NOT FOR PUBLICATION WITHOUT THE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
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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.
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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.
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