State v. Naquan O'neil (072072) ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Naquan O’Neil, a/k/a Naquan O’Neal (A-68-12) (072072)
Argued February 4, 2014 -- Decided October 6, 2014
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether appellate counsel’s failure to raise on direct appeal an erroneous
jury instruction that denied defendant a valid defense to the charges of aggravated manslaughter and manslaughter
constituted ineffective assistance of counsel.
Early on the morning of March 18, 2001, defendant Naquan O’Neil fatally shot Hassan Hardy. In the days
prior to the shooting, defendant and Hardy were involved in several verbal and physical altercations. On one
occasion, Hardy slammed a car door into defendant and defendant punched Hardy. Later the same evening, Hardy
accosted defendant, shot four shots in the direction of his legs without hitting him, and struck defendant in the head
with the gun. Defendant then retrieved a gun from a nearby known gun stash and shot out the windows of Hardy’s
car. A witness observed the shooting on the morning of March 18, testifying that she saw defendant approach
Hardy, ask him if he liked playing with guns, and shoot him. Although the witness did not see Hardy pull a gun on
defendant, police recovered a loaded and cocked gun that another man had removed from Hardy’s clothing
following the shooting. Defendant was arrested and charged with first-degree murder.
At trial, defendant testified that his earlier altercations with Hardy prompted him to carry a .380 caliber
handgun for protection. He claimed that he shot Hardy because Hardy had pointed a gun at him and he feared he
would be shot. At the jury-charge conference, the prosecutor and defense counsel agreed that self-defense applied
only to the murder charge but not to the lesser-included charges of aggravated manslaughter and manslaughter,
which are predicated on reckless conduct. The court provided the jury with a self-defense instruction on the murder
charge, advising that the defense was not applicable to the lesser-included charges. The jury acquitted defendant of
murder, but convicted him of first-degree aggravated manslaughter.
Defendant appealed, but did not challenge the self-defense charge. The case was submitted to the
Appellate Division on March 21, 2007. Eight days later, another Appellate Division panel held that self-defense is
applicable to a charge of manslaughter. State v. Rodriguez, 392 N.J. Super. 101, 113 (App. Div. 2007), aff’d, 195
N.J. 165 (2008). Defendant’s appellate counsel did not raise the validity of the self-defense charge with the panel in
this case either after the Rodriguez decision was rendered or after this Court granted certification on July 6, 2007.
State v. Rodriguez, 192 N.J. 292 (2007). On August 10, 2007, the panel in defendant’s case affirmed his conviction.
In May 2008, defendant filed a petition for post-conviction relief (PCR), claiming that his trial and
appellate attorneys provided ineffective assistance of counsel by failing to raise self-defense as a defense to
aggravated manslaughter and manslaughter. The PCR court denied the petition, finding that defendant should have
challenged the jury charge on direct appeal and that appellate counsel did not act unreasonably in relying on State v.
Moore, 158 N.J. 292, 303 (1999), which included language stating that justification defenses are unavailable where
recklessness or negligence establish the requisite mental element of a charged crime. Although this Court had
subsequently affirmed the Appellate Division decision in Rodriguez, referring to its earlier assertion in Moore as
“mistaken,” the PCR court maintained that appellate counsel could not be expected to have anticipated that decision.
Defendant appealed, and the Appellate Division affirmed, reasoning that the governing law prior to this Court’s
decision in Rodriguez was ambiguous because of the language in Moore. Thus, the panel determined that
defendant’s appellate counsel did not have a professional or constitutional obligation to raise self-defense as a
defense to manslaughter. The Court granted defendant’s petition for certification. 214 N.J. 119 (2013).
HELD: Defendant’s appellate counsel’s failure to bring the Rodriguez decisions to the attention of the Appellate
Division panel that heard this case rendered counsel’s performance ineffective under both our Federal and State
Constitutions.
1
1. A PCR proceeding is a defendant’s last opportunity to challenge the fairness of a criminal verdict in the state
system, and ineffective assistance of counsel claims are particularly suited for post-conviction review. The Sixth
Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee
an accused the right to effective assistance of counsel in criminal proceedings, including direct appeal. To establish
a valid claim under both the Federal and State Constitutions, a defendant must satisfy a two-pronged standard: (1)
counsel’s errors were so egregious, falling below an objective standard of reasonableness, that he or she was not
functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) counsel’s deficient performance
prejudiced the defense. The prejudice standard is met if there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. (pp. 13-16)
2. Here, one fair inference is that the defense succeeded, given the acquittal on murder. However, defendant had no
legitimate defense to aggravated manslaughter or manslaughter in light of the court’s charge that self-defense could
not exonerate him of those crimes. In Rodriguez, supra, the Court affirmed a published Appellate Division decision,
which held that “a valid claim of self-defense -- when not disproved by the State -- exonerates a defendant of
reckless manslaughter.” 195 N.J. at 169. That Appellate Division decision was decided eight days after the appeal
in this case was submitted to a panel and more than four months before the panel rendered its decision, and was an
expression of the law in the State at that time. It directly benefitted defendant, signaling that he had been denied a
legitimate defense at his trial. However, defendant’s appellate counsel failed to raise that meritorious issue before
the panel in this case. Nor did counsel raise the issue following this Court’s grant of certification in Rodriguez.
Although appellate counsel is not obligated to endlessly advocate for his or her client, he or she should bring to the
court’s attention controlling law that will vindicate the client’s cause. (pp. 16-18)
3. The Court’s Rodriguez decision, which was rendered after defendant’s direct appeal had run its course, was not a
novel interpretation of the law of self-defense. Rather, the Court’s conclusion that “a person who kills in the honest
and reasonable belief that the protection of his own life requires the use of deadly force does not kill recklessly,”
was based on the plain language of the relevant statutory provisions. Rodriguez, supra, 195 N.J. at 171-73.
Specifically, N.J.S.A. 2C:3-4(b)(2) provides, in part, that deadly force is justified where a defendant “reasonably
believes” it is necessary to protect himself against death or serious bodily harm. A “reasonable belief” is defined as
one “which does not make the actor reckless or criminally negligent.” N.J.S.A. 2C:1-14(j). Accordingly, the plain
language of the Code of Criminal Justice indicates that self-defense is a defense to aggravated and reckless
manslaughter, a conclusion which has been reflected in case law since the Code’s inception. In light of this history,
the Rodriguez Court viewed the broadly stated dicta in Moore, supra, 158 N.J. at 303 -- that justification defenses
are unavailable where recklessness or negligence suffice to establish the requisite mental element of a charged crime
-- as a “mistaken assertion” limited to the facts of that case. Rodriguez, supra, 195 N.J. at 173-74. Additionally,
widely-read commentary existing at the time of defendant’s appeal warned that Moore should not be read to indicate
that the justification of self-defense is unavailable against charges based on recklessness. (pp. 18-21)
4. Addressing the narrow question of whether defendant was denied the effective assistance of appellate counsel,
the Court concludes that counsel’s representation fell below the objective standard of reasonableness. Counsel
should have brought to the attention of the appellate panel in defendant’s case the Appellate Division decision in
Rodriguez, which, at the time of defendant’s appeal, was controlling law and clearly expressed that defendant was
denied a valid defense to the lesser-included offenses of aggravated manslaughter and manslaughter. Counsel is
expected to be aware of important and relevant changes in the law. Defendant was clearly prejudiced by counsel’s
failure to raise the self-defense issue since, but for this error, there is a reasonable probability that the panel deciding
defendant’s case would have applied the published holding of its sister panel and reversed defendant’s aggravated
manslaughter conviction. Similarly, there is a reasonable probability that, had the jury been properly instructed, the
outcome of the trial would have been different. Since the trial court’s erroneous jury instruction undermines
confidence in the verdict, remand for a new trial is required. (pp. 21-24)
The judgment of the Appellate Division is REVERSED, defendant’s aggravated-manslaughter conviction
is VACATED, and the matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-68 September Term 2012
072072
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAQUAN O’NEIL, a/k/a NAQUAN
O’NEAL,
Defendant-Appellant.
Argued February 4, 2014 – Decided October 6, 2014
On certification to the Superior Court,
Appellate Division.
Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Lasota and Karen Ann
Lodeserto, Designated Counsel, of counsel
and on the briefs).
Lucille M. Rosano, Special Deputy Attorney
General/Assistant Essex County Prosecutor
argued the cause for respondent (Carolyn A.
Murray, Acting Essex County Prosecutor,
attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In State v. Rodriguez, we held that a person who acts in
self-defense and “kills in the honest and reasonable belief that
the protection of his own life requires the use of deadly force”
cannot be convicted of murder, aggravated manslaughter, or
manslaughter. 195 N.J. 165, 172-74 (2008). That conclusion, we
1
stated, follows directly from the language of the New Jersey
Code of Criminal Justice, N.J.S.A. 2C:11-2(a), 11-4(b)(1), 3-
4(b)(2), and 3-9(c). Id. at 172-73. In Rodriquez, supra, we
put to rest the “mistaken assertion” in State v. Moore, 158 N.J.
292, 303 (1999), that a defendant charged with aggravated
manslaughter and manslaughter could not assert self-defense.
195 N.J. at 173-74.
In the 2003 trial of defendant Naquan O’Neil, the trial
court instructed the jury that self-defense is a valid
justification for murder but not for aggravated manslaughter or
manslaughter. Defense counsel did not object to the charge.
The jury acquitted defendant of murder and convicted him of
aggravated manslaughter. On appeal, defense counsel did not
challenge the court’s charge on self-defense.
In his petition for post-conviction relief (PCR), defendant
claims that he was denied the effective assistance of appellate
counsel guaranteed by the Sixth Amendment of the United States
Constitution and Article I, Paragraph 10 of the New Jersey
Constitution. The basis for that claim is that appellate
counsel did not raise on direct appeal the erroneous jury
instruction that denied him a valid defense to the charges of
aggravated manslaughter and manslaughter.1 The Law Division
1 Although initially defendant contended that trial counsel was
ineffective for not requesting a self-defense charge on the
2
denied the PCR petition, and the Appellate Division affirmed,
finding that appellate counsel’s performance was not deficient
because Moore controlled at the time of defendant’s appeal.
We now reverse. The Appellate Division panel in
defendant’s direct appeal heard argument on March 21, 2007, but
did not render its decision until August 10, 2007. Between
those dates, another Appellate Division panel ruled, in a
decision published on March 29, 2007, that self-defense was a
valid defense to a charge of manslaughter. State v. Rodriguez,
392 N.J. Super. 101, 113 (App. Div. 2007). On this precise
issue, this Court granted certification on July 6, 2007. State
v. Rodriguez, 192 N.J. 292 (2007). Whatever confusion was
caused by Moore, defendant’s appellate counsel’s failure to
bring the Rodriguez decisions to the attention of the Appellate
Division panel that heard this case rendered counsel’s
performance ineffective under both our Federal and State
Constitutions. We are therefore constrained to vacate
defendant’s aggravated-manslaughter conviction and remand for a
new trial.
I.
A.
aggravated-manslaughter and manslaughter charges, he did not
press this claim on appeal.
3
Defendant was indicted on charges of first-degree murder,
N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a
handgun without a carrying permit, N.J.S.A. 2C:39-5(b); and
second-degree possession of a handgun for the purpose of using
it unlawfully against another, N.J.S.A. 2C:39-4(a). At
defendant’s trial, the court instructed the jury on the
additional charges of first-degree aggravated manslaughter and
second-degree manslaughter, lesser-included offenses of murder.
The charges stemmed from the shooting death of Hassan Hardy.
Defendant claimed self-defense as the justification for killing
Hardy. The evidence presented at trial relevant to this appeal
follows.
B.
Defendant and Hardy had been friends. In the two days
before defendant fatally shot Hardy, however, the two had
several violent encounters.2 On the evening of March 16, 2001,
they went to a nightclub in Newark with a group of mutual
friends. At the club, defendant and Hardy got into an argument
and later exchanged verbal insults in a nearby parking lot. The
confrontation escalated when Hardy, seated in a friend’s car,
slammed the car door twice into defendant, who then punched
2The events leading to the shooting of Hardy are generally not
in dispute. Those events, as described, are a composite of the
trial testimonies of three witnesses, one of whom was defendant.
4
Hardy. Friends stopped the fight, and defendant and Hardy went
their separate ways.
Sometime later that evening, the two encountered each other
again on a Newark street. Defendant was sitting on his car when
Hardy emerged from behind a bush, armed with a handgun. The two
exchanged words, and Hardy, who was much larger than defendant,
grabbed defendant by the arm. Hardy fired approximately four
shots in the direction of defendant’s legs without hitting him
and then struck defendant in the head with the gun several
times. Hardy began to drag defendant toward an empty lot but
let him go when someone yelled that the police were coming.
Afterwards, defendant went to a nearby lot and retrieved a .380
caliber handgun from a known gun stash. From there, defendant
walked to where Hardy had parked his vehicle and shot out its
windows. Defendant did not return the gun to the stash.
Cindy Crawford testified that she was friends with both
defendant and Hardy. On March 17, 2001, at 9:00 p.m., defendant
picked Crawford up at her house and the two drove in defendant’s
car. Crawford noticed that defendant had a gun on his lap. At
about 10:00 p.m., defendant brought her home.
According to Crawford, at around 1:00 a.m., she observed
Hardy standing by a tree near her home. She saw defendant
approach Hardy and say to him, “You like playing with guns?”
Defendant then opened fire, and Hardy fell to the ground.
5
Crawford did not see Hardy pull a gun on defendant. Defendant
got in a car and left the scene.
After the shooting, Crawford saw someone she recognized
from the neighborhood rifle through Hardy’s clothing, removing a
cell phone, money, and a gun -- but drop the gun as police
arrived. The police recovered a .25 caliber handgun next to
Hardy’s body. The gun’s trigger was cocked, one live round was
in the chamber, and five rounds were in the magazine. The gun
had not been fired.
In his testimony, defendant claimed that, after his earlier
bouts with Hardy, he carried a .380 caliber handgun in the early
morning of March 18 for protection. He encountered Hardy again
on the street, and they exchanged heated words. According to
defendant, Hardy was angry and pulled from his pocket a gun,
which he pointed at defendant. In response, defendant quickly
drew the gun and shot Hardy. Defendant explained that he did
not retreat because he could not “outrun no bullet,” and fired
the weapon because he feared he “was going to be shot.” After
leaving the scene, defendant stated he “[b]lacked out” and
either “dropped” or “threw” the gun behind nearby townhouses.
Nine days after the shooting, the police arrested
defendant. The gun used to kill Hardy was never recovered.
C.
6
At the jury-charge conference, no one questioned that
defendant was entitled to a charge on self-defense. The
prosecutor and defense attorney, however, agreed that self-
defense applied only to the charge of murder and not to the
lesser-included charges of aggravated manslaughter and
manslaughter -- offenses that are predicated on reckless
conduct. See N.J.S.A. 2C:11-4(a)(1) (defining aggravated
manslaughter as “recklessly caus[ing] death under circumstances
manifesting extreme indifference to human life”); N.J.S.A.
2C:11-4(b)(1) (defining manslaughter as “recklessly” causing
death).
The court instructed the jury that, on the charge of
murder, “self-defense completely exonerates a person who uses
force in the reasonable belief that such action was necessary to
prevent his or her death or serious injury, even though his
belief was later proven mistaken.” The court added, “The
defense of self-defense is not applicable to the lesser-included
charges of aggravated manslaughter and reckless manslaughter. .
. . When the mental state is recklessness, self-defense is not
a justification.”
The jury acquitted defendant of murder but convicted him of
first-degree aggravated manslaughter, third-degree unlawful
possession of a handgun, and second-degree possession of a
handgun for the purpose to use it unlawfully against another.
7
On May 2, 2003, the trial court sentenced defendant to a prison
term of twenty-two years on the aggravated-manslaughter
conviction subject to an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, and to a concurrent five-year term on the
unlawful possession of a handgun conviction. The remaining
charge was merged into the aggravated-manslaughter conviction.
The court imposed all requisite fines and penalties.3
II.
On direct appeal, defendant’s appellate counsel raised
several purported trial errors and claimed that the sentence was
excessive. Appellate counsel did not challenge the self-defense
charge. The case was submitted to the Appellate Division on
March 21, 2007. Just eight days later, the Rodriguez panel held
that self-defense is applicable to both a charge of manslaughter
and possession of a weapon for an unlawful purpose. Rodriguez,
supra, 392 N.J. Super. at 103.
3 The court did not impose the five-year period of parole
supervision mandated by the version of the No Early Release Act
in effect at the time of the offense, L. 1997, c. 117, § 2 (eff.
June 9, 1997) (codified as amended at N.J.S.A. 2C:43-7.2(c))
(“[A] court imposing a minimum period of parole ineligibility of
85 percent of the sentence pursuant to [N.J.S.A. 2C:43-7.2]
shall also . . . impose a five-year term of parole supervision
if the defendant is being sentenced for a crime of the first
degree . . . .”).
8
Significantly, defendant’s appellate counsel failed to
raise the validity of the self-defense charge with the panel in
this case after the Rodriguez decision was rendered. Nor did
appellate counsel raise the self-defense issue with the panel
after we granted certification in Rodriguez, supra, on July 6,
2007. 192 N.J. 292. On August 10, 2007, the Appellate Division
affirmed defendant’s conviction in an unpublished opinion but
remanded for re-sentencing pursuant to State v. Natale, 184 N.J.
458 (2005).4
III.
A.
In May 2008, defendant filed a PCR petition. He claimed
that the failure of his trial and appellate attorneys to raise
self-defense as a defense to aggravated manslaughter and
manslaughter constituted ineffective assistance of counsel.
Defendant argued that “it has always been the law of New Jersey
that self-defense could be a justification for a charge of
manslaughter” and that this Court’s decision in Rodriguez
“authoritatively clarified” this issue in the wake of “confusion
generated by the language in [Moore].”
In September 2010, the PCR court denied the petition on two
grounds. It held that defendant should have raised a challenge
4 On remand, the court imposed the sentence originally given to
defendant.
9
to the jury charge at trial or on direct appeal and therefore
was procedurally barred by Rule 3:22-4 from raising the claim on
PCR. It also held that appellate counsel did not act
unreasonably by relying on Moore -- “the most recent available
opinion on the topic.” The PCR court maintained that appellate
counsel could not be expected to have anticipated this Court’s
2008 decision in Rodriguez.
Defendant appealed.
B.
The Appellate Division affirmed in an unpublished opinion.
The panel reasoned that before this Court’s decision in
Rodriguez, “it was by no means clear that a trial court” was
required to charge on self-defense in a manslaughter case. The
panel maintained that, although “case law fragments” indicated
that self-defense was an available defense to a manslaughter
charge at the time of defendant’s trial, citing State v. Kelly,
97 N.J. 178, 203-04 n.12 (1984), and State v. Ciuffreda, 127
N.J. 73, 81-82 (1992), the “governing law” was nonetheless
“ambiguous” because of language in Moore, which suggested that
self-defense was barred in crimes charging recklessness.
According to the panel, not until this Court in Rodriguez
rejected the disputed language in Moore did defendant’s
appellate counsel have a professional or constitutional
obligation to raise self-defense as a defense to a manslaughter
10
charge. Indeed, the panel asserted that defendant’s trial and
appellate counsel should not be faulted for not predicting that
this Court “would repudiate its earlier unqualified assertion in
Moore that self-defense claims do not pertain to crimes of
recklessness.” The panel concluded that defendant was not
deprived of the effective assistance of counsel guaranteed by
the Federal and State Constitutions.
This Court granted defendant’s petition for certification.
State v. O’Neil, 214 N.J. 119 (2013).
IV.
Defendant argues that our holding in Rodriguez -- that
self-defense can constitute a defense to manslaughter -- did not
announce a new rule of law. Instead, he submits that Rodriguez
merely reaffirmed well-settled principles found in the Code of
Criminal Justice and our jurisprudence, and clarified our
earlier decision in Moore. On this basis, defendant insists
that Rodriguez’s holding should be fully retroactive and
applicable to his PCR petition. Alternatively, he reasons that
even if Rodriguez did set forth a new rule of law, the new “rule
must apply retroactively to the small class of cases in which
the trial court erroneously relied upon the dicta in Moore in
denying a self-defense” charge for aggravated manslaughter and
manslaughter. Defendant, moreover, submits that appellate
counsel was constitutionally deficient because he “should have
11
been aware of the Appellate Division’s published opinion in
Rodriguez which was issued while [defendant’s] direct appeal was
pending” and should have raised the jury charge issue in that
appeal.
In contrast, the State urges this Court to affirm the
Appellate Division. The State submits that our holding in
Rodriguez represents a new rule of law and therefore does not
apply retroactively on collateral review, such as on PCR. It
points out that the Court in Moore “made the broad pronouncement
that the justification of self-defense was not available where
the charged offense required a reckless state of mind.” The
State notes that several Appellate Division decisions, all but
one unpublished, relied on the “unequivocal language” of Moore.
The State maintains that any retroactive application of
Rodriguez should be limited to cases pending on direct review on
the day Rodriguez was announced. Because our decision in
Rodriguez was decided ten months after defendant’s direct
appeal, the State argues that interests in finality must be
respected. Additionally, the State insists that “[a]ppellate
counsel should not be held accountable for failing to anticipate
the Supreme Court would affirm Rodriguez,” nor should she have
“a never-ending obligation . . . to advocate ad infinitum.” The
State concludes that appellate counsel “exercised reasonable
professional judgment” and fulfilled her responsibility to
12
provide effective representation under both the Federal and
State Constitutions.
V.
A.
This appeal comes to us from the denial of defendant’s
petition for PCR. A PCR proceeding provides a defendant a forum
to remedy a substantial denial of rights guaranteed by “the
Constitution of the United States or the Constitution or laws of
the State of New Jersey.” R. 3:22-2(a). It is a defendant’s
last opportunity “to challenge the ‘fairness and reliability of
a criminal verdict in our state system.’” State v. Nash, 212
N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235,
249 (2005)). It is a “safeguard” intended to ensure that “a
defendant was not unjustly convicted.” State v. McQuaid, 147
N.J. 464, 482 (1997).
“Ineffective-assistance-of-counsel claims are particularly
suited for post-conviction review because they often cannot
reasonably be raised in a prior proceeding.” State v. Preciose,
129 N.J. 451, 460 (1992). Indeed, without collateral review, a
defendant would have no forum to review his claim that he was
denied the effective assistance of counsel on direct appeal.
That is so because a defendant “will often not realize that he
has a meritorious ineffectiveness claim until he begins
13
collateral review proceedings.” Kimmelman v. Morrison, 477 U.S.
365, 378, 106 S. Ct. 2574, 2584, 91 L. Ed. 2d 305, 321 (1986).
The primary focus of defendant’s challenge is that he was
denied the effective assistance of appellate counsel in
violation of the Federal and State Constitutions. We now turn
to the law governing defendant’s claim.
B.
The Sixth Amendment of the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution both have
been construed to guarantee an accused “‘the right to the
effective assistance of counsel’” in a criminal proceeding.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063, 80 L. Ed. 2d 674, 692 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14,
25 L. Ed. 2d 763, 773 n.14 (1970)); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting Strickland’s effective-assistance standard).
The standard for establishing that a defendant was denied the
effective assistance of counsel is the same under both the
Federal and State Constitutions. State v. Allah, 170 N.J. 269,
283 (2002).
The right to effective assistance includes the right to the
effective assistance of appellate counsel on direct appeal. See
Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L.
Ed. 2d 821, 830 (1985) (“A first appeal as of right . . . is not
14
adjudicated in accord with due process of law if the appellant
does not have the effective assistance of an attorney.”); State
v. Guzman, 313 N.J. Super. 363, 374 (App. Div.) (holding that
Strickland test applies to claims of ineffective assistance at
trial level and on appeal), certif. denied, 156 N.J. 424 (1998).
To establish ineffective assistance of counsel, a defendant
must satisfy two prongs. First, he must demonstrate that
counsel made errors “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, supra, 466 U.S. at 687, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. An
attorney’s representation is deficient when it “[falls] below an
objective standard of reasonableness.” Strickland, supra, 466
U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz,
supra, 105 N.J. at 58.
Second, a defendant “must show that the deficient
performance prejudiced the defense.” Strickland, supra, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz,
supra, 105 N.J. at 52. A defendant will be prejudiced when
counsel’s errors are sufficiently serious to deny him “a fair
trial.” Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. The
prejudice standard is met if there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
15
proceeding would have been different.” Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz,
supra, 105 N.J. at 52. A “reasonable probability” simply means
a “probability sufficient to undermine confidence in the
outcome” of the proceeding. Strickland, supra, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.
at 52.
We next discuss the law of self-defense relevant to the
present case.
VI.
A.
In Rodriguez, supra, we affirmed a reported Appellate
Division decision, which held that “a valid claim of self-
defense -- when not disproved by the State -- exonerates a
defendant of reckless manslaughter.” 195 N.J. at 169. In the
case before us, no one disputed at trial that defendant had a
legitimate claim of self-defense that had to be decided by the
jury. The jury in this case, without objection, was told that
self-defense could not exonerate defendant of aggravated
manslaughter or manslaughter because the mental state at issue
was recklessness on both charges. Defendant presented only one
defense to the jury: self-defense. One fair inference is that
the defense succeeded, given the acquittal on murder.
Defendant, however, had no legitimate defense to aggravated
16
manslaughter or manslaughter in light of the court’s charge that
self-defense could not exonerate defendant of those crimes.
As earlier explained, the published Appellate Division
opinion in Rodriguez was decided just eight days after the
appeal in this case was submitted to the panel and more than
four months before that panel rendered its decision. The
Appellate Division decision in Rodriguez directly benefitted
defendant, signaling that he had been denied a legitimate
defense at his trial. That decision was “an expression of the
law of our State” at that time. See Gormley v. Wood-El, 218
N.J. 72, 114 (2014) (“The decisional law of the Appellate
Division is not only binding on our trial courts, but is an
expression of the law of our State unless the New Jersey Supreme
Court says otherwise.”). Nevertheless, appellate counsel failed
to raise that meritorious issue before the panel in this case.
Nor did she raise the issue with the panel after we granted
certification in Rodriguez.
While appellate counsel does not have an obligation “to
advocate ad infinitum,” she should bring to the court’s
attention controlling law that will vindicate her client’s
cause. See Stallings v. United States, 536 F.3d 624, 628 (7th
Cir. 2008) (holding appellate counsel’s performance deficient
for failing to challenge sentence pursuant to United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
17
where Booker was decided after defendant’s conviction but prior
to appeal); Ballard v. United States, 400 F.3d 404, 410-11 (6th
Cir. 2005) (holding appellate counsel ineffective for failing to
raise violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), where Apprendi was decided
while direct appeal pending); see also R. 2:6-11(d) (“A party
may . . . without leave, serve and file a letter calling to the
court’s attention . . . relevant cases decided or legislation
enacted subsequent to the filing of the brief.”).
B.
Additionally, our Rodriguez decision, which was rendered
after defendant’s direct appeal had run its course, was not a
novel interpretation of the law of self-defense. We explained
in detail in Rodriguez, supra -- and need not repeat at length
here -- that the plain language of the relevant provisions of
the Code of Criminal Justice led to the inexorable conclusion
that self-defense was a defense to aggravated manslaughter and
reckless manslaughter. 195 N.J. at 171-73. By the very terms
of the Code, the use of deadly force is justifiable provided
that (1) the defendant “‘reasonably believes that such force is
necessary to protect himself against death or serious bodily
harm,’” (2) he does not “‘provoke[] the use of force against
himself,’” and (3) he does not have the ability to safely
retreat. Id. at 171 (quoting N.J.S.A. 2C:3-4(b)(2)).
18
“Reasonably believes” is defined in the Code as “‘a belief the
holding of which does not make the actor reckless or criminally
negligent.’” Id. at 172 (quoting N.J.S.A. 2C:1-14(j)). We thus
concluded that “[b]ased on the Code’s own language, a person who
kills in the honest and reasonable belief that the protection of
his own life requires the use of deadly force does not kill
recklessly.” Ibid. Notably, manslaughter and aggravated
manslaughter both require proof that the accused recklessly
caused the death of another human being. Ibid. (citing N.J.S.A.
2C:11-4(a)(1), (b)(1)). Accordingly, the Code’s plain language
indicates that self-defense applies to charges of aggravated
manslaughter and manslaughter.
In addition, from the inception of the Code, case law
reflected what the Code made manifest -- that defendants facing
manslaughter charges could offer a self-defense justification.
See Kelly, supra, 97 N.J. at 204 n.12 (holding that legislative
intent at time of Code’s enactment was that “self-defense based
on a reasonable belief in the need for deadly force would
constitute justification -- a complete defense -- to the charge
of reckless manslaughter”); see also Ciuffreda, supra, 127 N.J.
at 81-82 (stating that self-defense could be valid justification
against both aggravated manslaughter and reckless manslaughter);
State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997)
(“Self-defense is a complete defense not only to murder but also
19
to manslaughter . . . .” (citing Kelly, supra, 97 N.J. at 203-
04 n.12)).
In light of that history, we viewed the broadly stated
dicta in our 1999 decision in Moore -- that “‘[t]he Code’s
justification defenses are not available in a prosecution where
recklessness or negligence suffices to establish the requisite
mental element’” -- as a “mistaken assertion” limited to the
peculiar facts in Moore. Rodriguez, supra, 195 N.J. at 173-74
(quoting Moore, supra, 158 N.J. at 303). Although here the
State cites State v. Hogan, 336 N.J. Super. 319, 346 (App.
Div.), certif. denied, 167 N.J. 635 (2001), which repeated the
language in Moore later disapproved in Rodriguez, in the end the
Hogan court reached a result similar to the one in Rodriguez.
The Hogan court upheld a grand jury charge, which “conveyed the
principle that if defendants were reasonable in perceiving they
were under attack and used reasonable force to repel that
attack, they could not be charged with aggravated assault, an
offense that required ‘reckless’ conduct as an alternative
predicate to a conviction.” Id. at 347.
It also bears mentioning that a widely read commentator, in
discussing N.J.S.A. 2C:3-9 at the time of defendant’s direct
appeal, warned that “[Moore] should not be read to indicate that
the subsection means that the justification of self-defense is
unavailable against any charge based on recklessness.” Cannel,
20
New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:3-9
(2002). The commentator emphasized that “[i]f the actor is
justified in using the actual force that occurred, the
justification is available against all charges based on the
force.” Ibid. That commentary foreshadowed the Appellate
Division decision in Rodriguez.
With these principles in mind, we now turn to whether
defendant’s counsel provided constitutionally deficient
representation.
VII.
The parties dispute the extent of retroactivity to be
accorded to our Rodriguez holding. The parties argue over
whether Rodriguez recites a long-standing rule or a new one and
whether Rodriguez should be given full retroactivity or only
pipeline retroactivity. We need not address these issues here.
Instead, we are presented with the narrow question of whether
defendant’s appellate attorney denied defendant the effective
representation of counsel guaranteed by the Sixth Amendment of
the Federal Constitution and Article I, Paragraph 10 of our
State Constitution.
We conclude that defendant’s counsel’s representation “fell
below an objective standard of reasonableness.” See Strickland,
supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;
Fritz, supra, 105 N.J. at 58. Putting aside (1) the clear
21
language of the Code indicating that self-defense is available
to charged crimes involving the mens rea of recklessness, (2)
cases such as Kelly that state the same, and (3) the commentary
to N.J.S.A. 2C:3-9 cautioning lawyers not to misread Moore as
suggesting that “self-defense is unavailable against any charge
based on recklessness,” defendant’s appellate counsel should
have brought to the attention of the appellate panel in
defendant’s case the Appellate Division decision in Rodriguez.
That decision explained that self-defense is a defense in a
manslaughter prosecution and construed the factual setting of
Moore to support that statement of law. See Rodriguez, supra,
392 N.J. Super. at 112-14.
At the time of defendant’s appeal, the Appellate Division’s
Rodriguez decision was the controlling law unless overturned by
this Court. That decision clearly expressed that defendant was
denied a valid defense to the lesser-included offenses of
aggravated manslaughter and manslaughter at his trial. Surely,
appellate counsel could have no strategic reason for not raising
a ruling that presumably would lead to a new trial for his
client. The Strickland/Fritz standard may not require appellate
counsel to have the foresight to raise a cutting-edge issue or
anticipate a change in the law not evident in existing
jurisprudence. However, “once a change -- particularly an
important and relevant change -- does come about,” counsel is
22
expected to be aware of it. Ballard, supra, 400 F.3d at 408;
see Stallings, supra, 536 F.3d at 627-28. If every person is
presumed to know the law, no exception can be made for appellate
counsel. Although informed “strategic choices” made by counsel
will rarely be subject to challenge, Strickland, supra, 466 U.S.
at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, no deference
must be paid to a choice made in disregard of standing
precedent.
The prejudice suffered by defendant is clear. Had
appellate counsel raised the self-defense issue, there is a
reasonable probability that the panel deciding defendant’s
appeal would have applied the published holding of its sister
panel, almost certainly leading to the reversal of defendant’s
aggravated-manslaughter conviction. Even had the panel denied
relief, that would have led to inconsistent decisions between
two appellate panels, an independent ground for the grant of
certification by this Court. In any event, this Court granted
certification in Rodriguez even before defendant’s panel reached
its decision. At the very least, the issue would have been
preserved if raised by appellate counsel.
We find that, but for appellate counsel’s errors, there is
“a reasonable probability” that “the result of the proceeding
would have been different.” See Strickland, supra, 466 U.S. at
694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105
23
N.J. at 52. If the jury found that defendant had an honest and
reasonable belief that the use of deadly force was necessary to
save his own life, that he was not the aggressor, and that he
could not have safely retreated, then self-defense applied not
only to the murder charge, but also to the aggravated-
manslaughter and manslaughter charges. The jury was instructed
that self-defense applied to the murder charge and acquitted
defendant of that offense. The jury was instructed that self-
defense did not apply to the aggravated-manslaughter and
manslaughter charges and convicted him of those offenses.
Of course, we cannot know the precise reason for the jury’s
verdict of not guilty to murder. Nevertheless, the trial
court’s failure to charge self-defense on aggravated
manslaughter and manslaughter leaves open a reasonable
probability that, if properly instructed, the outcome would have
been different. The erroneous jury instruction necessarily
undermines confidence in the verdict. See Strickland, supra,
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz,
supra, 105 N.J. at 52.
VIII.
For the reasons expressed, we reverse the judgment of the
Appellate Division, vacate defendant’s aggravated-manslaughter
conviction, and remand for a new trial.
24
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in
JUSTICE ALBIN’s opinion.
25
SUPREME COURT OF NEW JERSEY
NO. A-68 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAQUAN O’NEIL, a/k/a NAQUAN
O’NEAL,
Defendant-Appellant.
DECIDED October 6, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST VACATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE CUFF (t/a) X
TOTALS 6
1