STATE OF NEW JERSEY VS. RAHEEM W. HARRITY (07-09-3169, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2385-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM W. HARRITY, a/k/a MALIK
E. COX, RAHEEM WAFEA HARRITY,
KEITH WILLIAM, RASHEEN HARRISON,
KEITH WILLIAMS, LAMAR BATH, LAMAR
COX, LAMAR HARRISON, LAMAR D.
HARRITY, RASHEEN E. HARRISION and
MARK ANDERSON,
Defendant-Appellant.
_______________________________
Submitted July 5, 2017 – Decided October 19, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
07-09-3169.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anthony J. Veccio, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Maura Murphy
Sullivan, Assistant Prosecutor, of counsel and
on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a January 8, 2016 order that denied
his petition for post-conviction relief (PCR). The trial court
entered the order after conducting an evidentiary hearing on some
of the issues defendant raised in his PCR petition. For the
following reasons, we affirm.
In June 2010, a jury found defendant guilty of two counts of
aggravated manslaughter, one count of conspiracy, and two weapons
offenses, for killing two victims in a drive-by shooting. The
trial court merged the conspiracy count and one weapons offense
at sentencing, and sentenced defendant to serve an aggregate prison
term of life plus thirty years on the remaining counts.
The proofs the State developed at trial to establish defendant
was the drive-by shooter included the co-defendant's testimony,
testimony of a man who heard defendant admit the shooting shortly
after it occurred, and abundant circumstantial evidence. The
facts the State established are comprehensively detailed in our
decision on defendant's direct appeal. We affirmed his conviction
and sentence, State v. Harrity, No. A-3060-10 (App. Div. Aug. 26,
2013), and the Supreme Court denied defendant's petition for
certification, State v. Harrity, 217 N.J. 294 (2014).
2 A-2385-15T3
A month after the Supreme Court denied defendant's petition
for certification, defendant filed a PCR petition in which he
raised the following arguments:1
POINT I
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
PRESENTING A THIRD PARTY GUILT[Y] DEFENSE,
WITHOUT INTERVIEWING WITNESSES DANYEL MORTON,
ANGELIMAR VARGAS, ANTHONY HARRIS, THE
PETITIONER AND KEVIN KELLEJAN TO ASSURE, THE
POSSIBILITY OF CREATING REASONABLE DOUBT AS
TO, THE PETITIONER'S GUILT EXIST WITHIN THE
AFOREMENTIONED DEFENSE, THEREBY, DEPRIVING
THE PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT II
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO REQUEST A 104 AND/OR 401 HEARING
CONCERNING THE ADMISSIBILITY AND/OR RELEVANCY
OF THIRD PARTY GUILT EVIDENCE, THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT III
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO INTERVIEW PETITIONER'S ALIBI
WITNESS, THEREBY, DEPRIVING THE PETITIONER[]
OF HIS RIGHTS TO HAVE DUE PROCESS AND
ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
PARA 10 OF THE N.J. CONST AND AMENDMENT V,
XIV, AND VI OF THE U.S. CONST.
1
All point headings enumerated in this opinion are taken verbatim
from defendant's PCR petition and briefs.
3 A-2385-15T3
POINT IV
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO INTRODUCE THE PETITIONER'S ALIBI
WITNESS, THEREBY, DEPRIVING THE PETITIONER OF
HIS RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE
OF COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF
THE N.J. CONST AND AMENDMENT V, XIV AND VI OF
THE U.S. CONST.
POINT V
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO INTERVIEW REBUTTAL WITNESS (WESLEY
HUNTER), THEREBY, DEPRIVING PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.
POINT VI
TRIAL COUNSELS PERFORMANCE WAS DEFICIENT FOR
FAILURE TO INTRODUCE REBUTTAL WITNESS (WESLEY
HUNTER), THEREBY, DEPRIVING PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV, AND VI OF THE
U.S. CONST.
POINT VII
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO OBJECT TO INFLAMMATORY AND/OR
UNCHARGED OTHER CRIMES EVIDENCE TESTIMONY OF
ANGELIMAR VARGAS CONCERNING, HER SISTER
(MARANGELIE VARGAS) ALLEGEDLY BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.
4 A-2385-15T3
POINT VIII
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE JURY WITH A CURATIVE INSTRUCTION
PERTAINING TO THE UNCHARGED OTHER CRIMES
EVIDENCE TESTIMONY OF ANGELIMAR VARGAS
CONCERNING, HER SISTER (MARANGELIE VARGAS)
ALLEGEDLY BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST AND AMENDMENT V,
XIV, AND VI OF THE U.S. CONST.
POINT IX
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO OBJECT TO THE PROSECUTOR'S
INFLAMMATORY CLOSING REMARKS CONCERNING THE
POSSIBILITY OF ANGELIMAR VARGAS BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV, AND VI OF THE
U.S. CONST.
POINT X
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE JURY WITH A CURATIVE INSTRUCTION
PERTAINING TO THE PROSECUTOR'S INFLAMMATORY
CLOSING REMARKS, CONCERNING, THE POSSIBILITY
OF ANGELIMAR VARGAS BEING SHOT, THEREBY,
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENT V, XIV AND VI OF THE U.S. CONST.
POINT XI
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO REQUEST A 104 AND/OR 403 HEARING
FOR THE PURPOSE TO EXCLUDE PREJUDICIAL
TESTIMONY OF ANGELIMAR AND MARRANGELIE VARGAS,
5 A-2385-15T3
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART I. PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.
POINT XII
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO OBJECT TO THE ADMISSION OF
IRRELEVANT AND/OR INFLAMMATORY TESTIMONY OF
MS. DESIREE KING, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV AND VI OF THE U.S. CONST.
POINT XIII
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE JURY WITH A CURATIVE INSTRUCTION
CONCERNING, THE IRRELEVANT AND/OR
INFLAMMATORY TESTIMONY OF MS. DESIREE KING,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.
POINT XIV
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO REQUEST A 104 AND/OR 401 HEARING
CONCERNING THE ADMISSIBILITY AND/OR RELEVANCY
OF MS. DESIREE KING TESTIMONY THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XV
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO REQUEST A 104 HEARING CONCERNING
6 A-2385-15T3
THE PROSECUTION'S IMPROPER PLACEMENT OF A
PROVISION IN THE PETITIONER'S CO-DEFENDANT
(ANTHONY HARRIS) PLEA AGREEMENT, WHICH
PREVENTED HIM FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.
POINT XVI
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO FILE A MOTION FOR DISMISSAL OF THE
PETITIONER INDICTMENT DUE TO, THE PROSECUTIONS
DELIBERATE DELAY TO FORMALLY CHARGE THE
PETITIONER FOR REASON TO GAIN TACTICAL
ADVANTAGE OVER HIM BY ESTABLISHING AN
CONDITIONAL PLEA AGREEMENT WITH WITNESS
(ANTHONY HARRIS) THAT, PREVENTED MR. HARRIS
FROM TESTIFYING IN FAVOR OF THE PETITIONER,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS, COMPULSORY PROCESS TO
OBTAIN WITNESSES IN HIS FAVOR AND THE AND
ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
PARA 10 OF THE N.J. CONST. AND AMENDMENTS V,
XIV AND VI OF THE U.S. CONST.
POINT XVII
TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO OBJECT TO THE ADMISSION OF NEW
JERSEY STATE POLICE DNA ANALYST, SHARON FRECK
TOOTELL TESTIMONY REGARDING, THE WORK
PERFORMED BY ANOTHER FORENSIC SCIENTIST,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO BE CONFRONTED WITH THE WITNESS AGAINST HIM;
AND TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENTS V, XIV AND VI OF
THE U.S. CONST.
7 A-2385-15T3
POINT XVIII
TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO OBJECT TO, THE TRIAL COURTS
DECISION TO CHARGE THE JURY WITH THE LESSER
INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER
WITHOUT A RATIONAL BASIS TO SUPPORT SAID
CHARGE, THEREBY DEPRIVING THE PETITIONER OF
HIS RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE
OF COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF
THE N.J. CONST. AND AMENDMENTS V, XIV AND VI
OF THE U.S. CONST.
POINT XIX
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR PRESENTING A
THIRD PARTY GUILT[Y] DEFENSE WITHOUT,
INTERVIEWING WITNESSES, DANYEL MORTON,
ANGELIMAR VARGAS, ANTHONY HARRIS, THE
PETITIONER AND KEVIN KELLEJAN, TO ASSURE, THE
POSSIBILITY OF CREATING REASONABLE DOUBT AS
TO, THE PETITIONER'S GUILT EXIST WITHIN THE
AFOREMENTIONED DEFENSE, THEREBY, DEPRIVING
THE PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XX
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST A 104 AND/OR 401 HEARING CONCERNING
THE ADMISSIBILITY AND/OR RELEVANCY OF THIRD
PARTY GUILT EVIDENCE, THEREBY DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.
8 A-2385-15T3
POINT XXI
APPELLATE COUNSEL'S PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILURE TO
OBJECT TO, INFLAMMATORY AND/OR UNCHARGED OTHER
CRIMES EVIDENCES TESTIMONY OF ANGELIMAR VARGAS
CONCERNING HER SISTER (MARANGELIE VARGAS)
ALLEGEDLY BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.
POINT XXII
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILURE TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO REQUEST
THE TRIAL COURT TO PROVIDE THE JURY WITH A
CURATIVE INSTRUCTION PERTAINING TO THE
UNCHARGED OTHER CRIMES EVIDENCE TESTIMONY OF
ANGELIMAR VARGAS CONCERNING, HER SISTER
(MARANGELIE VARGAS) ALLEGEDLY BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV, AND VI OF
THE U.S. CONST.
POINT XXIII
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILURE TO RAISE ON DIRECT APPEAL TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
OBJECT TO THE PROSECUTOR'S INFLAMMATORY
CLOSING REMARKS, CONCERNING THE POSSIBILITY OF
MS. ANGELIMAR VARGAS BEING SHOT, THEREBY,
DEPRIVING PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENT V, XIV, AND VI OF THE U.S. CONST.
9 A-2385-15T3
POINT XXIV
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO REQUEST
THE TRIAL COURT TO PROVIDE THE JURY WITH A
CURATIVE INSTRUCTION PERTAINING TO THE
PROSECUTOR'S INFLAMMATORY CLOSING REMARKS
CONCERNING, THE POSSIBILITY OF ANGELIMAR
VARGAS BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV, AND VI OF THE U.S. CONST.
POINT XXV
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST A 104 AND/OR 403 HEARING FOR THE
PURPOSE TO EXCLUDE PREJUDICIAL TESTIMONY OF
MS. ANGELIMAR AND MARANGELIE VARGAS'S, THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XXVI
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
OBJECT TO THE ADMISSION OF IRRELEVANT AND/OR
INFLAMMATORY TESTIMONY OF MS. DESIREE KING
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV, AND VI OF
THE U.S. CONST.
POINT XXVII
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
10 A-2385-15T3
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST THE TRIAL COURT TO PROVIDE THE JURY
WITH A CURATIVE INSTRUCTION CONCERNING THE
IRRELEVANT AND/OR INFLAMMATORY TESTIMONY OF
MS. DESIREE KING THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV AND VI OF THE U.S. CONST.
POINT XXVIII
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S FAILURE TO REQUEST A 104 AND/OR 401
HEARING CONCERNING THE ADMISSIBILITY AND/OR
RELEVANCY OF MS. DESIREE KING TESTIMONY,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART. 1 PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.
POINT XXIX
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRAIL
COUNSEL'S INEFFECTIVENESS FOR FAILURE TO
REQUEST A 104 HEARING CONCERNING THE
PROSECUTION'S IMPROPER PLACEMENT OF A
PROVISION IN THE PETITIONER'S CO-DEFENDANT
(ANTHONY HARRIS) PLEA AGREEMENT, WHICH,
PREVENTED HIM FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE AND ASSISTANCE OF COUNSEL IN VIOLATIONS
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XXX
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO FILE A
11 A-2385-15T3
MOTION FOR DISMISSAL OF THE PETITIONER
INDICTMENT DUE TO, THE PROSECUTIONS DELIBERATE
DELAY TO FORMALLY CHARGE THE PETITIONER FOR
REASON TO GAIN TACTICAL ADVANTAGE OVER HIM BY
ESTABLISHING AN CONDITIONAL PLEA AGREEMENT
WITH WITNESS (ANTHONY HARRIS) THAT, PREVENTED
MR. HARRIS FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE AND ASSISTANCE OF COUNSEL IN VIOLATIONS
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XXXI
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, THE
TRIAL COURT ABUSE OF DISCRETION FOR ADMITTING
INFLAMMATORY AUTOPSY PHOTOS OF ALEJANDRO SOTO,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART. 1 PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.
POINT XXXII
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, THE
TRIAL COURTS ABUSE OF DISCRETION FOR FAILING
TO DISMISS COUNT THREE OF THE INDICTMENT
AND/OR THE INDICTMENT IN IT'S ENTIRETY, FOR
FAILURE TO ALLEGE THE NAME OF CO-CONSPIRATOR
PETITIONER ALLEGEDLY CONSPIRED WITH, THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XXXIII
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILURE TO RAISE ON DIRECT APPEAL, THE
TRIAL COURT'S ERROR FOR FAILING TO FASHION A
12 A-2385-15T3
REQUESTED ORDER TO SANITIZE 404(B) OTHER
CRIMES EVIDENCES TESTIMONY CONCERNING, THE
PETITIONER'S ALLEGED ATTEMPT TO PURCHASE AN
AK-47 ASSAULT RIFLE, THEREBY DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF
ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
POINT XXXIV
APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
ON DIRECT APPEAL FOR FAILING TO DEMONSTRATE
THE POSSIBLE CONTAMINATION OF DNA EVIDENCE
AND/OR MALFUNCTION OF MS. JENNIFER THAYER'S
EQUIPMENT WHILE PERFORMING HER DNA ANALYSIS
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; AND TO HAVE DUE PROCESS AND
ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
PARA 10 OF THE N.J. CONST. AND AMENDMENTS V,
XIV AND VI OF THE U.S. CONST.
POINT XXXV
APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO FILE ON DIRECT APPEAL, A MOTION
FOR RECONSIDERATION OF THE APPELLATE
DIVISION'S OPINION CONCERNING THE APPELLATE
DIVISION'S MISINTERPRETATION OF CASE LAW
AND/OR FACTS OF THE PETITIONER'S CASE THEREBY,
DEPRIVING PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS AND ASSISTANCE OF COUNSEL IN VIOLATION
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.
(A) THE APPELLATE DIVISION THAT, DEFENSE
COUNSEL FAILURE TO SPECIFICALLY OBJECT TO
404(B) OTHER CRIMES EVIDENCE (AK-47 TESTIMONY)
WAS A TACTICAL DECISION WHICH CONTRIBUTED TO
REASON FOR SUPPORTING THE TRIAL COURT'S
OMISSION TO PROVIDE THE JURY WITH AN LIMITING
INSTRUCTION CONCERNING SAID 404(B) EVIDENCE
WAS ERROR, DUE TO THE FACT, THE RECORD
ESTABLISHED DEFENSE COUNSEL REQUESTED THE
13 A-2385-15T3
TRIAL COURT TO PROVIDE THE JURY WITH AN
LIMITING INSTRUCTION PERTAINING TO THE 404(B)
EVIDENCE IN QUESTION.
The court appointed counsel for defendant, and counsel filed
a brief in which he raised these arguments:
POINT I
STANDARDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
MR. HARRITY'S TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO CONDUCT A PROPER INVESTIGATION.
POINT III
MR. HARRITY'S TRIAL COUNSEL DID NOT PRESENT
MR. HARRITY'S ALIBI WITNESS.
POINT IV
MR. HARRITY'S TRIAL COUNSEL'S FAILURE TO
ATTEMPT TO PREVENT OR ASK THE TRIAL COURT TO
REMEDY SEVERAL INSTANCES OF PROSECUTORIAL
MISCONDUCT DEPRIVED MR. HARRITY OF HIS RIGHT
TO A FAIR TRIAL.
A. MR. HARRITY'S TRIAL COUNSEL SHOULD
HAVE OBJECTED TO THE PROSECUTOR'S
SUGGESTION THAT ANGELIMAR VARGAS
MIGHT HAVE BEEN SHOT.
B. MR. HARRITY'S TRIAL ATTORNEY SHOULD
HAVE ASKED FOR A CURATIVE
INSTRUCTION AFTER ANGELIMAR VARGAS
SAID HER SISTER WAS SHOT.
C. MR. HARRITY'S TRIAL ATTORNEY SHOULD
HAVE OBJECTED TO THE PROSECUTOR'S
DECISION TO INTRODUCE DESIREE KING
AS A WITNESS.
14 A-2385-15T3
POINT V
MR. HARRITY'S TRIAL COUNSEL SHOULD HAVE
OBJECTED TO INADMISSIBLE HEARSAY.
POINT VI
THE CUMULATIVE EFFECT OF ALL OF MR. HARRITY'S
TRIAL COUNSEL'S ERRORS CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL.
The trial court granted defendant an evidentiary hearing as
to trial counsel's failure to interview alibi witnesses and present
their testimony at trial. Following the hearing, the court
delivered an oral opinion from the bench on January 8, 2016, and
denied defendant's PCR petition. As previously noted, defendant
appealed from the implementing order.
During the PCR hearing, defendant testified his defense at
trial was he was not present when the victims were shot. He
intended to establish his alibi through the testimony of Ashley
Petty. Defendant was aware Petty had testified before the grand
jury. His plan, and, according to him, his trial attorney's
strategy, was to produce her as an alibi witness. His trial
attorney filed a notice of alibi with the court and defendant
never changed his mind about presenting Petty's testimony.
Defendant claimed Petty had been subpoenaed for his trial and
physically appeared in court. Nonetheless, his attorney never
called her as a witness. According to defendant, at trial, the
15 A-2385-15T3
State rested its case on a Friday. His trial attorney then rested
without calling any witnesses. As defendant was being taken to
the county jail, he told his trial counsel he wanted to talk to
her. He was taken to the "bullpen" and then told he was going to
be transported to the jail. When he said his attorney was coming
to speak with him, he was told his attorney left. He was
transported to county jail without speaking with his attorney.
When he returned to court on Monday, defendant said to his
attorney, "[y]ou rested the case. Why did you rest the case? You
[did not] call my alibi witness." Defendant claimed his attorney
seemed surprised. She said, "Alibi?" Defendant replied, "[y]eah,
. . . the one you gave the notice of alibi, the one you subpoenaed."
The attorney said, "oh, yeah, . . . I was supposed to call her."
When defendant told the attorney to "[g]o out there and call her,"
she said, "I rested my case already. I can't call her." When
defendant said "unrest your case," his attorney replied, "I can't."
Defendant angrily replied, "[t]hat . . . just got me convicted.
You . . . just got me convicted . . . because you argued that I
wasn't there. You argued I wasn't at the scene of the crime. My
alibi witness. . . . [t]hat go[es] hand-in-hand with my alibi
witness." Defendant claims his attorney responded that he was
right.
16 A-2385-15T3
Defendant did not discuss the issue with his attorney between
the time the jury returned its verdict and the time he was
sentenced. His reason for not again raising the issue was he felt
his attorney had spoken, and his attorney said there was nothing
that could be done, so in his mind there was nothing more to say.
Defendant's trial attorney testified to a different account
of events. The attorney was experienced; she had been admitted
to the practice of law since 2001 and ninety-percent of her
practice was criminal law. She was a former prosecutor.
According to the attorney, she had extensive discussions with
defendant concerning the proposed alibi witness. She had reviewed
material in discovery that suggested to her Ashley Petty was a
"concocted alibi witness." From her review of the grand jury
transcripts, she did not believe Petty would be a credible alibi
witness. Petty had testified before the grand jury that on May
27, the day of the shootings, she had been with defendant on and
off. She also gave testimony that could be viewed as helpful to
the State.
Defendant's trial counsel recalled telling defendant if an
alibi witness is not strong and cannot say "you were at this
particular place at this particular time," then "a lot of times
it can come off in front of a jury as sort of an ali-lie witness."
Counsel explained she made the strategic recommendation not to
17 A-2385-15T3
call Petty. Nonetheless, had defendant insisted upon presenting
Petty's testimony, counsel would have called Petty as a witness.
During cross-examination, defendant's trial counsel
elaborated on her strategic decision. She did not think Petty
would help defendant's case. She pointed out that despite her
testimony before the grand jury, defendant was nonetheless
indicted.2
As previously noted, the court denied defendant's PCR
petition. In an oral decision delivered from the bench on January
8, 2016, the court rejected defendant's arguments that trial
counsel had failed to investigate four witnesses. The court noted
defendant had failed to provide affidavits or certifications for
many of the witnesses. Defendant did produce a statement from
Anthony Harris, but the statement, according to the court,
"mirrored the testimony he gave at trial, which was that
[defendant's brother] was not involved in the deaths." In short,
defendant failed to show an investigation of Harris would have
revealed anything Harris had not previously told investigators.
Harris's statements to investigators were provided during
discovery.
2
Although Petty testified before a grand jury in June 2004, the
indictment containing the charges on which defendant was tried was
returned in September 2007.
18 A-2385-15T3
The court determined, from reviewing trial transcripts,
defense counsel reasonably argued that descriptions of the
shooters given by witnesses fit defendant's brother and Harris.
The court determined defense counsel had clearly challenged the
identification of defendant as a perpetrator, a reasonable trial
strategy.
After recounting the PCR testimony given by defendant and his
trial counsel, the court found trial counsel's testimony
"exceedingly credible." The court found "reasonable that given
the weight of evidence and direct contradiction of Ashley Petty's
grand jury testimony, defense counsel . . . strategically decide[d]
not to call her as an alibi witness." The court determined defense
counsel's decision was sound. The court also determined
defendant's testimony at the PCR hearing was not credible.
Further, the court found defendant had "failed to show how
his representation was prejudiced by this decision or how his
outcome would have been different had Ms. Petty been called as a
witness and subjected to cross-examination."
Next, the court rejected defendant's argument that the
prosecutor's misconduct in making unduly prejudicial statements
during his summation deprived defendant of a fair trial. The
court concluded that several fleeting statements by the
19 A-2385-15T3
prosecutor, even if improper, did not prevent defendant from
receiving a fair trial.
The court rejected some of defendant's other arguments based
on their having been decided on direct appeal. Lastly, the court
concluded that defendant's counsel on direct appeal was not
ineffective for failure to raise certain meritless arguments, and
for deciding to seek certification from the Supreme Court rather
than file a motion for reconsideration with the Appellate Division.
Having concluded defendant failed to establish a prima facie
ineffective-assistance-of-counsel claim, the court denied
defendant's petition.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE
OF COUNSEL WHERE TRIAL COUNSEL FAILED TO
ADEQUATELY INVESTIGATE DEFENDANT'S ALIBI
DEFENSE AND FAILED TO CALL THAT WITNESS TO
TESTIFY AT TRIAL.
In a pro se supplemental brief, defendant argues:
POINT I
THE TRIAL COURT ERRED IN FINDING THAT THE
PETITIONER['S] TRIAL COUNSEL WAS NOT
INEFFECTIVE FOR FAILING TO INTRODUCE THE
PETITIONER'S ALIBI WITNESS IN THE PETITIONER'S
DEFENSE.
POINT II
THE TRIAL COURT ERRED IN FINDING THAT THE
PETITIONER FAILED TO ESTABLISH A PRIMA FACIE
20 A-2385-15T3
CLAIM FOR INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL FOR FAILING TO FILE A MOTION OF
RECONSIDERATION TO THE APPELLATE DIVISION
CONCERNING THE APPELLATE DIVISION
MISINTERPRETATION OF THE FACTS REGARDING THE
PETITIONER'S CASE.
POINT III
THE TRIAL COURT ERRED BY FAILING TO RENDER AN
OPINION CONCERNING INEFFECTIVE ASSISTANCE OF
TRIAL AND APPELLATE COUNSEL CLAIMS RAISED IN
THE PETITIONER'S AMENDED VERIFIED PETITION AND
LISTED IN THE PETITIONER'S P.C.R. COUNSEL'S
BRIEF.
To prove trial counsel was ineffective, a defendant must
satisfy the Strickland two-part test by demonstrating "counsel's
performance was deficient," that is, “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment;" and "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v.
Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima
facie claim of ineffective assistance of counsel, they are entitled
to a hearing on their claims. R. 3:22-10(b); State v. Preciose,
129 N.J. 451, 462 (1992).
21 A-2385-15T3
The decision of which witnesses to call at trial is generally
a strategic determination within counsel's discretion. State v.
Coruzzi, 189 N.J. Super. 273, 323 (App. Div.), certif. denied, 94
N.J. 531 (1983). In fact, our Supreme Court has recognized that
"[d]etermining which witnesses to call to the stand is one of the
most difficult strategic decisions that any trial attorney must
confront." State v. Arthur, 184 N.J. 307, 320 (2005). The
attorney must consider, among other things, "whether the witness's
testimony will be subject to effective impeachment by prior
inconsistent statements or other means, . . . whether the trier
of fact is likely to find the witness credible, and a variety of
other tangible and intangible factors." Id. at 321. For these
reasons, "a defense attorney's decision concerning which witnesses
to call to the stand is 'an art,' and a court's review of such a
decision should be 'highly deferential.'" Ibid. (citation
omitted). "As a general rule, strategic miscalculations or trial
mistakes are insufficient to warrant reversal except in those rare
instances where they are of such magnitude as to thwart the
fundamental guarantee of [a] fair trial." State v. Castagna, 187
N.J. 293, 314-15 (2006) (alteration in original) (citation
omitted).
22 A-2385-15T3
Here, defendant's trial counsel made a strategic decision not
to call Petty as a trial witness. Counsel evaluated Petty's grand
jury testimony, considered her testimony in view of the State's
proofs and the discovery material the State had provided, and
determined the jury would not find Petty credible. Defense
counsel's ultimate decision not to call Petty as a witness was a
strategic decision based on the "art" of defense, and is entitled
to our "highly deferential" review. Arthur, supra, 184 N.J. at
321. Even if defense counsel's strategy is in hindsight deemed
to be a miscalculation, it certainly does not warrant reversal,
as it does not fall into a rare instance where the miscalculation
is "of such magnitude as to thwart the fundamental guarantee of
[a] fair trial." Castagna, supra, 187 N.J. at 315 (alteration in
original) (citation omitted). Accordingly, we reject defendant's
claim that his trial counsel's failure to call Petty constituted
ineffective assistance.
We have considered defendant's remaining arguments in light
of the record and prevailing legal principles and have found them
to be without sufficient merit to warrant further discussion. R.
2:11-3(e)(2).
Affirmed.
23 A-2385-15T3