STATE OF NEW JERSEY v. FAYYAADH HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5825-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

FAYYAADH HARRIS,

Defendant-Appellant.

__________________________________

July 18, 2011

Submitted: June 8, 2011 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0383.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy AttorneyGeneral/Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Following merger of the possession for an unlawful purpose with the murder charge, defendant was sentenced to a thirty-year term of imprisonment with a thirty-year parole disqualifier for the murder charge and a concurrent four-year term for the unlawful possession charge. We affirmed his conviction, State v. Harris, No. A-5007-04 (App. Div. May 4, 2007); and the Supreme Court denied certification, 192 N.J. 480 (2007). Defendant filed a petition for post-conviction relief (PCR) arguing among other things, that his trial counsel did not advise him that he could testify at the Miranda1 hearing. We reverse and remand for an evidentiary hearing.

The facts of this case are set forth in our earlier opinion. Harris, supra, No. A-5007-04 (slip op. at 2-12). Briefly, defendant, who had been selling drugs on a street corner in Newark for some time, shot and killed Mallory Corpening, who had previously sold drugs on that corner and had stated his intention to reclaim the corner. Defendant was seventeen at the time of his arrest.

Following his arrest, believing defendant was eighteen,2 police read the prescribed Miranda rights to defendant, and defendant orally waived his rights. Defendant gave a statement and confessed to the crime.

Following waiver of Family Part jurisdiction, a grand jury indicted defendant and eventually defendant moved to suppress his statement. The hearing focused on whether police proceeded to interview defendant knowing he was seventeen. Defendant did not testify at the Miranda hearing.

In his pro se petition for PCR, defendant alleged he had not received effective assistance of counsel because trial counsel failed to investigate and locate alibi witnesses. Counsel was assigned and in his supplemental petition, defendant alleged that he informed his trial attorney he wanted to testify at trial, and that trial counsel never informed him of his right to testify at the suppression hearing. Defendant also alleged that following his arrest, he repeatedly asked to see his mother, that he never made the statement attributed to him, and that police altered the statement of a witness and produced it as his statement. Assigned counsel also argued that trial counsel should have requested a Wade3 hearing to challenge Arleathea Edwards' identification of defendant, and trial counsel should have sought a stronger limiting instruction concerning defendant's prior bad acts.

In his January 27, 2009 opinion denying all relief and dismissing defendant's petition, the judge held that failure to inform defendant of his right to testify at the Miranda hearing was, if true, harmless error. He reasoned that trial counsel followed the same tactic at the Miranda hearing as at trial believing that defendant was an unreliable witness and that the judge, as the jury, would have believed a "veteran homicide detective" over defendant. At oral argument, the judge revealed his faith in the ability of defendant's trial attorney in the following exchange:

THE COURT: And frankly, [defense counsel has] been around a long time, she tried an excellent case, she's an excellent lawyer, she's been in front of me many times. I would almost guarantee it, that your client's not accurate.

[PCR COUNSEL]: You'd almost guarantee what?

THE COURT: Yourclient's recol- lection is not accurate.

On appeal, defendant raises the following arguments:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY CORRECT R. 3:22-2 CRITERIA.

POINT II TRIAL COUNSEL'S FAILURE TO INFORM THE DEFENDANT OF HIS RIGHT TO TESTIFY AT THE MIRANDA HEARING AND HIS UNILATERAL DECISION THAT THE DEFENDANT WOULD NOT TESTIFY AT TRIAL: TRIAL COUNSEL'S REPRESENTATION THAT THE DEFENDANT'S JUVENILE RECORD WAS ADMISSIBLE FOR IMPEACHMENT PURPOSES: AND TRIAL COUNSEL'S FAILURE TO CONTEST THE OUT-OF-COURT IDENTIFICATION PROCEDURE; RESULTED IN PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

(A)

TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING A DIFFERENT CHARGE IN RESPONSE TO THE JURY'S QUESTION.

(B)

THE MOTIVE AND IDENTIFICATION EVIDENCE OF PETITIONER'S PAST DRUG DEALING WITH MS. EDWARDS WAS NOT DELIMITED BY A CLEAR INSTRUCTION THAT SUCH PRIOR BAD ACTS HAD TO BE ESTABLISHED BEYOND A REASONABLE DOUBT, OR DISREGARDED. TRIAL COUNSEL'S FAILURE TO INSIST ON SUCH AN INSTRUCTION WAS INEFFECTIVE ASSISTANCE AND THE TRIAL JUDGE'S FAILURE TO SUA SPONTE CHARGE ON THE MATTER WAS PLAIN ERROR.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States 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).

An evidentiary hearing is required when the facts viewed in the light most favorable to defendant would entitle him to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

In his remarks at oral argument and in his opinion, the judge made credibility determinations and identified concerns and problems that informed the defense strategy. The latter finds no support in the record; the former cannot occur without an evidentiary hearing. Moreover, a comparison of the trial transcript and the suppression hearing transcript reveals a marked difference. At trial, defense counsel and the trial judge made the requisite inquiry on the record about defendant's right to testify at trial. The transcript of the suppression hearing bears no such inquiry. Moreover, categorizing the omission at the suppression hearing as harmless error is not so apparent to us. Having presided at the trial, the trial judge made that assessment with the benefit of a full record. A different result may have occurred if defendant had testified at the suppression hearing.

The fundamental concern, however, is the disputed nature of the advice given to defendant at that time. That issue must be resolved and can only be resolved at an evidentiary hearing.

Furthermore, in light of the trial judge's high regard for defense counsel and the "veteran homicide detective," the hearing must be conducted before another judge. See State v. Tindell, 417 N.J. Super. 530, 572 (App. Div. 2011) (remanding for re-sentencing before a different judge where trial judge's views as to the propriety of the verdict tainted the sentence he imposed). The judge has already expressed his opinion of the credibility of trial counsel.

The judge properly dismissed the balance of the issues presented by defendant in his petition, including the identification by Edwards and trial counsel's investigation and identification of alibi witnesses. The arguments presented by defendant on appeal as to the remaining issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We remand solely for an evidentiary hearing on the advice provided to defendant by trial counsel regarding his right to testify at the Miranda hearing.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 He turned eighteen on January 23, nineteen days after the shooting.

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).