STATE OF NEW JERSEY v. NAQUAN O'NEIL a/k/a NAQUAN O'NEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3080-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAQUAN O'NEIL,

a/k/a NAQUAN O'NEAL,

Defendant-Appellant.

_______________________________

December 12, 2012

Submitted May 21, 2012 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-09-3649.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and 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).

Appellant filed a pro se supplemental brief.

PER CURIAM

This appeal arises from the dismissal of defendant Naquan O'Neil's petition for post-conviction relief ("PCR"). The petition was predicated on defendant's claim that he was deprived of the effective assistance of counsel at trial and in the unsuccessful direct appeal of his 2003 conviction for aggravated manslaughter and other crimes. The PCR judge concluded that defendant had not made a prima facie showing of ineffective assistance by his former counsel. Because we agree with that conclusion, we affirm the dismissal of defendant's petition.

I.

The pertinent facts have already been detailed in this court's unpublished 2007 opinion affirming defendant's conviction on direct appeal. State v. O'Neil, No. A-5134-02 and A-3644-04 (App. Div. Aug. 10, 2007). Briefly, the State's proofs at trial established that on March 16, 2001, defendant and the homicide victim, Hassan Hardy, had an argument outside of a Newark nightclub. Their argument continued into a parking lot, where Hardy struck defendant with a car door and defendant punched Hardy in response. The two men then separated. According to defendant, the two men encountered one another again later that same evening. Hardy fired several gunshots in defendant's direction after emerging from bushes nearby, but missed. Defendant then retrieved a .380 caliber handgun from a hiding place and fired three shots into Hardy's vacant car. Defendant then left the area.

The next evening, March 17, a female acquaintance, Cynthia Crawford, noticed that defendant had a gun on his lap while he was driving her around. After dropping off Crawford at her residence, defendant returned to her street on foot, where he again encountered Hardy. Hardy asked defendant why he had fired shots into his parked car, and the two men proceeded to exchange insults. Defendant then saw Hardy reach into a pocket, prompting him to fire multiple shots at Hardy, one of which struck Hardy in the chest. Defendant then fled the scene, and Hardy died from the gunshot wound.

The police found a .25 caliber handgun next to Hardy's body, but there was no evidence showing that particular handgun had been fired. However, a ballistics analysis did show that two bullets recovered near Hardy had been discharged from defendant's own .380 caliber handgun.

At trial, Crawford testified that she had observed the street encounter through her front window. She specifically recalled defendant say to Hardy, "You like playing with guns?" before firing the shots at him. Crawford also testified that she had not seen Hardy wield a gun before defendant fired the shots.

The ensuing indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3a (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). Defendant interposed a claim of self-defense.

After four days of testimony, the trial judge issued the jury charge, which, among other things, alternatively charged aggravated manslaughter and reckless manslaughter as lesser-included offenses of murder. Without any objection from defendant's trial counsel, the charge included the following instruction, explaining to the jurors that defendant's self-defense claim did not apply to the lesser-included charges of manslaughter:

Now, it's important for you jurors to understand the following: The defense of self-defense is not applicable to the lesser-included charges of aggravated manslaughter and reckless manslaughter. With aggravated and reckless manslaughter, the requisite mental state to establish the offense is recklessness, not purposeful or knowing conduct. When the mental state is recklessness, self defense is not a justification.

[Emphasis added.]

Following several days of deliberations, the jury found defendant not guilty of murder, but guilty of first-degree aggravated manslaughter, as a lesser-included offense of murder (count one); third-degree unlawful possession of a weapon (count two); and second-degree possession of a weapon for an unlawful purpose (count three).1

At sentencing, the trial judge merged defendant's conviction of possession of a weapon for an unlawful purpose on count three into the aggravated manslaughter conviction on count one. The judge imposed concurrent terms, aggregating twenty-two years, on counts one and two, with an eighty-five percent period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

On direct appeal, defendant's counsel argued (1) that the trial court's jury instructions were coercive and resulted in an unfair compromise verdict; (2) the court erred in admitting into evidence certain prior bad acts of defendant; and (3) the sentence was legally flawed and excessive. In our unpublished August 2007 opinion, we sustained defendant's conviction but remanded for resentencing pursuant to State v. Natale, 84 N.J. 458 (2005). O'Neil, supra, slip op. at 12. On remand, the same sentence was reimposed.

In May 2008, defendant filed a PCR petition, claiming that he was deprived of the effective assistance of his prior counsel, both at trial and on direct appeal. The focus of defendant's petition, as amended, was upon the portion of the jury charge instructing that principles of self-defense do not bear upon a person's guilt of reckless manslaughter.

In support of his main PCR argument, defendant relied upon State v. Rodriguez, 195 N.J. 165, 172 (2008), in which the Supreme Court held that a defendant who kills another person with an honest and reasonable belief that the protection of his own life requires the use of such deadly force against the aggressor has not acted "recklessly" and thus cannot be convicted of reckless manslaughter. In Rodriguez, the Court repudiated State v. Moore, 158 N.J. 292, 303 (1999), which had indicated that self-defense cannot be a valid defense to manslaughter. Rodriquez, supra, 195 N.J. at 173-74. The Court made clear that a valid self-defense claim can exonerate a defendant of not only murder but also the lesser-included offenses of manslaughter, both aggravated and reckless. Id. at 172.

The State opposed the PCR petition. It asserted that at the time of trial and through the time of the direct appeal, the pertinent case law, including Moore, did not require trial courts to instruct that self-defense principles are applicable to manslaughter.

After considering these arguments, the PCR judge, who was the same judge who had presided over defendant's trial, issued a written decision dismissing the petition. The judge concluded that defendant's collateral claims for relief are procedurally barred under Rule 3:22-4 because defendant had an ample opportunity to object to the jury instructions at trial and on direct appeal. In addition, the judge substantively found no proof that defendant's former trial or appellate counsel were deficient because the Supreme Court's opinion in Rodriguez clarifying the contours of the law of self-defense had not been issued until after defendant's appeal was adjudicated. As the judge observed, "[t]here was nothing ineffective in following the existing case law as to the appropriate jury instruction."

II.

Defendant now appeals, raising through his present counsel the following points for our consideration:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS APPELLATE COUNSEL WAS INEFFECTIVE

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE

C. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE ON APPEAL THAT SELF- DEFENSE IS A JUSTIFICATION FOR AN ALLEGEDLY RECKLESS HOMICIDE

Additionally, defendant has submitted a pro se supplemental letter brief amplifying his counsel's arguments relating to Moore, Rodriguez, and other case law.

In essence, defendant claims that it should have been apparent to his former trial and appellate counsel, even in the absence of the Court's ultimate holding in Rodriguez, that a theory of self-defense could legally rebut the allegations here of both murder and manslaughter. He insists that any reliance by his prior attorneys upon Moore would have been misplaced. He contends that Moore was limited to its facts, where the defendant had shot an innocent third party bystander and had asserted that his gun had fired accidentally. Defendant also contests the trial court's application of the Rule 3:22-4 procedural bar.

The Sixth Amendment of the United States Constitution guarantees a person accused of crimes a right to the effective assistance of counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The appeal before us turns on the first required element under the Strickland/Fritz test, i.e., whether the performance by defendant's prior attorneys was "deficient." We agree with the trial court that defendant has failed to demonstrate such deficiency.

Prior to the Supreme Court's opinion in Rodriguez, supra, it was by no means clear that a trial court could be obligated to instruct the jury on principles of self-defense in a case charging the defendant with manslaughter. To be sure, there were some indications in reported cases that such a defense could be viable in a manslaughter context. See, e.g., State v. Kelly, 97 N.J. 178, 203-04 n. 12 (1984) (in an opinion remanding a conviction for a new trial because of the trial court's improper exclusion of a defense expert on battered women's syndrome, noting in a footnote that such expert testimony could be relevant to a charge of reckless manslaughter because self-defense based upon a reasonable belief in the need for deadly force would constitute justification of the defendant's conduct); State v. Ciuffreda, 127 N.J. 73, 81-82 (1992) (in a case that hinged upon defense counsel's oral consent to waive indictment on passion/provocation manslaughter charges, inferentially recognizing that the defendant was not prejudiced because he had notice before the trial began that he might be charged with such an offense, and that his "self-defense posture applied as much to that charge as it did to aggravated manslaughter and reckless manslaughter").

Despite those earlier case law fragments, the governing law on this particular issue was still ambiguous until the Supreme Court clarified it in 2008 in Rodriguez, supra. Most significantly among the pre-Rodriguez case law, in Moore, supra, 158 N.J. at 302, the Court majority explicitly stated that the Criminal Code's justification defenses "are not available in a prosecution where recklessness or negligence suffices to establish the requisite mental element." The Court in Moore elaborated that "self-defense is not an available justification under the recklessly causing serious bodily injury alternative theory of second-degree aggravated assault." Ibid.

These observations from Moore were eventually repudiated by the Court nine years later in Rodriguez, supra, 195 N.J. at 173-74. The Court made it clear in Rodriguez that the above-cited passages from Moore were "not a correct statement of law when applied to a person who uses deadly force to protect himself against death or serious bodily injury and does not endanger innocent third parties in doing so." Id. at 173. However, because the defendant in Moore factually was not entitled to a self-defense charge because he lacked such an honest and reasonable belief in the need to use deadly force and, in fact, was the aggressor the Court in Rodriguez concluded that Moore's "mistaken assertion" of law restricting the applicability of a self-defense claim was inconsequential. Id. at 174.

This chronology of the pertinent case law reflects that Moore, as the most recent Supreme Court case on the topic issued before Rodriguez, interposed a precedential barrier to any argument that defendant's trial attorney could have asserted in 2003, or that his appellate lawyer could have asserted in 2007, to a hypothetical claim that the jury in this case should have been charged with self-defense. Defendant's former counsel were both bound to follow the law as it existed at the time of their representation. Although it would not have been unethical for those former counsel to have advocated "a good faith argument for an extension, modification, or reversal of existing law," RPC 3.1; see also R. 1:4-8(a)(2); those prior attorneys had no professional or constitutional obligation to do so. We do not fault those prior attorneys for not predicting that in June 2008, the Supreme Court would repudiate its earlier unqualified assertion in Moore that self-defense claims do not pertain to crimes of recklessness.

It is also significant that the Court did not state in Rodriguez that its holding on these self-defense issues must apply retroactively to cases like this one, which had already reached a state of final judgment by June 2008. See State v. Feal, 194 N.J. 293, 310-12 (2008) (detailing the factors that bear upon retroactivity). Without resolving the retroactivity question here, we note that defendant has cited to us no case in which the legal standard expressed in Rodriguez, and its repudiation of Moore, was applied retroactively. It therefore was entirely reasonable for defendant's former attorneys to believe that Moore was the controlling case on point.

We also disagree with defendant's contention that his former counsel were deficient because they did not attempt to distinguish the present case from the facts in Moore. As the Court stated in Moore, supra, the fact that the defendant there was the aggressor was simply "another reason" why a self-defense instruction was inappropriate. 158 N.J. at 311-12. Nor was the Court's unconditional statement of the governing legal principle in Moore i.e., that "self-defense is not an available justification" to a charge of reckless behavior, see id. at 303 expressed in terms that were limited to the facts of that case, in which a third party had been shot. As the Court in Moore concluded, "neither the factual nor legal requirements necessary for self-defense were satisfied[.]" Id. at 312 (emphasis added).

For these reasons, we affirm the PCR judge's sound conclusion that defendant was not deprived of the effective assistance of either his former trial or appellate counsel. We therefore need not address the trial court's separate finding of procedural bar under Rule 3:22-4. To the extent that defendant's PCR petition and his submissions on appeal suggest other arguments, such contentions lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

1 The weapons convictions are not a subject of this appeal.