement to the police, he had admitted he was a gang member, and several 

witnesses testified at trial that he was a member of a gang. The State also 

presented testimony from an expert explaining language used by gang members. 

The PCR judge found that while trial counsel did not object to the 

admission of the testimony regarding defendant's gang membership, it was 

probably a strategic decision. The judge pointed out that trial counsel had 

asserted that Lockhart had been a gang member, and he could have been killed 

by another gang member. 

The PCR judge also noted that the trial judge had denied defendant's 

motion to sever the homicide-related counts with those charging post-homicide 

offenses, which involved witness tampering. The trial judge had determined 

that evidence related to the murder and the witness tampering were admissible 
13 A-0906-18T4

in both trials, and there was no basis for severing the charges. The PCR judge

found defendant's trial counsel did not err by failing to re-file a motion for 

severance of the charges. 

In addition, the judge rejected defendant's claim that his attorney should 

have objected to D.W. testifying in prison clothing. The judge noted that 

defendant had argued he was prejudiced because of his association with D.W.

The judge found, however, that D.W.'s credibility would have been adversely 

affected by his testifying in prison clothing, but this would have prejudiced the 

State's case because D.W. was one of the State's witnesses. 

The judge further found that there was no merit to defendant's claim that 

his trial attorney erred by failing to object to the admission of a letter that 

defendant allegedly had written to M.N. The judge noted that a witness had 

been able to testify, based on his prior knowledge, that defendant had written 

the letter.

The judge concluded that defendant failed to show he was prejudiced by 

the alleged deficient performance by his attorney. The judge observed that the 

State had presented substantial evidence placing defendant with the victim near 

the time of the murder, as well as surveillance footage and cellphone data that 

connected defendant to the victim. The judge found that defendant failed to
14 A-0906-18T4

demonstrate that exclusion of the gang-related testimony or the letter would 

have resulted in a different outcome at trial. 

The judge also noted that defendant had raised additional arguments in his 

pro se brief, but these arguments had been previously raised and rejected on 

direct appeal. The judge concluded that defendant was not entitled to an 

evidentiary hearing on his petition and entered the January 5, 2018 order

denying PCR. This appeal followed.

V.

On appeal, defendant argues:

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HIS CLAIM THAT 

COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE BY AFFIRMATIVELY 

INTRODUCING IRRELEVANT AND PREJUDICIAL 

GANG EVIDENCE INTO HIS TRIAL.

We have considered defendant's argument and conclude it lacks sufficient 

merit to warrant extended comment. R. 2:11-3(e)(2). We affirm the order 

denying PCR substantially for the reasons stated by the PCR judge in the 

decision placed on the record. We add the following comments. 

A defendant asserting a claim of ineffective assistance of counsel must 

satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 

687 (1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J. 
15 A-0906-18T4

42, 58 (1987). Under that test, a defendant first "must show that counsel's 

performance was deficient." Strickland, 466 U.S. at 687. The defendant must 

establish that the attorney's performance "fell below an objective standard of 

reasonableness" and that "counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 

Id. at 687-88. 

The defendant also must show "that the deficient performance prejudiced 

the defense." Id. at 687. To establish prejudice, the defendant must show "there 

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

of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome" of the matter. 

Id. at 694. 

Furthermore, an evidentiary hearing on a PCR petition is required only 

when the defendant presents a prima facie case for relief, the court determines 

that there are issues of material fact that cannot be resolved by reference to the 

existing record, and the court determines that an evidentiary hearing is required 

to resolve the issues raised. State v. Porter, 216 N.J. 343, 354 (2013) (citing R.

3:22-10(b)). "A prima facie case is established when a defendant demonstrates 

'a reasonable likelihood that his or her claim, viewing the facts alleged in the 
16 A-0906-18T4

light most favorable to the defendant, will ultimately succeed on the merits.'" 

Id. at 355 (quoting R. 3:22-10(b)). 

On appeal, defendant claims his trial attorney was deficient in failing to 

object to the State's admission of evidence regarding his gang membership and 

the gang membership of certain witnesses. Defendant contends such evidence 

was irrelevant and unduly prejudicial. He asserts the trial judge had expressed 

concern about the admission of this evidence, but his attorney argued for its 

admission so that he could show the jury that Lockhart had been concerned about 

violence from a gang other than defendant's gang. Defendant contends any 

reasonable attorney would have known this evidence was inadmissible hearsay, 

and the PCR judge erred by finding counsel made a valid strategic decision in 

failing to object to its admission.

We are convinced, however, that the record supports the PCR judge's 

conclusion that defendant's trial counsel made a reasonable strategic decision to 

allow the State to introduce evidence regarding defendant's gang membership

and the gang membership of other witnesses. As the judge recognized, defense 

counsel wanted the jury to hear this evidence because it supported the claim that 

someone other than defendant murdered Lockhart. 
17 A-0906-18T4

The record shows that at trial, defense counsel elicited testimony from 

M.N. that Lockhart was a member of Grape Street, which is part of the Crips 

gang. M.N. testified that Lockhart had "snitched" on someone in the gang, 

which usually means that the "snitch" can get "disciplined." He explained that

"disciplined . . . means they'll beat you halfway to death." 

On redirect, M.N. testified that defendant was a member of Brim, which 

is part of the Bloods gang, and that "Blue" was affiliated with G-Shine, which 

is also a part of the Bloods gang. M.N. said he did not see any other Grape 

Street Crips on the scene at the time of the shooting. 

In addition, trial counsel elicited testimony from B.A. that he and 

Lockhart were members of the Crips and defendant was a member of Brim. B.A. 

further testified that the Bloods and the Crips did not get along, and that 

Lockhart and defendant sold drugs in the area near Pittman Park. Moreover, the 

DVD of defendant's recorded statement was played for the jury. As noted, in 

his statement, defendant told the police that a member of the Crips gang had 

killed Lockhart. 

Thus, the evidence that Lockhart was a member of the Grape Street subset 

of the Crips and that he had previously "snitched" on another member of the 

Crips was a key element of the defense strategy. Counsel wanted to raise 
18 A-0906-18T4

reasonable doubt as to defendant's guilt by asserting that Lockhart was killed by 

someone other than defendant. 

By not objecting to the evidence of gang affiliation, trial counsel was able 

to assert that Lockhart was a drug-dealing member of the Crips, who was at risk 

of being "disciplined" by other members of that gang. Moreover, defense 

counsel could not reasonably object to the introduction of testimony about 

defendant's gang membership. As noted, defendant admitted such membership 

in the statement he provided to the police. We reject defendant's contention that 

evidence regarding his gang membership was irrelevant. 

Therefore, the record supports the PCR court's determination that 

defendant failed to present a prima facie case for relief. Accordingly, the PCR 

court correctly found that defendant was not entitled to an evidentiary hearing 

on his petition. 

Affirmed.