STATE OF NEW JERSEY v. RAHMAN HERRILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2846-06T42846-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMAN HERRILL,

Defendant-Appellant.

___________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-07-1917.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rahman Herrill appeals from the November 6, 2006 order denying his petition for post-conviction relief (PCR). The court denied the petition without first conducting an evidentiary hearing, concluding that defendant had failed to establish a prima facie basis for PCR. We affirm.

Defendant's convictions arose out of the New Year's Day shooting of Stephen Calderone outside of an apartment building in Orange where Calderone had gone with his girlfriend, Rebecca Celusak, just after midnight. Calderone went upstairs to Yvette Weems' apartment where Weems was hosting a New Year's Eve party with some of her girlfriends and a few men, one of whom was defendant, who was also known as "Rock." When Calderone entered the apartment, defendant was asleep on a couch. He had been at the party since the early evening and had started drinking from a bottle of Hennessey at that time. Calderone asked for food but was told to wait for the ball to drop. He also asked for drugs. He was told no one had drugs and that he should check outside. Calderone then left Weems' apartment and went outside. Once outside, Celusak, who had been waiting for Calderone in their vehicle, observed him talking to a few people who were standing outside of the apartment building.

A short time later, Calderone walked back to his vehicle. As he "walked towards the back of the SUV," he was confronted by defendant, who had left Weems' apartment after awakening and briefly tussling with his friends before "bust[ing] the door" and eventually walking out of the apartment after Weems confronted him about his behavior. When defendant confronted Calderone, he started shooting him, and when Calderone fell to the ground, defendant continued shooting at him. He also kicked Calderone and spit on him. The autopsy report revealed that Calderone had been shot eight times, including gun shot wounds to the head, chest, abdomen, rectum, shoulder, back and elbow. A number of witnesses identified defendant as the shooter but at least two other witnesses selected another person, Maurice Rock, who is also known as "Rock" or "Rhock." Police took statements from Weems, as well as two other women who were at her apartment for the New Year's Eve party, Ruth Powell and Shamira Jones. All three women identified defendant as the shooter. Police obtained an arrest warrant for defendant.

A six-count indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count Two); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b) (Count Three); second-degree witness tampering, N.J.S.A. 2C:28-5(a) Count Four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six). Shortly before trial, Counts Two and Four were dismissed. The jury convicted defendant of murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The court denied defendant's motion for a new trial and sentenced defendant to serve a term of life imprisonment with a thirty-year period of parole ineligibility, merged Count Five into Count Six, and imposed a consecutive five-year custodial term with a three-year mandatory period of parole ineligibility on the weapons offense. On appeal, we affirmed defendant's conviction but remanded to the trial court for re-sentencing because the trial court improperly merged Count Six and Count Five rather than merging Count Six into Count One and separately imposing sentence on Count Five. State v. Rahman Herrill, No. A-6380-01 (App. Div. October 6, 2003)(slip op. at 4). The Supreme Court denied defendant's petition for certification. State v. Rahman Herrill, 178 N.J. 455 (2004).

In February 2004, defendant filed a pro se petition for PCR, claiming (1) ineffective assistance of trial and appellate counsel and (2) that the verdict was unsupported by the evidence. Counsel was assigned to represent defendant and filed a supplemental brief raising ineffective assistance of counsel as the basis for PCR. In a written opinion filed November 6, 2006, Judge Joseph C. Cassini, III found that trial counsel's performance "more than satisfie[d] the minimum reasonable standard for effective assistance of counsel" and that defendant's petition failed to demonstrate, by a preponderance of the evidence, that the claimed ineffective assistance on the part of appellate counsel would have altered the outcome of defendant's appeal. The court also noted that a number of claims raised in the petition had been addressed on direct appeal and were therefore procedurally barred. The court entered an order dated November 6, 2006 denying the petition. The ensuing appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.

(A)

TRIAL COUNSEL'S OPENING STATEMENT, FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT, FAILURE TO OBJECT TO THE TRIAL COURT'S JURY CHARGE ON IDENTIFICATION, FAILURE TO REQUEST A JURY INSTRUCTION ON THE LESSER INCLUDED MANSLAUGHTER OFFENSES, FAILURE TO MOVE FOR A JURY [VOIR DIRE] CONCERNING THE IN-COURT CONDUCT OF THE SHERIFF'S OFFICERS, AND FAILURE TO PERMIT [] DEFENDANT TO TESTIFY AT TRIAL, SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

(1)

THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

(2)

THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

(B)

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE [U.S. CONST. AMEND. VI] AND [THE N.J. CONST. ART. I, 10].

POINT II

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND "SUPPLEMENTAL BRIEF" AND IN DEFENDANT'S [PRO SE] BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

POINT III

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE PCR COUNSEL'S "SUPPLEMENTAL BRIEF" WAS INADEQUATE AND BECAUSE THE COURT FAILED TO RULE ON ALL OF THE ISSUES PRESENTED IN DEFENDANT'S [PRO SE] BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

We have considered the points raised in light of the record and applicable legal principles and we reject all of defendant's contentions. We briefly address a few of defendant's claims.

In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-part test, namely, he must first demonstrate, based upon an objective standard, that counsel's performance was seriously deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987). Defendant must next establish that the defect in performance prejudiced his right to a fair trial. Ibid. Unless a prima facie case of remediable ineffectiveness is established, a defendant is not entitled to an evidentiary hearing to resolve his claims. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Remediable ineffectiveness requires a showing that counsel's performance was deficient, as measured by the community standard, and that the defective performance prejudiced defendant's right to a fair disposition. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 60-61.

In measuring a defense counsel's performance, we do so from the time of the challenged conduct. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid. In our analysis, we acknowledge the strong presumption that counsel "made all significant decisions in the exercise of [his or her] reasonable professional judgment." Ibid.

In establishing the second prong, defendant must do more than show that the error or errors had some conceivable effect on the outcome of the trial. State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, "[t]he error committed must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. When making a determination whether specified errors prejudiced the defendant, we presume that the judge or jury acted according to law. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant's claim that his trial counsel was ineffective for failing to file a motion to suppress the out-of-court identifications does not satisfy the first prong of the Strickland/Fritz test because most of the witnesses who identified him as the shooter actually knew him and had been at the New Year's Eve party with him. Consequently, a Wade hearing would not have affected the admissibility of the identifications made by these witnesses. Although there were witnesses who reviewed a photo array and selected another person as the shooter, these were not witnesses who testified that they knew defendant, and there is no indication that these witnesses had been in attendance at the party where defendant had been for some time during the evening. Consequently, the critical issue was the credibility of those witnesses whose identification of defendant was not based upon a photo array but their personal affiliation and knowledge of defendant before the shooting. As the trial judge observed, the credibility of these witnesses was "well exhausted and scrutinized by [trial] counsel . . . ."

Nor do we believe that defense counsel's reference to the fact that defendant sat in jail for eighteen months raises an issue worthy of PCR. The reference was made in the context of defense counsel's attempt to emphasize the point that defendant was available to participate in a lineup, had the prosecution sought such a procedure. This was clearly trial strategy presumably weighed against the likelihood that since defendant was charged with murder, the jurors probably suspected that defendant was being confined but would not necessarily know the ease with which a Wade hearing could have been arranged. We find no basis to question this strategy. We are reminded that the adversarial process should not be undermined by placing too much emphasis on hindsight. State v. Harris, 181 N.J. 391, 431 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Turning to defendant's claim of prejudice resulting from the conduct of sheriff's officers during the trial and the court's failure to charge the jury on the lesser-included offense of manslaughter, these contentions raised issues that we previously addressed on direct appeal and were therefore not proper subjects for PCR. R. 3:22-5; see also State v. Trantino, 60 N.J. 176, 180 (1972).

The remaining claims raised on behalf of defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

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

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A-2846-06T4

April 9, 2010