STATE OF NEW JERSEY VS. JOEL S. HESTER (11-04-0652, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3939-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOEL S. HESTER, a/k/a
JOEWELL A. HESTER,
Defendant-Appellant.
____________________________
Submitted December 20, 2017 – Decided February 27, 2019
Before Judges Fuentes and Koblitz
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-04-0652.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven E. Braun, Designated Counsel, on the
brief).
Robert D. Laurino, Acting Essex County Prosecutor,
attorney for respondent (Camila Garces, Special
Deputy Attorney General/Acting Assistant Prosecutor;
of counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Joel Hester was tried before a jury and convicted of murder,
N.J.S.A. 2C:11-3(a)(1), second degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b), and second degree possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39-4(a). On December 17, 2012, the trial court merged
the murder conviction with the second degree handgun conviction and sentenced
defendant to a term of forty years, with thirty years of parole ineligibility. The
court also sentenced defendant to a concurrent ten-year term with five years of
parole ineligibility on the conviction for second degree unlawful possession of
a handgun.
We affirmed defendant's conviction on direct appeal, State v. Joel Hester,
No. A-3066-12 (App. Div. October 3, 2014), and the Supreme Court denied his
petition for certification. See State v. Hester, 221 N.J. 219 (2015). In lieu of
restating the evidence presented by the State at trial, we incorporate by reference
the facts we described in our unpublished opinion affirming defendant's
conviction. Hester, slip op. at 2-5.
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On March 23, 2015, defendant filed a pro se petition for post-conviction
relief (PCR), arguing ineffective assistance of trial counsel. The PCR judge1
appointed an attorney to represent defendant. PCR counsel thereafter amended
defendant's petition and submitted a brief in which he argued defendant's trial
attorney: (1) failed to call an alleged alibi witness; (2) failed to present a traffic
video that would have allegedly corroborated defendant's alibi defense; (3)
failed to request an identification charge that tracked the Supreme Court's
holding in State v. Henderson, 208 N.J. 208 (2011); and (4) failed to introduce
into evidence a photograph of a man known as "Dizzle," who allegedly
resembles defendant.
After considering the arguments of counsel on December 22, 2015, the
PCR judge found sufficient grounds to conduct an evidentiary hearing. The
judge conducted the evidentiary hearing on February 22, 2016. PCR counsel
called four witnesses: defendant's trial counsel; Cysa Williams, an alleged alibi
witness; Francis J. Reilly, an investigator employed by the Public Defender's
Office; and defendant. The judge also viewed a traffic video that defendant
claimed showed he was present in a different location at the time of the murder.
1
The judge assigned to adjudicate the PCR petition was not the same judge who
presided over the trial.
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On April 1, 2016, the PCR judge denied defendant's petition. In a
memorandum of opinion, the judge found defendant did not satisfy the two-
prong standard for ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 687 (1984). In this appeal, defendant raises the
following arguments.
POINT I
TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
BECAUSE SHE FAILED TO REQUEST THAT THE
COURT PROVIDE A JURY INSTRUCTION BASED
UPON STATE V. HENDERSON, 208 N.J. 208 (2011)
REGARDING THE INDENTIFICATION OF
DEFENDANT BY THE VARIOUS WITNESSES
WHO TESTIFIED ON BEHALF OF THE STATE.
POINT II
TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
FOR NOT INTRODUCING INTO EVIDENCE THE
PHOTOGRAPHS OF DEFENDANT AND "DIZZLE"
TO DEMONSTRATE THIRD-PARTY GUILT.
POINT III
THE PCR COURT SHOULD HAVE GRANTED THE
PETITION FOR POST-CONVICTION RELIEF UPON
CONCLUSION OF THE EVIDENTIARY HEARING
REGARDING CYSA WILLIAMS AND BECAUSE
OF THE FAILURE TO PRESENT THE VIDEOTAPE
TO THE JURY.
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Defendant also filed a pro se supplemental brief raising the
following arguments:
POINT I
AT THE PCR EVIDENTIARY HEARING THE
DEFENDANT DID PRESENTED [SIC] A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL WARRANTING POST-CONVICTION
RELIEF.
POINT II
TRIAL COUNSEL ABANDON ITS DUTY OF
LOYALTY AND RENDER DEFENDANT
INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
COUNSEL DISCREDIT DEFENDANT ALIBI
WITNESS BASED ON THE 9:00 TO 9:30 TRAFFIC
STOP THEORY. [SIC]
POINT III
THE PCR COURT OVERLOOKED DEFENDANT
BROTHER MASSARAH DIRECT TESTIMONY
WHICH ESTABLISHED THAT HE WAS NEVER IN
THE PRESENT OF HIS BROTHER JOEL WHEN
JOEL WAS COMMUNICATING WITH MS.
WILLIAMS AND HER FRIEND AMANDA. [SIC]
These arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add only the following brief comments. We
acknowledge that the PCR judge did not address defendant's argument regarding
trial counsel's failure to request a jury instruction based on Henderson.
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However, this omission by the judge is legally inconsequential. Defendant's
trial began on July 10, 2012. The record shows defense counsel requested a
Henderson jury instruction at the charge conference held on July 19, 2012,
pursuant to Rule 1:8-7(b). However, the Henderson jury charge did not become
effective until September 4, 2012. Henderson, 208 N.J. at 302.2 With respect
to Argument Point II, although the actual photograph was not admitted into
evidence, trial counsel showed "Dizzle's" photograph to witnesses who testified
at trial in support of defendant's third-party defense strategy. Only one witness
recognized Dizzle, but denied he had any involvement in the victim's demise.
The remaining arguments were addressed and properly rejected by the PCR
judge.
Affirmed.
2
See also Model Jury Charges (Criminal), "Identification: Out-of-Court
Identification Only" (effective Sept. 4, 2012).
https://www.njcourts.gov/attorneys/assets/criminalcharges/idinout.pdf
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