STATE OF NEW JERSEY VS. THEODORE G. HARRIS(06-11-2591, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4230-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THEODORE G. HARRIS,

Defendant-Appellant.
______________________________

Submitted March 7, 2017 – Decided July 3, 2017

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
06-11-2591.

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

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendant Theodore G. Harris appeals from a February 6, 2015

order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. A jury convicted defendant for

the "shooting death of his live-in girlfriend's son, Duwuan Potter,

and the non-fatal shootings of the girlfriend, Dawn Potter, and

an innocent bystander, George Williams[,]" and pointing a firearm

at a law enforcement officer, Lorenzo Pettway. State v. Harris,

No. A-5809-08, (App. Div. July 31, 2012) (slip op. at 1), certif.

denied, 213 N.J. 397 (2013). He is serving a custodial term of

sixty years with fifty-three years of parole ineligibility. He

alleges ineffective assistance of trial and appellate counsel. We

affirm.

In our opinion on direct appeal, we related in detail the

facts underlying defendant's convictions. State v. Harris, supra,

slip op. at 2-5. We need not repeat them here.

On direct appeal, defendant raised the following points:

POINT I: THE PROSECUTOR'S CROSS-EXAMINATION
AND COMMENTS REGARDING DEFENDANT'S DELAY IN
CLAIMING SELF-DEFENSE WAS GROSSLY IMPROPER AND
DENIED DEFENDANT A FAIR TRIAL.

POINT II: IT WAS ERROR FOR THE COURT TO REFUSE
TO PERMIT ADMISSION OF CERTAIN STATEMENTS MADE
BY DEFENDANT TO THE POLICE FOLLOWING HIS
ARREST.

POINT III: SINCE NEITHER DEFENDANT NOR THE CO-
OCCUPANT OF THE MOTEL ROOM WERE PROPERLY
INFORMED OF THEIR RIGHT TO REFUSE TO CONSENT
TO A SEARCH THE MOTION TO SUPPRESS SHOULD HAVE
BEEN GRANTED.

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 POINT IV: THE TESTIMONY OF SGT. MEANY THAT
DEFENDANT WAS NOT REMORSEFUL WAS IMPROPER
EVIDENCE THAT DEPRIVED DEFENDANT [OF] A FAIR
TRIAL. (Not Raised Below.)

POINT V: CERTAIN CONDUCT AND STATEMENTS BY THE
PROSECUTOR CONSTITUTED PROSECUTORIAL
MISCONDUCT WHICH DENIED DEFENDANT A FAIR
TRIAL.

POINT VI: THE DEFENDANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO A FAIR TRIAL AND HIS
FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS BY
THE TRIAL COURT'S PRECLUDING THE ADMISSION OF
CERTAIN EVIDENCE.

POINT VII: THE ADMISSION OF THE VHS TAPE AND
TRANSCRIPT OF DEFENDANT'S STATEMENT TO THE
POLICE IN THE STATE'S REBUTTAL CASE WAS ERROR.

POINT VIII: THE AGGREGATE SENTENCE
IMPOSED UPON DEFENDANT OF 60 YEARS WITH 30
YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE
AND SHOULD BE MODIFIED AND REDUCED. (Not
Raised Below.)

POINT IX: THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL. (Not Raised Below.)

We affirmed, remanding only for resentencing.

Defendant raises the following issues in his PCR appeal:

POINT ONE: THE PCR COURT FAILED TO ADDRESS THE
DEFENDANT'S ARGUMENT THAT HIS TRIAL ATTORNEY
ERRED WHERE SHE DID NOT OBJECT TO THE
PROSECUTOR'S IMPROPER COMMENTS DURING
SUMMATION.

POINT TWO: THE DEFENDANT SET FORTH A PRIMA
FACIE CASE THAT HIS TRIAL ATTORNEY WAS
INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL
COURT'S JURY INSTRUCTION REGARDING SELF-
DEFENSE.

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 POINT THREE: THE DEFENDANT INCORPORATES HEREIN
ALL OF THE ARGUMENTS FOR POST-CONVICTION
RELIEF SET FORTH IN THE PCR BRIEF FILED BY HIS
TRIAL ATTORNEY.

In Point One, defendant argues counsel failed to object to

the prosecutor's summation comments that: (1) improperly

discredited his self-defense claim by pointing out that it was

raised two and one-half years after the incident, that he did not

present his theory that Duwuan was armed prior to trial, and stated

that there was no justification for shooting his girlfriend's son;

(2) erroneously questioned why defendant did not present, as a

witness, a woman with whom he was having an affair and who was

present at the shooting; and (3) there was no evidence to support

defendant's claim that his girlfriend and her son were "gun-toting

drug dealers." He further argues that Judge John T. Mullaney did

not address these issues in his decision. We disagree.

In a twenty-two-page rider to the February 6 order denying

PCR, Judge Mullaney correctly determined that defendant's

contentions were barred by Rule 3:22-5 because the identical claim

was raised and adjudicated on the merits before the trial court.

"A prior adjudication upon the merits of any ground for relief is

conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding brought pursuant

to this rule or prior to the adoption thereof, or in any appeal

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taken from such proceedings." R. 3:22-5. Post-conviction relief

proceedings are not an opportunity to re-litigate claims already

decided on the merits in prior proceedings. State v. McQuaid, 147

N.J. 464, 483 (1997); R. 3:22-5. If an issue has been determined

on the merits in a prior appeal, it cannot be re-litigated in a

later appeal of the same case, even if the matter is of

constitutional dimension. McQuaid, supra, 147 N.J. at 483-84;

State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif.

denied, 133 N.J. 436 (1993).

Defendant's contentions are substantially similar to the

issues raised and adjudicated in Points I, II and V of his direct

appeal, where he argued that the prosecutor's cross-examination

regarding defendant's delay in claiming self-defense and the

prosecutor's comments during summation were improper and denied

him a fair trial. State v. Harris, supra, slip op. at 13. We

disagreed, deciding that the prosecutor properly questioned

defendant about, and highlighted in summation, the inconsistencies

between defendant's statements to police and his trial testimony.

Id. at 16. We also decided that defendant's additional contentions

about prosecutorial misconduct were without merit. Ibid. Thus,

we conclude defendant's claims that he was prejudiced by the trial

judge's comments to his counsel are procedurally barred by Rule

3:22-5 as they were previously litigated. We furthermore reject

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the arguments as lacking sufficient merit to justify discussion

in an opinion pursuant to Rule 2:11-3(e)(2).

In Point Two, defendant contends that trial counsel was

ineffective for not objecting to jury instructions that did not

advise the jury "that the State must disprove self-defense as an

element or murder, akin to the passion/provocation instruction,

[and] requires the reversal of [his] murder conviction and a remand

for a new trial." Judge Mullaney correctly determined that

defendant's contention lacks merit because he failed to set forth

factual assertions supporting his claim. The judge stated:

[Defendant] provides no argument in support
of his claim and this [c]ourt will not make
an argument for him. It has been held that
in order "[t]o establish a prima facie case,
petitioner must demonstrate a reasonable
likelihood that his or her claim, viewing the
facts alleged in the light most favorable to
the petitioner, will ultimately succeed on the
merits." R. 3:22-10(b). However, a
[defendant] "must do more than make bald
assertions that he was denied the effective
assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged
substandard performance." [State v. Cummings
321 N.J. Super. 154, 170 (App. Div. 1999)].

We reject defendant's argument on appeal that his ineffectiveness

claim regarding the jury charge was "more than sufficiently set

forth in his pro se petition," because defendant again failed to

support this argument with any fact, analysis or legal authority.

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 Lastly, in Point Three, defendant incorporates, in a summary

fashion, the arguments his PCR attorney presented to Judge

Mullaney. However, merely stating the judge erred without setting

forth legal authority is procedurally deficient under Rule 2:6-

2(a)(6). See State v. Hild, 148 N.J. Super. 294, 296 (App. Div.

1977) (holding that parties have a duty to justify their positions

by specific reference to legal authority). Nonetheless, based

upon our review of the record, we conclude these arguments lack

sufficient merit to justify discussion in an opinion pursuant to

Rule 2:11-3(e)(2), and we reject them for the reasons set forth

in Judge Mullaney's written opinion.

Affirmed.

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