Opinion
DOCKET NO. A-5164-11T1
03-27-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAROD HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1829.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jarod Harris appeals from a March 15, 2012 Law Division order denying his petition for post-conviction relief (PCR) and his request for an evidential hearing. On appeal, defendant presents these issues for review:
POINT IFollowing our consideration of these arguments in light of the record and applicable law, we affirm.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVENESS DUE TO TRIAL COUNSEL'S FAILURE TO CONDUCT AN ADEQUATE INVESTIGATION, WHICH INCLUDED HIS NOT PURSUING A PROSPECTIVE ALIBI WITNESS.
POINT II
THIS MATTER MUST BE REMANDED BECAUSE PCR COUNSEL FAILED TO INVESTIGATE AND/OR TO ADEQUATELY ADVANCE ALL OF DEFENDANT'S CLAIMS.
Defendant was convicted of a murder charge arising from the January 20, 2003 slaying of his former friend, Andre Simmons. Defendant committed the killing because he believed Simmons was involved in the murder of defendant's brother. Additionally, the jury convicted defendant of weapons offenses. After merger of one of the weapon convictions, he was sentenced to an aggregate forty-eight years in prison, subject to the 85% parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we affirmed defendant's conviction and sentence for murder; however, we remanded for resentencing on the unmerged weapon conviction. State v. Harris, A-5196-05 (App. Div. Nov. 30, 2009) (slip op. at 29). Certification was denied. State v. Harris, 201 N.J. 274 (2010).
Defendant filed his PCR petition asserting trial and appellate counsel provided ineffective assistance and arguing no bars precluded his requests for relief. Appointed counsel filed an amended petition which lists supplemental claims for relief and requests an evidentiary hearing. The amended PCR petition was supported by a brief and defendant's certification explaining the claims warranting a new trial. Following oral argument, during which defendant was permitted to directly address the court and submit his self-prepared memorandum presenting additional argument, Judge Peter V. Ryan reserved his determination.
Judge Ryan issued a fourteen-page written opinion rejecting defendant's arguments and denying his petition for PCR. We have reviewed the opinion and conclude Judge Ryan thoroughly reviewed the trial record and thoughtfully considered each claim presented by defendant. Confining our review to the issues raised on appeal, we note the judge found defendant's alibi assertions were "self-serving," "speculative," and unsupported by the identified alibi witness. The record contained no information from defendant's brother, who defendant suggested could vouch for his whereabouts the evening the victim was murdered. Consequently, there was no proffer of the alibi witness's testimony.
To determine whether a defendant has established a prima facie claim of ineffective assistance, New Jersey follows the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), under which
[a] reviewing court first must determine whether counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698."The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
[State v. Chew, 179 N.J. 186, 203 (2004).]
Generally, an ineffective assistance of counsel claim "'cannot be raised on direct appeal[,]'" because a hearing must be held to develop a record whereby trial counsel may "'explain the reasons for his [or her] conduct and inaction[,]'" and a trial judge is afforded the opportunity to rule on the claims and assess the likely prejudice. State v. Preciose, 129 N.J. 451, 462 (1992) (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)). See also State v. McDonald, 211 N.J. 4, 30 (2012) (holding that a PCR "proceeding would be the appropriate forum to evaluate the strategy of defendant's trial counsel . . . and other issues requiring information that is not in the record before the Court").
Following our review, we concur with Judge Ryan's opinion and reject defendant's assertion he was entitled to present his claims of ineffective assistance by trial counsel in an evidentiary hearing. "[A] petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). See also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). An evidentiary hearing is only necessary when a defendant's PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing to assess a defendant's allegations, which "are too vague, conclusory, or speculative . . . . " State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
We also reject as meritless defendant's contention PCR counsel was ineffective because he failed to advance all of defendant's claims, by omitting a challenge to the identification testimony of a State's eyewitness, Betty Rollins. Defendant maintains he offered "newly discovered evidence," that is, Rollins's contradictory testimony during her television appearance on the Judge Mathis show, made "several years after trial[,]" when she stated she "held the victim in her arms and watched him die." Although this account is more dramatic than her trial testimony, it is not inconsistent and certainly does not constitute newly discovered exculpatory evidence.
We first note, in his review of the PCR arguments, Judge Ryan references defendant's challenge to Rollins's identification. He specifically lists defendant's allegation that PCR counsel was ineffective for failing to secure the Judge Mathis show video of Rollins's appearance.
At trial, Rollins described her observations. She knew defendant and the victim for years as they grew up in the neighborhood. She saw defendant and the victim talking before the shooting. Once in her apartment, directly across the street from the shooting, she saw defendant attack the victim from behind as he walked away. She also described hearing seven shots, seeing defendant holding a gun, and watching defendant run from the scene. She went outside across the street to check on the victim. She stayed with him until police arrived, noting, as "he was laying there, . . . [she] bent down to look at him[.]" Rollins testified she thought "he was taking his last breaths[.]"
Defendant's cross-examination challenged Rollins's credibility and sought to cast doubt on her recollection of the events. The jury assessed these factors and reasonably relied on Rollins's unequivocal direct and cross-examination testimony identifying defendant and the victim and describing the events she observed. The television characterization of Rollins's conduct after the shooting to comfort the victim as he lay dying is immaterial to the proofs presented in support of defendant's guilt.
Therefore, we determine no basis to disturb Judge Ryan's legal conclusions, squarely grounded upon clearly delineated factual findings. See Nash, supra, 212 N.J. at 540 ("[W]e will uphold the PCR court's findings that are supported by sufficient credible evidence in the record."). Also, we find unavailing the claims challenging PCR counsel's performance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION