STATE OF NEW JERSEY v. KEVIN HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN HARRIS,

Defendant-Appellant.

_________________________________________

December 11, 2013

Submitted November 12, 2013 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-1390.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin Harris appeals from the March 12, 2012 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On May 24, 2004, Chanson Battle received a call from a friend, Tashawn, inviting Battle to his house. Battle drove to Tashawn's house and parked on the street in front of his house. Battle saw defendant walking toward his car from the direction of Tashawn's house. Battle had known defendant since 1996 when they both attended Plainfield High School. Even though Battle knew defendant lived around the corner from him and had been to his house, he never learned defendant's name and referred to him by the street name, "B&E."

Defendant knocked on the driver's side window and told Battle to roll it down. When Battle complied, defendant asked what took him so long. Battle explained that he took a shower before he left his home. Battle then asked defendant where Tashawn was and defendant said he will be out in a minute. When defendant continued to act aggressively, Battle asked him if he wanted to fight. Defendant responded, "no," then drew a gun, pointed it at Battle's head, and demanded his earring and watch. Battle tried to push the gun away and put the car in gear to drive off but defendant started shooting at him from very close range. Battle managed to drive away but realized he had been shot. He drove around the corner to a friend's house and was then taken to the hospital. On the way to the hospital, Battle passed out.

When the police interviewed him in the hospital, Battle told them B&E shot him and identified defendant from a group of six photos shown to him.

Tried to a jury, defendant was convicted of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; aggravated assault, N.J.S.A. 2C:12-1(b)(1) and 2C:12-1(b)(2); robbery, N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced to an aggregate custodial term of eighteen years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant presents the following arguments:

point i

since defendant timely retained counsel to file a direct appeal or a petition for post-conviction relief, and since retained counsel's failure to do so was not attributable to any fault of defendant, the pcr court misapplied its discretion in applying the procedural bar of rule3:22-12.

point ii

since the defendant made a prima facie showing of ineffective assistance of trial counsel under the Strickland/fritztest by a preponderance of the evidence, the order denying post-conviction relief should be reversed and the matter remanded for a full evidentiary hearing.

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

defendant reasserts all other issues raised in post-conviction relief.

a) cumulative errors denied defendant a fair trial.

In addition, defendant provides the following additional arguments in a pro se submission:

TRIAL COUNSEL'S FAILURE TO REQUEST A WADE HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ASK THE COURT TO PROPERLY VOIR DIRE THE JURORS AFTER A MEMBER OF THE JURY WAS APPROACHED.

II.

A defendant's claim of ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under our State Constitution.

In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show 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.

Here, defendant challenges the PCR court's decision that his petition is procedurally time-barred by Rule 3:22-12. He maintains that, prior to his sentencing, he retained counsel to file an appeal of his conviction. In response to an attorney ethics grievance filed by defendant, the attorney maintained that he thought defendant was represented by the public defender on the appeal, and he was retained for potential post-conviction relief, should the appeal prove unsuccessful.

We agree with the observations of the Disciplinary Review Board that it is "questionable" that defendant would have paid the attorney the substantial fee of eleven thousand dollars for PCR services while an appeal was ostensibly pending. After defendant filed a fee arbitration request, the attorney voluntarily refunded the fee paid by defendant. We conclude that defendant had a reasonable belief that counsel had been retained to file his appeal and that his failure to raise his claims within the time required was due to "excusable neglect." See State v. Goodwin, 173 N.J. 583, 594 (2002).

Although the PCR court found that the petition was time-barred, the judge also considered defendant's claims on the merits and found the application should be denied substantively as well.

Defendant claims his trial counsel was ineffective for not filing a Wade1 motion to preclude admission of Battle's out-of-court photographic identification. Defendant also objects to the in-court display of Battle's injuries to the jury.

Regarding defendant's Wade claim, the PCR court noted that there was no impermissive suggestibility, as "the victim knows who shot him." We agree. There is no automatic right to a Wade hearing, and there must first be a "threshold showing of suggestiveness" in a witness's out-of-court identification. State v. Ruffin, 371 N.J. Super. 371, 390-91 (App. Div. 2004).

The identification procedure here was neither unfair nor impermissibly suggestive. Battle has known defendant, although not by name, since their high school days. We are satisfied that Battle's out-of-court identification was not improper and the trial court correctly permitted his in-court identification. Given Battle's familiarity with defendant, his out-of-court identification was more in the nature of a recognition than an identification, and his in-court identification was independent of his prior out-of-court identification. See State v. Royster, 57 N.J. 472, 480, cert. denied, 404 U.S. 910, 92 S. Ct. 235, 30 L. Ed. 2d 182 (1971).

Defendant next objects to Battle's in-court display of his gunshot wounds to the jury. While trial counsel initially objected to the exhibition, he withdrew the objection after the trial judge viewed the injuries outside the presence of the jury and concluded they were not "particularly gory or gruesome" and would not inflame the jury. We review, therefore, for plain error. R. 2:10-2.

Trial courts are given wide discretion in determining admissibility of evidence of a victim's injury. See State v. Thompson, 59 N.J. 396, 420 (1971). "Evidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting Thompson supra, 59 N.J. at 421). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Here, the trial court examined Battle's injuries and determined they were not inflammatory. Defendant's counsel then withdrew his objection to the in-court display. We find no error in the trial court's admission of this evidence, let alone the plain error that would be required pursuant to Rule 2:10-2.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

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