STATE OF NEW JERSEY v. SHAWN JULY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5154-07T45154-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN JULY,

Defendant-Appellant.

________________________________

Argued April 20, 2010 - Decided July 26, 2010

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

99-07-2486.

Patryk J. Chudy, Designated Counsel, argued

the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Mr. Chudy, on the brief).

Lucille M. Rosano, Assistant Essex County

Prosecutor, argued the cause for respondent

(Robert D. Laurino, Acting Prosecutor, attorney;

Ms. Rosano, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of his contentions advanced on appeal, we reverse and remand for further proceedings.

A jury convicted defendant in 2001 of aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense of murder, N.J.S.A. 2C:11-3a(1)(2); unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to an aggregate term of twenty years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed his convictions and sentence in an unpublished opinion, State v. July, No. A-5319-01T4 (App. Div. Oct. 18, 2004). The Supreme Court denied certification. 182 N.J. 629 (2005). Defendant filed a PCR petition in March 2005. Counsel was assigned to represent defendant in connection with that petition. He prepared a brief and presented oral argument in support of defendant's contention that he had not received effective representation from his trial attorney. The trial court denied defendant's petition, and this appeal followed. Defendant makes the following arguments on appeal:

I. THE TRIAL COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL

A. Trial Counsel Failed to Adequately Investigate and Cross-Examine a Key Witness About Additional Pending Charges

B. Trial Counsel Failed to Properly Investigate Facts and Witnesses

C. Trial Counsel Failed to Call Certain Witnesses

II. THE TRIAL COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF BASED ON THE DENIAL OF DUE PROCESS FOR FAILURE TO DISCLOSE BRADY INFORMATION.

In our previous opinion, we summarized the evidence presented at trial in the following manner:

The State's theory of the case was that defendant shot and killed Akie Robertson in a dispute over territory for drug dealing. The State presented evidence that defendant and Michael Richardson were engaged in selling narcotics at the intersection of North Fourteenth Street and Sixth Avenue in Newark. Shortly before 2:00 a.m. on August 18, 1998, Akie Robertson and John Bradberry, also known as Kool-Aid, arrived at the intersection with a similar intent. Defendant and Richardson objected to Robertson and Bradberry, who were from Orange, selling drugs from this Newark location. Richardson went to remonstrate with them while defendant went to retrieve a gun. When defendant returned, Richardson was being beaten by Kool-Aid. Defendant pulled out the gun and fired several shots, one of which struck Robertson in the back of the head, killing him. Defendant and Richardson both fled the scene.

Defendant was not apprehended until several years later, when Richardson, who had had a falling out with defendant, implicated him in this shooting. When Richardson testified at defendant's trial, he had thirteen prior convictions and was awaiting trial on a charge of carjacking.

Defendant denied any involvement in this incident. He presented several witnesses who were on the scene who testified defendant was not present. One testified that she saw Richardson pull a gun as well as another individual she identified as Puggs. She said Richardson and Puggs began shooting. Defendant also testified. Although he admitted he had sold drugs from that spot for a brief period of time, he maintained he was not on the scene when Robertson was killed.

[Slip op. at 2-3.]

We note first the well-established principles governing our review. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The defendant must show that there is 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. This two-pronged standard has been expressly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant, in his PCR brief, focused his argument on two principal contentions: that at the time Richardson testified against defendant he had additional pending charges beyond those which defense counsel knew about and that Richardson was incarcerated at the time of the shooting and thus could not have been present. Defendant has abandoned that second argument on appeal and focuses solely on the question whether his trial attorney was ineffective for failing to discover the existence of additional open charges allegedly pending against Richardson. This, defendant contends, led to an ineffective cross-examination of Richardson, whose credibility was a critical element of the State's case.

The State contends that defendant's counsel was advised of all pending charges which faced Richardson. It also argues defendant is procedurally barred from presenting this argument because he raised it on his direct appeal. We disagree with the latter proposition in the context of this matter.

We recognize that on his direct appeal, defendant submitted a pro se brief in which he contended that "[t]he Withholding of Brady Material By The State Violates Due Process And Denied Defendant His Right To A Fair Trial" and that we rejected that argument. We recognize further that Rule 3:22-5 bars a defendant from raising in a PCR petition an argument that has already been the subject of an adjudication on the merits. This rule, however, is not inexorable in its application. State v. Franklin, 184 N.J. 516, 528 (2005) (noting that the "rule . . .

is not an inflexible command. We recognize that when a 'constitutional problem presented is of sufficient import to call for relaxation of the rules [related to post-conviction relief], . . . we may consider the question on its merits." (alteration in original) (quoting State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972)).

We note that in our earlier opinion, in rejecting defendant's argument, we wrote that "in light of Richardson's admission to the jury that at the age of thirty-four, he had accumulated thirteen prior convictions and, at the time of trial, was in jail awaiting trial on a charge of carjacking, we cannot consider that the omitted charges, if indeed there were any, [were] material." July, supra, slip op. at 12. We consider this language a clear indication that we were considering the quantum of Richardson's convictions; that is, would the jury consider him less credible if it knew that he had more than thirteen convictions, rather than considering the question of whether Richardson, in light of pending charges, had a motive to favor the prosecution in his testimony. We do not think it could be seriously questioned that the greater the number of pending charges Richardson might face, the stronger his motivation might be to testify along the lines that favored the State.

From the arguments presented to the trial court and to us, it is clear that there is a material factual dispute as to whether defendant's trial attorney was aware of all of the pending charges that Richardson faced at the time he took the stand. That factual dispute cannot be resolved from the papers; a plenary hearing is required.

Defendant has filed a pro se supplemental brief in which he raises the following additional contentions:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A PUBLIC TRIAL BY THE EXCLUSION OF HIS FAMILY FROM PART OF HIS TRIAL

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS TO A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, IN VIOLATION OF THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES

POINT III

THE LAW DIVISION ERRED BY DENYING AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

The first two points are procedurally barred by Rule 3:22-4; they should have been asserted in conjunction with defendant's direct appeal. Further, defendant has provided no evidence to support his contention that his family was barred from portions of the trial.

There is no need to discuss defendant's third contention as we have already indicated our conclusion that an evidentiary hearing must be held to resolve the dispute as to whether defendant's trial attorney was advised of all the pending charges that Richardson faced when he testified against defendant.

We thus reverse the order on appeal and remand this matter to the trial court for further proceedings, including a plenary hearing.

Reversed and remanded.

 

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