NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5830-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN D. HARRIS, a/k/a TWIZ TWITTER,
Defendant-Appellant. ________________________
Submitted September 17, 2019 – Decided October 8, 2019
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12- 2438.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica Lucinda do Outeiro, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Sean D. Harris appeals from an order entered by the Law
Division on June 29, 2018, which denied his petition for post-conviction relief
(PCR).
In December 2009, a Monmouth County grand jury returned Indictment
No. 09-12-2438, charging defendant and Phillip Wylie with first-degree murder
of Andre Williams, contrary to N.J.S.A. 2C:11-3(a)(1). Defendant was later
tried before a jury. The trial began on October 12, 2011, and concluded on
January 6, 2012. The jury found defendant guilty of first-degree murder.
Thereafter, the court denied defendant's motion for a new trial and granted
the State's motion for an extended term. The court sentenced defendant to forty-
five years in State prison, with a thirty-five-year period of parole ineligibility,
and imposed appropriate penalties and assessments. The court entered a
judgment of conviction dated April 20, 2012.
Defendant appealed and raised the following arguments:
POINT I THE PROSECUTOR'S COMMENTS IN SUMMATION SO FAR EXCEEDED THE BOUNDS OF PROPRIETY THAT A MISTRIAL SHOULD HAVE BEEN GRANTED.
A-5830-17T4 2 POINT II THE ENTIRE TESTIMONY OF ALPHONSO EDWARDS, SR. CONSTITUTED INADMISSIBLE HEARSAY AND SHOULD HAVE BEEN DISALLOWED. (NOT RAISED BELOW).
POINT III THE PROSECUTOR IMPROPERLY QUESTIONED A COOPERATING WITNESS ABOUT HIS FEAR OF THE DEFENDANT, THUS INTERJECTING THAT THE DEFENDANT HAD BAD CHARACTER AND A PROPENSITY FOR VIOLENCE.
POINT IV THE PROSECUTOR USED THE "TRUTHFUL TESTIMONY" REQUIREMENT OF THE PLEA BARGAIN TO BOLSTER THE CO-DEFENDANT'S CREDIBILITY; THE CONDUCT CONSTITUTED IMPERMISSIBLE "VOUCHING." (NOT RAISED BELOW).
POINT V THE COURT DOUBLE COUNTED THE DEFENDANT'S PRIOR RECORD AND RELIED UPON IMPROPER CRITERIA IN DETERMINING THE DEFENDANT'S SENTENCE OF 45 YEARS, 35 YEAR TO BE SERVED BEFORE PAROLE.
We rejected defendant's arguments and affirmed his conviction and
sentence. State v. Harris, No. A-6339-11 (App. Div. Aug. 27, 2015).
Thereafter, the Supreme Court denied defendant's petition for certification.
State v. Harris, 224 N.J. 123 (2016).
A-5830-17T4 3 In our opinion, we noted that the testimony at trial established that on the
evening of June 7, 1997, Williams left an apartment in Asbury Park that he
shared with his girlfriend, T.C. Harris, slip op. at 2. They planned to meet later
at a concert, but Williams did not arrive and never returned to the apartment.
Ibid. His badly decomposed body was found on June 12, 1997 in a park in
Neptune Township. Ibid. The initial investigation was not fruitful, and it was
closed administratively. Ibid.
Eventually, the Monmouth County Prosecutor's Office identified six
suspects: defendant, Alphonso Edwards, Jr., Darren Sims, Cedric Smith, Jason
Turner, Antonio Grant, and Wylie. Id. at 3. At the time of the murder, Turner
was sixteen years old, Grant was eighteen, Edwards was nineteen, Sims was
twenty-one, Wylie was twenty-three, Smith was twenty-five, and defendant was
twenty-four. Ibid.
Edwards, Sims, Smith, Grant, and Wylie later pled guilty to aggravated
manslaughter, and Turner pled guilty to reckless manslaughter. Id. at 8. The
plea agreements required that they give truthful testimony, and they testified at
defendant's trial. Id. at 4, 8. Each had a substantial criminal record. Id. at 8.
Moreover, Edwards, Grant, Sims, and Turner were serving sentences on
unrelated charges at the time of trial. Ibid. In our opinion, we noted that while
A-5830-17T4 4 there were some inconsistencies in the accounts of these witnesses, "their
testimony corroborated each other in the salient facts: that they tortured and
killed Williams with defendant and followed his directions." Id. at 4.
On February 25, 2016, defendant filed a pro se petition for PCR. The
court assigned counsel to represent defendant, and counsel thereafter filed an
amended verified petition. Defendant alleged: (1) he was denied the effective
assistance of counsel because his attorney failed to investigate the case
adequately, and because his attorney did not object to the prosecutor's
"vouching" for the cooperating co-defendants; (2) the trial court erred by failing
to address the prosecutor's "misconduct" during summation; (3) his conviction
was against the weight of the evidence; (4) the verdict sheet was "defective" and
precluded the jury from returning a verdict on viable lesser-included offenses;
and (5) he was denied the effective assistance of appellate counsel.
On June 27, 2018, Judge Vincent N. Falcetano, Jr., heard oral arguments,
and on June 29, 2018, filed a written opinion in which he concluded that
defendant had not presented a prima facie case of ineffective assistance of
counsel or any meritorious claim. The judge decided that defendant was not
entitled to an evidentiary hearing on his petition. The judge entered an order
dated June 29, 2018, denying PCR. This appeal followed.
A-5830-17T4 5 On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO A LACK OF INVESTIGATION.
We are convinced from our review of the record that defendant's
arguments are entirely without merit. We affirm the order denying PCR
substantially for the reasons stated by Judge Falcetano in his thorough and well -
reasoned opinion. We add the following.
As noted, defendant argues that the PCR court erred by failing to conduct
an evidentiary hearing on his petition. However, an evidentiary hearing is only
required if the defendant presents a prima facie case in support of the petition,
the court has determined that there are material issues of fact that cannot be
resolved based on the existing record, and an evidentiary hearing is required to
resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing
R. 3:22-10(b)).
Here, defendant argues that he presented a prima facie case of ineffective
assistance of counsel, which warranted an evidentiary hearing. To establish
ineffective assistance of counsel, a defendant must satisfy the two-part test
A-5830-17T4 6 established in Strickland v. Washington, 466 U.S. 668, 693 (1984), and later
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Free access — add to your briefcase to read the full text and ask questions with AI
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-5830-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN D. HARRIS, a/k/a TWIZ TWITTER,
Defendant-Appellant. ________________________
Submitted September 17, 2019 – Decided October 8, 2019
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12- 2438.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica Lucinda do Outeiro, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Sean D. Harris appeals from an order entered by the Law
Division on June 29, 2018, which denied his petition for post-conviction relief
(PCR).
In December 2009, a Monmouth County grand jury returned Indictment
No. 09-12-2438, charging defendant and Phillip Wylie with first-degree murder
of Andre Williams, contrary to N.J.S.A. 2C:11-3(a)(1). Defendant was later
tried before a jury. The trial began on October 12, 2011, and concluded on
January 6, 2012. The jury found defendant guilty of first-degree murder.
Thereafter, the court denied defendant's motion for a new trial and granted
the State's motion for an extended term. The court sentenced defendant to forty-
five years in State prison, with a thirty-five-year period of parole ineligibility,
and imposed appropriate penalties and assessments. The court entered a
judgment of conviction dated April 20, 2012.
Defendant appealed and raised the following arguments:
POINT I THE PROSECUTOR'S COMMENTS IN SUMMATION SO FAR EXCEEDED THE BOUNDS OF PROPRIETY THAT A MISTRIAL SHOULD HAVE BEEN GRANTED.
A-5830-17T4 2 POINT II THE ENTIRE TESTIMONY OF ALPHONSO EDWARDS, SR. CONSTITUTED INADMISSIBLE HEARSAY AND SHOULD HAVE BEEN DISALLOWED. (NOT RAISED BELOW).
POINT III THE PROSECUTOR IMPROPERLY QUESTIONED A COOPERATING WITNESS ABOUT HIS FEAR OF THE DEFENDANT, THUS INTERJECTING THAT THE DEFENDANT HAD BAD CHARACTER AND A PROPENSITY FOR VIOLENCE.
POINT IV THE PROSECUTOR USED THE "TRUTHFUL TESTIMONY" REQUIREMENT OF THE PLEA BARGAIN TO BOLSTER THE CO-DEFENDANT'S CREDIBILITY; THE CONDUCT CONSTITUTED IMPERMISSIBLE "VOUCHING." (NOT RAISED BELOW).
POINT V THE COURT DOUBLE COUNTED THE DEFENDANT'S PRIOR RECORD AND RELIED UPON IMPROPER CRITERIA IN DETERMINING THE DEFENDANT'S SENTENCE OF 45 YEARS, 35 YEAR TO BE SERVED BEFORE PAROLE.
We rejected defendant's arguments and affirmed his conviction and
sentence. State v. Harris, No. A-6339-11 (App. Div. Aug. 27, 2015).
Thereafter, the Supreme Court denied defendant's petition for certification.
State v. Harris, 224 N.J. 123 (2016).
A-5830-17T4 3 In our opinion, we noted that the testimony at trial established that on the
evening of June 7, 1997, Williams left an apartment in Asbury Park that he
shared with his girlfriend, T.C. Harris, slip op. at 2. They planned to meet later
at a concert, but Williams did not arrive and never returned to the apartment.
Ibid. His badly decomposed body was found on June 12, 1997 in a park in
Neptune Township. Ibid. The initial investigation was not fruitful, and it was
closed administratively. Ibid.
Eventually, the Monmouth County Prosecutor's Office identified six
suspects: defendant, Alphonso Edwards, Jr., Darren Sims, Cedric Smith, Jason
Turner, Antonio Grant, and Wylie. Id. at 3. At the time of the murder, Turner
was sixteen years old, Grant was eighteen, Edwards was nineteen, Sims was
twenty-one, Wylie was twenty-three, Smith was twenty-five, and defendant was
twenty-four. Ibid.
Edwards, Sims, Smith, Grant, and Wylie later pled guilty to aggravated
manslaughter, and Turner pled guilty to reckless manslaughter. Id. at 8. The
plea agreements required that they give truthful testimony, and they testified at
defendant's trial. Id. at 4, 8. Each had a substantial criminal record. Id. at 8.
Moreover, Edwards, Grant, Sims, and Turner were serving sentences on
unrelated charges at the time of trial. Ibid. In our opinion, we noted that while
A-5830-17T4 4 there were some inconsistencies in the accounts of these witnesses, "their
testimony corroborated each other in the salient facts: that they tortured and
killed Williams with defendant and followed his directions." Id. at 4.
On February 25, 2016, defendant filed a pro se petition for PCR. The
court assigned counsel to represent defendant, and counsel thereafter filed an
amended verified petition. Defendant alleged: (1) he was denied the effective
assistance of counsel because his attorney failed to investigate the case
adequately, and because his attorney did not object to the prosecutor's
"vouching" for the cooperating co-defendants; (2) the trial court erred by failing
to address the prosecutor's "misconduct" during summation; (3) his conviction
was against the weight of the evidence; (4) the verdict sheet was "defective" and
precluded the jury from returning a verdict on viable lesser-included offenses;
and (5) he was denied the effective assistance of appellate counsel.
On June 27, 2018, Judge Vincent N. Falcetano, Jr., heard oral arguments,
and on June 29, 2018, filed a written opinion in which he concluded that
defendant had not presented a prima facie case of ineffective assistance of
counsel or any meritorious claim. The judge decided that defendant was not
entitled to an evidentiary hearing on his petition. The judge entered an order
dated June 29, 2018, denying PCR. This appeal followed.
A-5830-17T4 5 On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO A LACK OF INVESTIGATION.
We are convinced from our review of the record that defendant's
arguments are entirely without merit. We affirm the order denying PCR
substantially for the reasons stated by Judge Falcetano in his thorough and well -
reasoned opinion. We add the following.
As noted, defendant argues that the PCR court erred by failing to conduct
an evidentiary hearing on his petition. However, an evidentiary hearing is only
required if the defendant presents a prima facie case in support of the petition,
the court has determined that there are material issues of fact that cannot be
resolved based on the existing record, and an evidentiary hearing is required to
resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing
R. 3:22-10(b)).
Here, defendant argues that he presented a prima facie case of ineffective
assistance of counsel, which warranted an evidentiary hearing. To establish
ineffective assistance of counsel, a defendant must satisfy the two-part test
A-5830-17T4 6 established in Strickland v. Washington, 466 U.S. 668, 693 (1984), and later
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the test, a defendant first "must show that counsel's performance
was deficient." Strickland, 466 U.S. at 693. Defendant must establish that
counsel'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." Ibid.
Defendant also must establish "that the deficient performance prejudiced
the defense." Ibid. To establish prejudice, "[t]he defendant must show that 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 698.
Defendant claims his trial counsel failed to conduct an adequate
investigation of his case. He states that he retained a new attorney while the
case was pending, and his new attorney was "rushed" into trial with only several
weeks to prepare. He claims his attorney erred by failing to seek an adjournment
that would have provided more time in which to prepare for trial.
A-5830-17T4 7 In his opinion, Judge Falcetano observed that when a defendant alleges
trial counsel was ineffective because counsel failed to adequately investigate his
case, the defendant "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, 216
N.J. at 353 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999)).
Judge Falcetano found that defendant failed to present any credible
evidence to support his claim. The judge noted that at trial, defense counsel
advanced a theory that the case against defendant had been "fixed," and that in
his PCR petition, defendant had claimed his trial counsel failed to present any
evidence to support that theory. The judge noted, however, that defense counsel
had skillfully cross-examined David Gamble, a forensic detective who
processed the victim's clothing and testified for the State.
The judge pointed out that Gamble had stated on direct examination that
there was a burn mark on the victim's clothes, but during cross-examination,
defense counsel "brought to light the fact that what the forensic detective
testified was a burn mark, was actually a clump of hair that the detective had
A-5830-17T4 8 missed." The judge found that this cross-examination "fit squarely into trial
counsel's theory that the case against defendant had been 'fixed.'"
The judge also pointed out that defendant's trial attorney sought an
adjournment of the trial. The court had postponed the trial for several weeks
and informed counsel that he could make further applications for an adjournment
if the need arose. In addition, at a pre-trial conference held one week before
trial, trial counsel told the court that more time was needed to prepare the case
effectively, but he was prepared to proceed. The court indicated that due to the
anticipated length of the trial, there would be at least one substantial recess
during the trial, and that counsel could make further adjournment requests if
needed.
Here, defendant has not shown that he was prejudiced by the alleged lack
of time to investigate or prepare for trial. He did not present the PCR court with
an affidavit or certification, based on personal knowledge, setting forth the facts
or evidence a further investigation would have revealed. Thus, the record
supports the PCR court's conclusion that defendant failed to present a prima
facie case of ineffective assistance of counsel. The PCR court correctly
determined that defendant was not entitled to an evidentiary hearing.
Affirmed.
A-5830-17T4 9