STATE OF NEW JERSEY VS. ERIK JONES (12-03-0471, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0059-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIK JONES, a/k/a ERIC TAYLOR,
Defendant-Appellant.
Submitted June 6, 2018 – Decided August 13, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
12-03-0471.
Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew R. Burroughs, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Svjetlana Tesic,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Erik Jones appeals the July 13, 2017 Law Division
order denying his petition for post-conviction relief (PCR). For
the reasons stated by Judge Patrick J. Arre, we affirm with only
brief comments.
Defendant was indicted for first-degree murder, N.J.S.A.
2C:11-3(a)(1) or 2C:11-3(a)(2), second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). He
was convicted of only the third count of the indictment. On
November 22, 2013, defendant was sentenced to an extended term of
twenty years subject to ten years parole ineligibility as a
persistent offender, N.J.S.A. 2C:43-6(c) and 2C:44-3(d), among
other reasons.
The State's key proofs at trial included a videotaped police
interview of an eyewitness, G.L., inculpating defendant. G.L.
refused to testify at trial. The court admitted the statement
over defendant's objection after a pretrial hearing pursuant to
N.J.R.E. 804(b)(9).
The State also presented the testimony of T.B., who was then
in a relationship with defendant. She said that in late July
2011, around the time of the murder, defendant came to her
apartment carrying a black or blue bag. T.B.'s description of it
was similar to the bag G.L. said held the firearm defendant
allegedly used on the night of the killing. Defendant left the
bag in a closet in T.B.'s apartment. In his absence, she looked
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inside and saw a handgun and some clothes. Defendant returned for
it some hours later.
On defendant's unsuccessful direct appeal, he argued
prosecutorial misconduct and that the court erred in its sentence.
State v. Jones, No. A-3367-13 (App. Div. Mar. 28, 2016) (slip op.
at 6-7). In a pro se brief, defendant challenged the sufficiency
of the evidence supporting his conviction, and suggested the trial
court should have "mold[ed] the jury verdict to one sustainable
on the [proofs] adduced at trial, and impose [a] sentence within
the third[-]degree range." Id. at 7 (second, third, and fourth
alterations in original). The Supreme Court denied defendant's
petition for certification. State v. Jones, 227 N.J. 38 (2016).
Defendant's PCR petition followed.
During the PCR evidentiary hearing, the State called
defendant's trial attorney and appellate counsel. Defendant's
trial attorney then indicated that T.B. was subpoenaed but had not
appeared. Judge Arre allowed defendant "to submit a proffer as
to his request to present [T.B.'s] testimony," and would "consider
[his] supplemental petition . . . and the State's supplemental
brief." In the supplemental brief, defendant argued that T.B.
should have been cross-examined about the nature of the object
that she saw in the bag.
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Trial counsel testified that she did speak to T.B. on the
phone before trial, and that neither she nor defendant at any time
questioned whether the item in the bag was a genuine firearm.
Trial counsel also said she did not want to risk eliciting false
testimony by flatly asking T.B. if she was certain the gun was
real, as opposed to an imitation object "or even a water pistol"
as PCR counsel contended. Although not entirely clear from
defendant's proffer, it seems as if he intended to attack trial
counsel's representation for failing to question T.B.'s testimony
that the item was a handgun.
Now on appeal, defendant raises the following points:
POINT I
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL.
(1) Trial counsel was ineffective by failing
to cross-examine [T.B.] on what she observed
in Defendant's bag.
(2) Trial counsel was ineffective by failing
to argue during summation that the State did
not prove beyond a reasonable doubt that
Defendant possessed a handgun.
(3) Trial counsel failed to object to the
trial court's erroneous and misleading jury
instruction on possession of a handgun.
(4) Trial counsel was ineffective for failing
to request a mistrial and ask the trial judge
to recuse himself.
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(5) Trial counsel's cumulative errors
deprived Defendant of his constitutional right
to effective assistance of counsel.
POINT II
AS THE PCR COURT WAS WRONG WHEN IT RULED THAT
APPELLATE COUNSEL WAS NOT INEFFECTIVE AND THAT
THE MATTER WAS PROCEDURALLY BARRED.
POINT III
THE PCR COURT ERRED BY FAILING TO PERMIT
DEFENDANT TO PRESENT THE TESTIMONY OF T.B.
. . . AT THE EVIDENTIARY HEARING.
We address defendant's third point first. The record does
not support the claim that in any way the judge prevented defendant
from calling T.B. as a witness. Although the State objected to
her testimony, the judge deferred a decision on the objection
until such time as T.B. appeared. She never appeared, and the
judge therefore allowed defendant to make a written proffer
regarding her proposed testimony.
With regard to defendant's second point, it is barred by Rule
3:22-5.1 It was not ineffective for appellate counsel not to
advance defendant's meritless argument that the court should have
"molded" the jury's verdict to a third-degree conviction.
Defendant in his pro se brief, however, did raise the issue, and
we found the argument so lacking in merit as to not warrant
1
Rule 3:22-5 bars from consideration arguments which were
previously adjudicated.
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discussion in a written opinion. Jones, slip op. at 7, 20; R.
2:11-3(e)(2).
Turning now to defendant's multi-part first point, Judge Arre
correctly held that strategic decisions, such as those made by
trial counsel regarding T.B.'s testimony, are not subject to attack
by way of PCR. See State v. Marshall, 148 N.J. 89, 312 (1997).
Furthermore, given the trial context that counsel was defending a
murder charge as well as a possession of a weapon for an unlawful
purpose, her failure to cast doubt on the nature of the object was
reasonable. As Judge Arre noted, although counsel did not cast
doubt through T.B. regarding the nature of the object, she
certainly cast doubt on T.B.'s overall credibility and the
reliability of her testimony. Thus, this point lacks merit because
it is not cognizable by way of PCR.
With regard to the objected-to trial judge's interactions
with defendant, we note they occurred pretrial, during a break in
the proceedings in the absence of the jury, and on one occasion
in the presence of the jury when defendant audibly interjected
while a defense witness was testifying. The single instance that
took place in the presence of the jury was not so egregious as to
have affected the outcome. Based on our review of the record, it
is clear the judge's responses would not prejudice the jury.
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The trial judge condensed the relevant Model Jury Charge for
reasons not clear from the record, stating:
The first element the State must prove
beyond a reasonable doubt is that there was a
handgun.
And under our law a handgun is any
pistol, revolver or firearm designed or
manufactured to be fired by the use of a single
hand. Okay?
The Model Charge provides two far more detailed options.
[A] handgun is any pistol, revolver or other
firearm originally designed or manufactured to
fire or eject any solid projectile, ball,
slug, pellet, missile or bullet, or any gas,
vapor or other noxious thing, by means of a
cartridge or shell or by action of an
explosive or the igniting of flammable or
explosive substances by the use of a single
hand.
(OR)
[A] handgun is any pistol, revolver or other
firearm in the nature of an air gun, spring
gun or pistol of similar nature in which the
propelling force is a spring, elastic band,
carbon dioxide, compressed, or other gas or
vapor, air or compressed air, or is ignited
by compressed air, which was originally
designed or manufactured to be fired by the
use of a single hand and to eject a bullet or
missile smaller than three-eighths of an inch
in diameter, with sufficient force to injure
a person.
[Model Jury Charges (Criminal), "Unlawful
Possession of a Handgun (N.J.S.A. 2C:39-5(b))"
(rev. Feb. 26, 2001) (citations omitted).]
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We do not think the judge's condensed version had any significant
effect on the outcome.2 The judge varied from the Model Jury
Charge, but instructed the jury as to all the requisite elements
of the crime. Model jury charges are not "cast . . . in stone."
State v. W.B., 205 N.J. 588, 621 (2011). Although we do not
endorse condensing a charge in this way, there was no suggestion
at any time during the trial that the object T.B. saw in the bag
and G.L. claimed he saw defendant employ was anything but a
handgun. Thus, the condensed version of the instruction served
the purpose.
Finally, defendant claims the cumulative effect of counsel's
errors warrants reversal of the judge's denial of PCR. We
disagree, as no error whatsoever was committed.
Affirmed.
2
We also note that this argument could have and should have been
raised on the direct appeal and is arguably therefore barred by
Rule 3:22-4.
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