STATE OF NEW JERSEY v. JASON HARRELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0340-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON HARRELL,

Defendant-Appellant.

_______________________________

November 15, 2010

Submitted October 19, 2010 - Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

03-12-1552.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel,

on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason Harrell appeals from an order of the Law Division denying his petition for post-conviction relief (PCR), and a subsequent order of August 22, 2008, denying his motion for reconsideration. We affirm.

Charged under an indictment with murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2), and second-degree possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(a), defendant was convicted by a jury of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and of the weapons charge. For sentencing purposes, the judge merged the weapons conviction with the aggravated manslaughter conviction, and imposed a thirty-year term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appealed and we affirmed the conviction, but remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005).1 State v. Harrell, No. A-1090-04 (App. Div. Nov. 2, 2006). The Supreme Court denied certification. State v. Harrell, 192 N.J. 480 (2007).

This criminal episode arose out of a confrontation between a group of young Hispanic males and a group of young black males during the early morning hours of August 24, 2003, on the corner of Welton and Hassert Streets in New Brunswick. We recite the facts as stated in our decision on direct appeal:

According to the State's proofs, at around 8:00 p.m. the evening before, Brian Weeks, defendant's longtime friend, had been involved in an altercation with an Hispanic male, Mario Carpio. Shortly afterwards, Weeks went to retrieve a gun he had earlier stashed away at a George Street home where he and defendant had been attending a barbecue. Weeks then went to 30 Welton Street, the home of his son's mother, and asked another friend, Tryshon Stokes, to hold the gun for him.

Sometime later, at around 2:00 or 3:00 a.m., Carpio and Weeks met again on Welton Street, this time amidst a crowd of about ten or fifteen Hispanic males and a group of black males standing across the street. Weeks and Carpio began arguing while a number of Hispanic men were in the middle of the street "swinging weapons and all that there stuff." They surrounded Weeks but there was no physical fighting between the two groups and Weeks was not injured in any way. The Hispanic males simply would not let Weeks leave.

By then, defendant had pulled up to the scene in a truck and observed the crowd encircling Weeks. When defendant approached an Hispanic male holding num chucks but "backing up" from him, Weeks told defendant to get the gun from Stokes. Defendant complied, left the scene and went to 30 Welton Street to retrieve the gun "to make everyone get away from the area and that was it." Stokes, in turn, was only too willing to relinquish the gun simply to "to get [it] out of the house."

Defendant returned to the nearby scene with gun in hand. He exited the truck, brandished the gun, and fired six to eight shots in Weeks' direction. One of the bullets struck Juan Gomez, an innocent bystander, in the chest, killing him.

After the shooting, defendant discarded the gun and fled in his truck. Another of defendant's friends at the scene, Malik Stokes, took the gun to 30 Welton Street, where Weeks wrapped it in a handkerchief and threw it into the backyard of 32 Welton Street where it was discovered by police. The next morning, defendant telephoned Weeks and arranged to meet in Asbury Park where the two boarded a bus to North Carolina later that day. They were arrested four days later. Meanwhile, at the scene of the shooting, four shell casings were located on Welton Street and one shell casing was stuck in the gun. Two bullets had struck a red Toyota parked on Welton Street and one bullet was recovered from the decedent during the autopsy.

Defendant offered a somewhat different version of the events at trial. Believing Weeks to be in danger from the encircling crowd, defendant "grabbed the gun from" Tryshon Stokes "to make everybody get away from the area . . . ." According to defendant, the Hispanic youth with the num chucks:

was right here in the middle of the street. He's coming towards me. He didn't swing but he had --- he had the num chucks in fact but he just didn't swing. He was just looking at me and that's it. There were several other people surrounding the person with the num chucks . . . I mean they wouldn't

let him [Weeks] go anywhere.

Defendant fired the first two shots in the air and then fired two more shots towards the area where the crowd was surrounding Weeks, but "fired downwards towards the car." Thereafter, Weeks broke free of the crowd and grabbed defendant's arm, which caused defendant to change direction and fire twice more into another street.

[Harrell, supra, No. A-1090-04 (slip op. at 2-5).]

Evidently crediting the State's account, the jury convicted defendant of aggravated manslaughter and possession of a weapon for an unlawful purpose.

Defendant filed a timely PCR application on November 28, 2007. In his pro se petition, defendant argued that trial counsel was ineffective for not challenging the prosecutor's comments in summation and not seeking a curative instruction to remedy these remarks. PCR counsel, in a supplemental brief, raised additional issues of trial counsel's ineffectiveness, namely the failure to call witnesses requested by defendant and failure to file a motion to exclude a knife and tie rod for want of scientific testing. The PCR judge denied the application, reasoning:

As far as the arguments are concerned, it's first of all, not at all clear to the Court as to what the defendant is referring to in his pro se application. The Appellate Division did consider certain actions of the prosecutor to be inappropriate, more specifically the argument that the defendant tailored his testimony, found the violation to be harmless, and therefore, if that's what he's referring to, the defendant has already had that issue resolved by the Appellate Court and cannot again raise it.

As far as the failure to call certain witnesses or the failure to object to evidence of a knife or a pry bar being admitted into the proceeding, again, there simply is no assertion by the defense, and none that the Court can understand as to how, in any event, the suppression of these items or the testing of these items would have made any difference in the case, even assuming that it was deficient for counsel not to take that approach.

This is a case where there is an allegation that the defendant was involved in this confrontation and that he fired a gun recklessly into a crowd and killed somebody, and he was convicted of aggravated manslaughter.

The fact that a knife or other weapons were found really doesn't do anything but to corroborate that there was a confrontation between groups of young men, and . . . doesn't really change anything. There is no question based on the forensic evidence that was supplied and the eyewitness testimony that Juan Gomez was killed from a gunshot wound fired . . . from a gun used by the defendant.

. . . .

Failing to call witnesses, again, there were a number of witnesses who were called including co-defendants who testified as to what occurred. The jury heard various versions of what occurred, including the defendant's version of what occurred. And they made a demonstration which the Court finds was surely based on evidence in the record, if the jury chose to believe it, that the defendant recklessly fired a gun into a crowd. And he was thereby convicted of aggravated manslaughter.

So, I don't see any basis for even conducting a prima facie hearing -- an evidentiary hearing in this matter. I simply don't see that there has been any prima facie showing that there was ineffective assistance of counsel, or that the conduct of counsel was so deficient that there might have been some other likely outcome. So, the petition is denied.

On defendant's pro se motion for reconsideration, defendant argued for the first time that PCR counsel was ineffective. The PCR judge denied this motion as well.

On appeal, defendant argues that PCR counsel was ineffective for not pursuing the claims raised by defendant in his pro se petition and instead advancing a meritless legal issue and "poorly" articulating others. We disagree.

As to the former claim, defendant faults PCR counsel for not challenging in the PCR court the prosecutor's improper comment in summation and the trial court's jury instruction that failed to contain a curative charge concerning the alleged misconduct. However, as noted, the PCR judge considered the issue and rejected it, as having already been addressed and resolved by this court. Indeed, the prosecutor's comment in summation to the effect that defendant had tailored his testimony to the State's evidence was the subject of defendant's direct appeal, wherein we found that although the remark was improper as violative of State v. Daniels, 182 N.J. 80 (2006), it was nevertheless harmless and did not deprive defendant of a fair trial. Harrell, supra, No. A-1090-04 (slip op. at 14-16). In light of this determination, we conclude PCR counsel was not ineffective for failing to pursue these issues anew in the PCR proceeding. R. 3:22-5.

Defendant also faults PCR counsel for not fully developing the claim that trial counsel was ineffective for failing to call witnesses. In this regard, defendant criticizes PCR counsel for neither identifying these witnesses nor specifying the significance of their putative testimony. Once again, the PCR court considered this aspect of the claim of trial counsel's ineffectiveness and soundly rejected it. In any event, to date, defendant has failed to explain, much less demonstrate through competent proofs, the significance of this supposed testimonial evidence, its relevance to defendant's accidental shooting defense, or how the result would have been any different, given the number of witnesses who already testified, if these additional individuals were also to testify.

We have considered defendant's remaining arguments as to PCR counsel's claimed ineffectiveness and reject them as without merit, deserving of no further comment. R. 2:11-3(e)(2).

1 On remand, the same sentence was imposed.