STATE OF NEW JERSEY v. JOHN HARCHAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0617-03T30617-05T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOHN HARCHAR,

Defendant-Respondent.

________________________________________________________________

 

Submitted March 21, 2006 - Decided March 31, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex

County, Indictment No. 1545-11-95.

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for appellant

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Robert

Seelenfreund, Assistant Deputy

Public Defender, of counsel and

on the brief).

PER CURIAM

The State convicted defendant, John Harchar, of a second-degree robbery of an Edison Dairy Queen. After exhausting all direct appeals, defendant petitioned for Post-Conviction Relief (PCR), which was granted by Judge Jane Cantor. The State appealed, contending that the judge granted PCR solely because defense counsel "could have presented better evidence to support the defense." We disagree and affirm.

In September 1995, defendant allegedly threatened a Dairy Queen clerk with a knife and stole approximately $300 from the cash register. Shortly thereafter, the clerk helped the police generate a composite likeness of the thief. About three days later, officer Katana told the investigating officer that the composite resembled defendant. The police created a photographic array, which included defendant's photograph, and the clerk selected defendant's picture from the array. The next day a patrolman arrested defendant at his home, six days after the robbery.

In response to the clerk's request, another photo array was developed with defendant's picture in the same sequence as the first array. The clerk again identified defendant as the thief.

Defendant's trial focused on identification because the individual depicted in the composite likeness had long hair and defendant allegedly wore his hair short, at and near the time of the robbery. In support of this defense, defendant presented evidence from his mother and the lawyer who had previously represented him in this robbery charge. Defendant's mother testified that her son had worn his hair short for the last fifteen or twenty years. Defendant's prior lawyer testified that defendant never wore his hair shoulder length, as depicted in the composite drawing.

There was other evidence during trial that raised identification issues. For example, the clerk's description of the thief did not mention his complexion. Yet, the trial judge noted that the "first thing" you notice about defendant is "bad skin," that "kind of jumps out at you." The only photographs admitted into evidence, however, were the two pictures used in the photo array.

Defendant did not testify at trial. He did, however, show his teeth to the jury to rebut the clerk's testimony that the thief's teeth were very black. Defendant's former attorney testified that while defendant's teeth were "mildly discolor[ed]," they were certainly "not black."

Officer Katana testified at trial that she was "almost positive" that the composite drawing depicted defendant. She also claimed to have seen defendant with short and long hair and that she had last seen him with long hair the first three months of 1995.

At the PCR hearing conducted by Judge Cantor, defendant's trial counsel remembered "[v]ery very little" about the facts of the case. He explained that "[i]t's been . . . over ten years[,] I don't remember to the best of my recollection the specifics of the case."

Defendant testified at the PCR hearing and identified a photograph that was taken in July 1995 upon his release from the Middlesex County Adult Correction Center (MCACC), about two months before the robbery of the Dairy Queen. The picture showed defendant with short hair. Other photos from diverse dates were identified to demonstrate that defendant consistently kept his hair short. Defendant's arrest photograph, which was also admitted into evidence, depicts defendant's hair as short. Defendant also claimed to have been incarcerated from January through March when officer Katana said she had seen him with long hair.

The standard for evaluating ineffective assistance of counsel is well developed. Defendant is not entitled to "the best of attorneys," but is entitled to an attorney that is not "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989); accord State v. Fisher, 156 N.J. 494, 500 (1998). To deem assistance ineffective, counsel's performance must first be deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The representation must be so deficient as to have "undermined the reliability" of the proceeding, U.S. v. Cronic, 466 U.S. 648, 659 n. 26, 104 S. Ct. 2039, 2047 n. 26, 80 L. Ed. 2d 657, 668 n.26 (1984), and must amount to more than mere failures of tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Second, to be entitled to PCR, 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, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 58 (1987).

In this case, Judge Cantor first noted defendant's allegations of a "series of errors committed by trial counsel." She recognized, however, that it was "difficult to assess the precise effect any specific evidence would have had on the minds of a jury." But, in the judge's view, the most serious allegation was "the failure to obtain and introduce to the jury an MCACC termination photo of the defendant with short hair taken . . . two months prior to the robbery."

The judge found that this photograph "taken within months of the incident would be a strong piece of evidence exculpating the defendant. Although he could have worn a wig the night of the incident, it is unlikely that his hair would have grown to shoulder length from July to September." The judge, therefore, found "error in not securing the recent photograph from a clearly documented time to be ineffective assistance of counsel." The judge felt the error was "especially aggravated where other details were left out of the original composite," such as the thief's complexion and teeth condition. Therefore, the judge found "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Accordingly, she granted PCR.

Although the State argues that the judge misapplied the PCR standards, we disagree. Our review of the judge's decision in light of the record and the pertinent law leads us to conclude that the judge properly applied the facts to the pertinent law. Consequently, we affirm substantially for the reasons stated by Judge Cantor in her clear and persuasive May 6, 2005 written decision.

 
Affirmed and remanded for a new trial.

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6

A-0617-05T3

March 31, 2006