STATE OF NEW JERSEY VS. JASON J. HARRELL (03-12-1552, MIDDLESEX COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0369-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON J. HARRELL,

Defendant-Appellant. ___________________________________________

Submitted May 22, 2018 – Decided June 22, 2018

Before Judges Yannotti and DeAlmeida.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1552.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM Defendant Jason J. Harrell appeals from an order entered by

the Law Division on May 12, 2016, denying his second petition for

post-conviction relief (PCR). We affirm.

I.

Defendant was charged with first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2), and possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a). Defendant was tried before a jury,

which found him not guilty of murder, but guilty of the lesser-

included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a),

and the weapons charge. At sentencing, the judge merged the

offenses, and sentenced defendant for the manslaughter to a thirty-

year term of imprisonment, with an eighty-five percent period of

parole ineligibility pursuant to the No Early Release Act, N.J.S.A.

2C:43-7.2.

Defendant appealed from the judgment of conviction dated July

30, 2004. On appeal, defendant argued:

I. THE TRIAL COURT'S FAILURE TO CHARGE SELF- DEFENSE CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF THE DEFENDANT'S CONVICTION. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partially Raised Below).

II. THE DEFENDANT'S SENTENCE OF [THIRTY] YEARS FOR AGGRAVATED MANSLAUGHTER, WHICH WAS [TEN] YEARS BEYOND THE PRESUMPTIVE TERM, IS UNCONSTITUTIONAL AS IT IS IN VIOLATION OF THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL

2 A-0369-16T1 RIGHTS TO TRIAL BY JURY, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

III. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

IV. PROSECUTORIAL COMMENT SUGGESTING THAT [DEFENDANT] TAILORED HIS TESTIMONY TO THE STATE'S EVIDENCE VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL, TO CONFRONT WITNESSES, TO PRESENT WITNESSES AND EVIDENCE IN HIS DEFENSE, AND TO A FAIR TRIAL. (Not Raised Below).

We affirmed defendant's conviction, but remanded the matter

to the trial court for resentencing pursuant to State v. Natale,

184 N.J. 458 (2005). State v. Harrell, No. A-1090-04 (App. Div.

Nov. 2, 2006) (slip op. at 19). The Supreme Court denied

defendant's petition for certification. State v. Harrell, 192 N.J.

480 (2007).

In our opinion on defendant's direct appeal, we noted that

defendant's conviction arose from a confrontation between a group

of Hispanic males and a group of black males during the early

morning hours of August 24, 2003. Harrell, No. A-1090-04 (slip op.

at 9-12). During that confrontation, defendant shot a weapon six

times and killed a bystander, Juan Gomez. Id. at 3.

3 A-0369-16T1 On remand, the trial court reconsidered defendant's sentence.

The court filed an amended judgment of conviction dated February

1, 2008, stating that a different sentence was not warranted.

On November 7, 2007, defendant filed a pro se petition for

post-conviction relief (PCR). Defendant claimed his trial attorney

was ineffective because counsel did not challenge the prosecutor's

comments in summation and seek a curative instruction. The PCR

court assigned counsel for defendant, and in a supplemental brief,

PCR counsel raised additional issues of trial counsel's

ineffectiveness, specifically, the failure to call certain

witnesses and to file a motion to exclude a knife and tie rod due

to a lack of scientific evidence. The PCR court denied the

application and later denied defendant's pro se motion for

reconsideration.

Defendant appealed and argued PCR counsel was ineffective

because counsel had not pursued claims defendant raised in his pro

se petition. According to defendant, PCR counsel advanced a

meritless claim and poorly articulated other claims. We affirmed

the denial of PCR and the denial of defendant's motion for

reconsideration. State v. Harrell, No. A-0340-08 (App. Div. Nov.

15, 2010) (slip op. at 8). The Supreme Court denied defendant's

petition for certification. State v. Harrell, 205 N.J. 318 (2011).

4 A-0369-16T1 II.

On October 14, 2011, defendant filed a second PCR petition.

He alleged trial counsel was ineffective because counsel failed

to review discovery, investigate, and interview certain witnesses.

He also alleged he was denied the effective assistance of PCR

counsel and PCR appellate counsel. Defendant asserted, among other

things, that PCR appellate counsel failed to argue on appeal

defendant's claims of ineffective assistance of trial counsel.

The PCR court denied all relief. In a letter opinion dated

June 8, 2012, the court found that all of defendant's claims were

barred under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Defendant

appealed from the order denying PCR. We held defendant's claims

regarding PCR appellate counsel were not procedurally barred, and

we remanded for further proceedings on those claims. State v.

Harrell, No. A-5933-11 (App. Div. Dec. 9, 2013) (slip op. at 10).

We also directed the PCR court to reconsider defendant's request

for assignment of counsel. Ibid.

On remand, the PCR court assigned counsel to represent

defendant. On May 10, 2016, the court placed an oral decision on

the record. The court determined that Rule 3:22-5 barred

defendant's claim that trial counsel was ineffective for failing

to contact and interview eyewitnesses to the incident and secure

their attendance at trial. The court also determined that Rule

5 A-0369-16T1 3:22-5 barred defendant's claims that PCR counsel and PCR appellate

counsel were ineffective for failing to contact the aforementioned

witnesses.

The court further determined that Rule 3:22-5 did not bar

defendant's claim that he had been denied the effective assistance

of PCR appellate counsel. The court found, however, that defendant

did not present a prima facie case of ineffective assistance of

PCR appellate counsel, and decided that an evidentiary hearing was

not required. The court entered an order dated May 10, 2016,

denying defendant's second petition for PCR. This appeal followed.

On appeal, defendant's PCR appellate counsel raises the

following points:

[POINT I] THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DEFENDANT'S ATTORNEYS HAD A STRATEGIC REASON FOR NOT USING THE WITNESS STATEMENTS IN DEFENDING HIM.

[POINT II] THE DEFENDANT INCORPORATES IN SUMMARY FASHION THE ARGUMENTS BELOW.

In his supplemental pro se brief, defendant raises the

following arguments:

POINT I THIS COURT SHOULD EXERCISE ITS ORIGINAL JURISDICTION PURSUANT TO [RULE] 2:10-5 AND REVIEW THIS MATTER DE NOVO IN AN EFFORT TO BRING IT TO A CLOSE DUE TO ITS PROTRACTED HISTORY.

6 A-0369-16T1 POINT II DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL[] WHEN "APPELLATE PCR COUNSEL" FAILED TO RAISE ON APPEAL "TRIAL COUNSEL'S" INEFFECTIVENESS AND FAILED TO PROPERLY ARGUE "PCR COUNSEL'S" INEFFECTIVENESS [AND] THE PCR II COURT ERRED IN FINDING "THERE'S NO REASONABLE PROBABILITY THAT APPELLATE [PCR] COUNSEL'S MISSING ARGUMENTS WOULD HAVE INFLUENCED THE APPELLATE DIVISION'S DECISION."

POINT III THIS COURT SHOULD EXTEND THE REQUIREMENTS OF COURT [RULE] 3:22-6(d), RUE AND WEBSTER TO APPLY TO "APPELLATE PCR COUNSEL" OR MODIFY and/or ADD LANGUAGE TO REQUIRE "APPELLATE PCR COUNSEL" TO APPROPRIATELY RAISE ALL ISSUES PRESENTED IN THE COURT BELOW FOR EXHAUSTION PURPOSES; THE PCR II COURT ERRED IN REFUSING TO EXTEND THE PRINCIPLES OF [RUE] AND [WEBSTER]; [RULE] 3:22-6(D), OR A VARIATION OF THE SAME TO APPLY TO APPELLATE PCR COUNSEL; AND ERRED IN FINDING THAT APPELLATE PCR COUNSEL CAN "WINNOW OUT WEAKER ARGUMENTS ON APPEAL["] AND FOCUS ON ONE CENTRAL ISSUE OR AT MOST A FEW KEY ISSUES.

POINT IV PCR II COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ONLY VIABLE ISSUES TO THE PCR II COURT AND VIOLATED [RULE] 3:22-1(D). (Not Raised Below).

III.

We turn first to defendant's contention that on remand, the

PCR court erred by failing to conduct an evidentiary hearing on

his petition.

A defendant is entitled to an evidentiary hearing on a PCR

petition if the defendant presents a prima facie case in support

7 A-0369-16T1 of 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)).

To establish ineffective assistance of counsel, a defendant

must satisfy the two-prong test established in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland,

the defendant must first show that "counsel's performance was

deficient." 466 U.S. at 687. The defendant must establish that

"counsel made errors so serious that counsel was not functioning

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

Ibid.

The defendant also must show that counsel's "deficient

performance prejudiced the defense." Id. at 687. The defendant is

required to establish that "counsel's errors were so serious as

to deprive [him or her] of a fair trial, a trial whose result is

reliable." Ibid. The defendant must establish a reasonable

probability that but for counsel's unprofessional errors, the

result of the proceeding would have been different. Id. at 694. A

8 A-0369-16T1 reasonable probability is a "probability sufficient to undermine

confidence in the outcome." Ibid.

Here, defendant argues that his trial attorney was

ineffective because he failed to interview certain witnesses who

provided statements regarding the shooting to detectives in the

Middlesex County Prosecutor's Office (MCPO). Defendant contends

he was denied the effective assistance of PCR appellate counsel

because in the appeal from the denial of his first petition for

PCR, appellate counsel did not raise and effectively argue this

issue.

We note that defendant testified at trial that in the early

morning hours of August 24, 2003, his friend Brian Weeks was

arguing with Mario Caprio on a street in New Brunswick, and they

were surrounded by a group of Hispanic males and a group of black

males. Defendant pulled up to the scene in his truck and he

observed the crowd surrounding Weeks. Weeks told defendant to get

a gun he had previously given to Tryshon Stokes. Defendant said

he retrieved the gun "to make everyone get away from the area and

that was it."

Defendant returned to the scene and exited his truck.

According to defendant, Weeks was surrounded by "a bunch of

people." A person who "had" Weeks would not move, so defendant

fired the gun downwards in front of that individual. Defendant

9 A-0369-16T1 stated he did not try to shoot or kill anyone. He said he did not

aim the gun specifically at any person, and the person whom he

shot "was all the way down the street." Defendant testified that

"there was no way I intended to shoot this guy."

Defendant further testified that Weeks grabbed his arm and

that was what "made [him] shoot to the left." He stated he did not

know if Weeks "saw the situation like [he] saw it or he wanted me

to stop shooting, but when I fired the gun that's when [Weeks]

grabbed my arm or tried to take the gun from me or whatever he was

trying to do."

On cross-examination, defendant stated that he fired the

first shot in the air and there was no reaction from the group.

He fired another shot into the air and the crowd did not respond

to that shot. Defendant said he then dropped his arm and fired

straight ahead in the direction of the group of people who were

surrounding Weeks. Defendant stated that at this point,

"[e]veryone started to run around."

Defendant testified that Weeks was no longer surrounded. He

admitted, however, that he fired two more shots. He stated that

Weeks grabbed his arm and pulled his arm down, but he conceded

that he pulled the trigger two more times. Defendant said that he

did not intentionally shoot Gomez.

10 A-0369-16T1 On re-direct, defendant again insisted that he accidentally

shot Gomez. He stated that after Weeks grabbed his arm, two more

rounds went off, but he did not know Weeks was going to grab his

arm. He claimed Weeks exerted force upon his arm.

Earlier in the trial, Weeks had testified for the prosecution.

Weeks stated that during the melee, he saw defendant arrive on the

scene in his car, pull out a gun, and start shooting in his

direction. Weeks testified that he heard "like eight shots" and

ran. During cross-examination, Weeks was asked if he grabbed

defendant's arm or saw anyone grabbing defendant while the gun was

going off. Weeks replied, "No."

On appeal, defendant argues that his trial attorney was

ineffective because he failed to interview certain witnesses who

purportedly would have corroborated his statement that Weeks

grabbed his arm, causing him to aim the weapon in the direction

of the victim. In support of this argument, defendant submitted

statements that several witnesses provided to detectives in the

MCPO.1

In his statement, J.G. said he was a witness to the shooting.

J.G. stated that "one of the guys" on the scene started shooting,

and that person was shooting at Carpio. The victim was hit when

1 We use initials to identify the witnesses.

11 A-0369-16T1 he was running from the scene. J.G. said, "then . . . the guy just

spinned him around where I was like his back shooting."

L.J. told the detectives that on the night of the incident,

he was with Weeks and others in defendant's vehicle. Defendant

parked the vehicle and they got out. They saw Weeks and others

arguing. L.J. said there was "so much commotion" and then he heard

shots. He saw defendant firing the gun into the crowd. He stated,

"I seen the dude grab his arm." He identified the "dude" as "the

Spanish kid."

J.M. stated that he was with defendant on the night of the

incident. They went to several clubs, and later came upon a crowd

of people on George Street. J.M. stated that he saw Weeks and the

"dude that got shot." J.M., defendant and others got out of

defendant's vehicle and observed a crowd. He saw defendant firing

a gun. J.M. said defendant "was going wild" with the gun. He saw

defendant shoot the gun, but he did not see defendant shoot the

victim. After the shooting, J.M. got back into the vehicle with

defendant, and they drove off.

J.S. told the detectives he saw a vehicle drive up and four

persons get out. J.S. said Carpio was talking in the street with

a male who could have been black or Hispanic. J.S. saw the person

12 A-0369-16T1 shooting at a person named "Joell."2 He was "shooting, bang, bang."

J.S. recalled five shots directed "straight at Joell." The shooter

told the person who was arguing with Carpio, "let's go, let's go."

The shooter then got into the vehicle.

Notwithstanding defendant's arguments to the contrary, we are

convinced defendant failed to show he was denied the effective

assistance of counsel because his trial attorney did not interview

or present any of these witnesses at trial. Defendant asserts

these witnesses would have corroborated his testimony that Weeks

grabbed his arm, causing him to direct a shot at the victim.

However, as we stated previously, Weeks testified at trial

that he did not grab defendant's arm during the shooting. Although

defendant testified to the contrary, the additional witnesses

defendant has identified would not have directly corroborated

defendant's testimony. As noted, J.G. stated he saw someone spin

defendant around, but he did not indicate when this occurred or

whether it had any effect upon the direction in which defendant

was shooting. In addition, L.J. said he saw someone grab

defendant's arm, but he did not state when this occurred or that

it caused defendant to aim his shot at the victim.

2 The record shows that a person named "Joel" was involved in the fracas; however, he was not the victim.

13 A-0369-16T1 Furthermore, J.G.'s and L.J.'s statements indicate that it

may have been strategically disadvantageous to elicit trial

testimony from them. J.G. stated that he saw defendant shooting

directly at Carpio, and L.J. said he saw defendant shooting into

the crowd. In addition, J.M. stated that defendant "was going

wild" with the gun, and J.S. said defendant was directing his

shots directly at a person named "Joell."

In any event, none of these additional witnesses would have

provided significant support to the defense. Here, defendant was

charged with murder under N.J.S.A. 2C:11-3(a)(1) and (2), and the

trial judge also instructed the jury on aggravated manslaughter

and reckless manslaughter, as lesser-included offenses. As stated,

the jury found defendant guilty of aggravated manslaughter.

Criminal homicide constitutes aggravated manslaughter when

the defendant "causes death under circumstances manifesting

extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). On

the other hand, reckless manslaughter can be found when the

defendant causes the death of another person by acting

"recklessly." N.J.S.A. 2C:11-4(b)(1). "The distinction between the

two crimes turns on the degree of probability that death will

result from the defendant's conduct." State v. Galicia, 210 N.J.

364, 378 (2012).

14 A-0369-16T1 A person may be found guilty of aggravated manslaughter if

"it is probable that death will result" from defendant's conduct.

Ibid. (citing State v. Simon, 161 N.J. 416, 507 (1999)). However,

homicide constitutes reckless manslaughter "when it is only

possible that death will result. Ibid. (citing State v. Curtis,

195 N.J. Super. 354, 364 (App. Div. 1984)).

In this case, the PCR judge noted that defendant was the only

individual who fired a gun, and he fired the gun six times into

the crowd. The judge correctly observed that even if the jury

believed Weeks grabbed defendant while defendant was firing the

gun, thereby causing him to shoot in an unintended fashion, this

did not preclude the jury from finding, based on the totality of

the circumstances, that defendant acted with extreme indifference

to human life.

Moreover, testimony from the additional witnesses consistent

with the statements they provided to the MCPO would not have

precluded the jury from finding that when defendant shot the gun

six times into the crowd, the death of some person was probable

rather than merely possible. Thus, even if counsel erred by failing

to interview and present testimony from the additional witnesses,

defendant failed to show that it was reasonably probable the jury

would have found him not guilty of any offense related to Gomez's

15 A-0369-16T1 death, or not guilty of aggravated manslaughter and guilty of

reckless manslaughter.

Therefore, defendant failed to establish he was denied the

effective assistance of trial counsel. For essentially these same

reasons, defendant did not present a prima facie case of

ineffective assistance of PCR counsel or PCR appellate counsel.

The PCR court correctly determined that an evidentiary hearing was

not required on defendant's second PCR petition. Porter, 216 N.J.

at 354 (citing R. 3:22-10(b)).

We have considered the other arguments presented in

defendant's counseled brief, and the arguments defendant has

presented in his pro se supplemental brief. We are convinced all

of these arguments lack sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(2).

Affirmed.

16 A-0369-16T1