STATE OF NEW JERSEY v. JALONN LASSITER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0501-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JALONN LASSITER,

Defendant-Appellant.

________________________________________

April 19, 2013

Submitted April 9, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1210.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the letter brief).

PER CURIAM

Defendant Jalonn Lassiter appeals from an order entered by the Law Division on February 25, 2011, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with first-degree robbery of Tyshon Davis (Davis), N.J.S.A. 2C:15-1 (count one); first-degree felony murder of Davis, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree murder of Davis, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count three); first-degree robbery of Ricardo McLeod (McLeod), N.J.S.A. 2C:15-1 (count four); and second-degree kidnapping of McLeod, N.J.S.A. 2C:13-1(b) (count five). Co-defendants Jeremy Franklin (Jeremy) and Boris Franklin (Boris) were also charged in counts one, two, four and five of the indictment. The trial court denied defendant's motion to suppress the statement he gave to the police, and thereafter the matter was tried before a jury.

At the trial, the State presented evidence which established that, prior to March 13, 2004, McLeod met with the Franklins three times and sold them cocaine. McLeod provided the drugs for the first transaction, but obtained drugs from Davis for the other sales. Boris later contacted McLeod to purchase additional cocaine, and they agreed to meet at a Burger King in Elizabeth on March 13, 2004.

At about 9:00 p.m. or 10:00 p.m. on that day, McLeod and Tyshon Orr (Orr) met the Franklins in the Burger King parking lot. The Franklins arrived in one car, and McLeod and Orr were in another car. They then left and drove their respective vehicles to a place about one block from the Burger King. There, Boris got out of his car and entered the back seat of McLeod's automobile. Boris and McLeod had previously agreed on a sale price of $10,000 but Boris told McLeod he did not have the money.

McLeod testified that, at this point, Boris returned to his car and asked McLeod to meet him at the Burger King parking lot. McLeod told Boris he did not have the drugs with him. Davis arrived with Abelgardo Astorga (Astorga). McLeod and Davis walked to the Burger King parking lot and got into the back seat of the Franklins' car.

Jeremy exited the car to go into the Burger King. The three other men were getting out of the car when defendant arrived in another automobile. According to McLeod, defendant exited the car and pointed a gun in Davis' direction. McLeod heard one gunshot. Defendant then entered the Franklins' vehicle and pointed a gun at McLeod. McLeod testified that defendant stole his jacket, some cash and a phone.

Boris testified that he was uncomfortable with the March 13, 2004 drug transaction, but he remained with McLeod because he was assured McLeod would not harm him and the transaction would go smoothly. Boris spoke with defendant several times during the evening and informed defendant he would be at the Burger King parking lot. Boris did not recall whether he told defendant he was in trouble or felt nervous about the drug sale.

Boris further testified that Davis did not pull a gun on him, and they were not fighting. He stated that he was outside of the car, speaking with Davis, when defendant arrived, got out of the car with a gun in his hand, and shot Davis as he began to run.

Detective Dean Marcantonio (Marcantonio) of the Union County Prosecutor's Office testified that defendant gave a statement to the police after he was taken into custody. Marcantonio read the statement into evidence.

In that statement, defendant acknowledged that Boris contacted him on the night of March 13, 2004, because he wanted defendant to accompany him to the drug sale to ensure that "nothing went wrong." Defendant described what occurred when he arrived at the Burger King with Leon Gandy:

[Boris] told us to come over, and [Gandy] drove on the opposite way of the drive-thru behind the Burger King. We pulled up and [Boris] was outside the car talking to the dude that got shot. All I remember was the guy saying to [Boris], "What do you mean you don't know me," and then [Gandy] reached for the gun that was in the middle. I told him to give it to me, I'm closer. [Gandy] said, "No, that's my man. I got him." We were struggling with the gun, it was pointed towards the building, and before you know it by me pulling it forward and him pulling it back the gun went off. [Gandy] pulled out leaving me out in the parking lot with the gun. So I got in the car with [Boris], and [Jeremy], and the other kid that was in the back seat. We were pulling out and I seen the Spanish guy that was coming across the highway with a white bag in his hand. The kid sitting next to me said, "That's the guy that was with the other guy and he's got the drugs" . . . . [Boris] tried telling the guy to come over to the car. The guy got scared and took off . . . . I saw the guy on the ground. We then took off and jumped on the Turnpike.

The jury found defendant guilty of the robbery of Davis (count one), the felony murder of Davis, (count two), and aggravated manslaughter (count three, as amended). Defendant was found not guilty on the other charges.

At sentencing, the court granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-7.1. After appropriate mergers, the court sentenced defendant to life without parole. The court ordered that the sentence be served concurrently with a sentence defendant was then serving on a Middlesex County conviction.

Defendant appealed from the judgment of conviction dated December 15, 2006, and raised the following issues:

POINT I

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN REFUSING TO CHARGE THE JURY AS TO DEFENSE OF OTHERS.

POINT II

THE RECORD STRONGLY INDICATES THAT DEFENSE WITNESS LEON GANDY WAS INTIMIDATED BY THE STATE, AND CONSEQUENTLY REFUSED TO TESTIFY SUBSTANTIVELY, AND THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY REFUSING TO TAKE ANY REMEDIAL ACTION. U.S. CONST., AMENDS. V, VI, XIX; N.J. CONST., ART. I, PARS. 1, 10.

POINT III

THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE DEFENDANT'S PURPORTED UNCOUNSELED STATEMENTS, NECESSITATING REVERSAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

We rejected defendant's arguments in Points I and III and affirmed defendant's convictions and sentences, subject to the right to file a PCR petition raising the issue in Point II regarding an allegedly intimidated witness. State v. Lassiter, No. A-4618-06 (App. Div. June 19, 2009) (slip op. at 3).

Defendant later filed a pro se PCR petition in the trial court. The court appointed PCR counsel, who filed an amended petition in which he alleged that defendant had been denied the effective assistance of counsel because his trial attorney erred by advancing a "defense of others" defense and made certain concessions in summation that "caused" the jury to convict defendant.

The PCR court considered the petition on February 25, 2011, and after hearing the arguments of counsel, placed its decision on the record. The court noted that defendant had withdrawn his claim regarding the allegedly intimidated witness, which had been preserved by our decision on the direct appeal. The court then addressed defendant's other claims.

The court observed that the case was "factually intricate" but, based on the evidence presented at trial, the jury could reasonably believe that the Franklins and defendant went to the Burger King to rob the drug dealers. The court additionally stated:

What was clear at the end of the day, in this case, was that [defendant] was there. That at some point in time he had a gun in his hand and that the gun went off. [Defense counsel] never conceded any element of the offense. She always claimed that this was an accident. She always in her opening, she said [defendant] is not guilty, the State is not going to prove it, [defendant] is not a murder[er]. She argued effectively based upon the evidence she had. She . . . continue[d] and [made] arguments regarding defense of others. It wasn't a legal argument per [se] and she knew that the Court . . . was [not] going to give . . . [a] charge [on that claim]. But in terms of a street argument to a jury, asking for, in effect, . . . jury nullification on . . . the evidence that it was presented with, [she] certainly made that claim, and she certainly claimed that it was an accident.

The court found that, even if defense counsel erred in her representation of defendant, defendant was not prejudiced by counsel's errors and "the verdict would have been the same."

The court also addressed defendant's claim that someone had tampered with the victim's body at the scene. PCR counsel noted that the medical examiner had testified that the victim was shot from behind. He said the police photographs indicated that the victim's clothes had been "adjusted." PCR counsel said this suggested that "perhaps a gun was removed from his body, which would support the defense of other's idea." The PCR court rejected this claim, noting that there was no evidence that the crime scene had been tampered with.

The court entered an order dated February 25, 2011, denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:

POINT I:

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 REPRESENTATION AT THE TRIAL LEVEL.

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

B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT BY RELYING UPON AN UNTENABLE DEFENSE, IGNORING THE ONLY VIABLE DEFENSE, AND MAKING VARIOUS CONCESSIONS WHICH RESULTED IN HER CLIENT'S ENSUING CONVICTIONS.

We have carefully reviewed the record in light of these contentions and conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We nevertheless add the following brief comments.

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). The Strickland test also has been adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of claims of ineffective assistance of counsel raised under the New Jersey Constitution.

In order to prevail on an ineffective-assistance-of-counsel claim, a defendant first must show that his attorney's handling of the case "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.

Defendant argues that his trial attorney was deficient because she pursued a "defense of others" strategy, which was "untenable." He says that the evidence presented at trial did not "even remotely suggest[]" that he was acting in the defense of others when Davis was shot, as indicated by the trial court's refusal to charge the jury on that defense and our affirmance of the trial court's ruling. Defendant contends that counsel should have instead argued that Davis's death was accidental and unexpected.

We are convinced that the PCR court correctly rejected this argument. Although counsel's pursuit of the defense of others strategy may have been erroneous, defendant was not prejudiced by the error. As the PCR court found, the result here would probably have been the same had defense counsel not advanced this defense. The State presented substantial evidence that defendant held the weapon and shot Davis. Moreover, the record indicates that defense counsel did, in fact, argue that Davis was shot accidentally and unexpectedly when defendant and Gandy struggled with the gun.

Defendant additionally contends that he was denied the effective assistance of trial counsel because his attorney conceded causation in her summation, which concession allegedly led to his conviction. Again, we disagree.

Defendant's counsel never conceded that defendant was guilty of any charged offense. In her summation, counsel stated that defendant "wasn't trying to rob anybody" or "thinking about robbing anybody." Counsel thus disputed the State's claim that defendant committed felony murder. Counsel also acknowledged that Davis' death was caused by defendant, but several witnesses testified that defendant possessed the gun and shot Davis. Furthermore, in his statement to the police, defendant conceded that he and Gandy were struggling with the gun when it discharged and Davis was shot.

We are convinced that the PCR court correctly determined that defense counsel's trial strategy was reasonably based on the evidence presented at trial. Furthermore, as the PCR court determined, even if counsel erred by acknowledging that defendant had the gun in his hand when it discharged, the verdict probably would have been the same, in light of the extensive and essentially uncontroverted evidence that defendant was holding the gun when the shot that killed Davis was fired.

Defendant further argues that the PCR court erred by deciding the matter without conducting an evidentiary hearing. However, an evidentiary hearing was not required in this case because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.