STATE OF NEW JERSEY v. SHAMAR HARRIS-LEE –

NOT FOR PUBLICATION WITHOUT THE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.

SHAMAR HARRIS-LEE,

Defendant-Appellant.

_______________________________________

SubmittedMay 10,2016 Decided June20, 2016

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0470.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shamar Harris-Lee appeals from an order entered by the Law Division on November 27, 2013, denying his petition for post-conviction relief (PCR). We affirm.

An Essex County grand jury charged defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-5b (count two); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). Defendant was tried before a jury.

At the trial, the State presented evidence, which established that on December 11, 2004, a vendor had been selling hot dogs from a cart on Broad Street in Newark. At approximately 2:30 p.m., defendant approached the vendor. Defendant put his arm around the vendor's neck and asked for his money. When the vendor refused, defendant opened a bag he was carrying and showed him an operable, sawed-off shotgun.

Defendant tried to remove the gun from the bag, and the vendor ran off. The gun discharged into the pavement near the vendor's cart. Three Newark police officers were traveling north on Broad Street when they heard the sound of the gun being discharged. They stopped, exited their car, and approached the vendor's cart.

The vendor and bystanders identified defendant as the person who shot the gun. Defendant ran into a nearby store, where he was arrested. In the store, the food vendor identified defendant as the man with the shotgun who tried to take his money. He also identified his money belt and cell phone, which were on the floor near defendant.

A clerk in the store saw defendant enter the store carrying a duffle bag. The clerk saw defendant throw the bag over the counter. One of the officers observed defendant throw a money pouch onto the floor. The police seized the shotgun. The officers later brought the food vendor to the police station, where he provided a statement and identified a photo of defendant as the person who committed the robbery.

The jury found defendant guilty of all three charges. At sentencing, the judge merged count three with count one, and imposed a fifteen year term of incarceration on count one, with an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 The judge also imposed a concurrent five-year custodial term on count two.

Defendant appealed from the judgment of conviction dated April 8, 2006. On appeal, he argued

POINT ONE: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL SUA SPONTE (NOT RAISED BELOW).

POINT TWO: THE SENTENCE IMPOSED ON . . . DEFENDANT WAS MANIFESTLY EXCESSIVE.

We rejected these arguments and affirmed defendant's convictions and the sentences imposed. State v. Harris-Lee, No. A-4405-07 (App. Div. March 8, 2011).

On November 1, 2011, defendant filed a pro se petition for PCR, in which he alleged that he had been denied the effective assistance of trial counsel. The court appointed PCR counsel to represent defendant and counsel filed an amended verified PCR petition.

In a supplemental certification, defendant asserted that one of the police officers testified on direct examination that the gun used in the robbery had an inscription "187 slob." Defendant alleged that his attorney erroneously elicited further testimony from the officer which indicated that the inscription related to gang membership. He also claimed that his trial counsel had instructed him to wear "prison shoes" even though he had a right to wear civilian attire throughout the trial.

On September 26, 2013, counsel presented oral argument on defendant's petition. The PCR judge thereafter filed a written opinion dated November 27, 2013, setting forth her reasons for denying the petition. The judge noted that the trial record showed that in eliciting further testimony from the officer regarding the inscription on the gun, defendant's trial counsel had attempted to establish that defendant was not a known gang member.

The PCR judge wrote that this strategy may have been questionable, but it did not amount to the denial of defendant's right to the effective assistance of counsel. The judge found that because defendant had not established a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing on his petition. The judge memorialized her decision in an order dated November 27, 2013, denying PCR. This appeal followed.

On appeal, defendant raises the following arguments

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF [WITHOUT] AN EVIDENTIARY HEARING SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL RERPESENTATION FROM TRIAL COUSNEL AS A RESULT OF HIS ADVICE TO THE DEFENDANT THAT HE SHOULD WEAR PRISON SHOES TO COURT.

Defendant's claim that he was denied the effective assistance of counsel is considered under the test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant must first establish 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.

In considering the first prong of the Strickland test, the court must recognize that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances" a defense attorney may face, or "the range of legitimate decisions" counsel may make in determining how best to represent a defendant. Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The courts recognize a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut that presumption, a defendant must establish that his attorney's actions did not equate to "sound trial strategy." Ibid. (citation omitted).

Here, defendant notes that the officer testified at trial that the gun recovered after the robbery had an inscription "187 slob." Thereafter, on cross-examination, defense counsel questioned the officer about the inscription. He asked him if it was a reference to a gang. The officer stated that "187 stands for death and slobs, disrespecting Bloods," which was a remark that would be made by a person who was a member of the Crips, a rival gang. The trial judge cut off further questioning at this point, and discussed the matter with counsel at sidebar.

The judge noted that there had been no testimony concerning gangs. Defendant counsel told the judge that he wanted to put this information before the jury because he did not want any juror to think he was hiding the fact that defendant was in a gang. He stated that he wanted to ensure the jurors knew defendant was not in a gang. The judge allowed the questioning to continue. Thereafter, counsel asked the officer if he knew whether defendant was a "registered" member of a gang. The officer replied that he did not.

Defendant contends that reasonably competent counsel would not have cross-examined the officer about the inscription on the gun because there was no evidence that defendant was a gang member. He contends that, at the very least, trial counsel should have requested an instruction, which would have limited the use of the testimony to the identification of the weapon. He contends that there was no indication that anyone associated the inscription on the gun with gang membership, until defense counsel elicited testimony from the officer on this issue.

We are not persuaded by these arguments. We note that although defense counsel may have been aware of the inscription on the gun before trial, he may have been surprised that the State elicited testimony about the inscription during the officer's direct testimony. In any event, it was not unreasonable for counsel to believe that some member of the jury might be aware that the inscription indicated some relationship to gangs. Counsel may have reasonably believed that, since the officer had mentioned the inscription, it was necessary to clarify the fact that defendant was not a known gang member. The PCR judge correctly found that, although this strategy was questionable, it did not fall outside of "the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Even if we assume that counsel erred in cross-examining the officer on this issue, defendant has not shown that he was prejudiced by the error. There was strong evidence of defendant's guilt. He had been identified as the perpetrator by the victim of the robbery and by several bystanders. In addition, the police chased defendant into a nearby store and found him in possession of the sawed-off shotgun, the victim's money belt, and the victim's phone.

We note that in defendant's previous appeal, we rejected his contention that the trial court erred by failing to declare a mistrial sua sponte as a result of the references to the inscription on the gun and gang membership. We stated that "[t]he passing reference to gang affiliation and the inscription on the gun were not likely to have any effect on the trial." State v. Harris-Lee, supra, (slip op. at 6). For essentially the same reasons, we conclude that defendant failed to show he was prejudiced by counsel's questioning of the officer regarding the inscription of the gun.

Defendant also argues that the PCR court erred by failing to conduct an evidentiary hearing on his claim that he was denied the effective assistance of counsel because his trial attorney advised him to wear "prison shoes" at his trial. He asserts that counsel thought it would be beneficial to his case if he wore prison shoes at trial.

Defendant claims that reasonably competent counsel would never have advised him to wear "prison shoes" because he had a right to wear civilian attire at his trial. Defendant asserts that he believed the jury may have been negatively influenced since they "necessarily became aware" of his custodial status "based on his footwear."

An evidentiary hearing is not required on a PCR petition unless the defendant establishes a prima facie case for relief, there are material issues of disputed fact that cannot be resolved by the existing record, and the court determines that an evidentiary hearing is necessary to resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing Rule 3:22-10(b)); see also State v. Preciose, 129 N.J. 451, 462 (1992) (noting that an evidentiary hearing on a PCR petition only warranted when defendant presents a prima facie claim).

Even if counsel advised defendant to wear "prison shoes" at trial, as he claims, there is nothing in the record indicating that the jurors actually observed defendant's shoes or knew that he was issued prison-issued footwear. Indeed, in his certification, defendant did not describe the "prison shoes" or indicate that they were so different from civilian shoes that members of the jury would necessarily have known they had been issued by the correctional facility. Defendant simply assumes the jurors observed his shoes and, as a result, knew of his custodial status. As the State points out, the claim rests on speculation.

We are therefore convinced defendant was not entitled to an evidentiary hearing on this claim. He did not present a prima facie case of ineffective assistance of counsel, and the existing record was sufficient to resolve defendant's claim.

Affirmed.