STATE OF NEW JERSEY v. JEREMIAH A. JACKSON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0708-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEREMIAH A. JACKSON,
Defendant-Appellant.
__________________________
Submitted February 4, 2020 – Decided March 11, 2020
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-08-1955.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Vincent Molitor, Designated Counsel,
on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole Lynn Campellone, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order entered by the Law Division on August
1, 2018, which denied his petition for post-conviction relief (PCR). We affirm.
I.
In August 2012, an Atlantic County grand jury returned Indictment No.
12-08-1955, charging defendant with second-degree burglary, while armed,
N.J.S.A. 2C:18-2 (count one); second-degree conspiracy to commit burglary,
N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2(a)(1) and (b)(2) (count two); second-degree
burglary, during which bodily injury was inflicted, N.J.S.A. 2C:18-2 (count
three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); second-
degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-
1 (count five); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count six);
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); first-degree
felony murder, N.J.S.A. 2C:11-3(a)(2) (count eight); second-degree possession
of a weapon (shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
nine); second-degree conspiracy to possess a weapon (shotgun) for an unlawful
purpose, N.J.S.A. 2C:5-2, N.J.S.A. 2C:39-4(a) (count ten); second-degree
possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count eleven); second-degree conspiracy to possess a weapon (handgun) for an
unlawful purpose, N.J.S.A. 2C:5-2, N.J.S.A. 2C:39-4(a) (count twelve); second-
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2
degree unlawful possession of a weapon (shotgun), N.J.S.A. 2C:39-5(c)(1)
(count thirteen); second-degree unlawful possession of a weapon (handgun);
N.J.S.A. 2C:39-5(b) (count fourteen); and fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1) (count fifteen).
Defendant was tried before a jury. At the trial, the State presented
evidence showing that on the evening of December 9, 2011, Ellis Spell, Jr. was
in his bedroom with his cousins and a friend at the home of his parents, Rhonda
Lawrence and Ellis Spell, Sr. At around 8:30 p.m., one of Ellis, Jr.'s cousins
observed a person, who was apparently looking for his older brother, but he was
not at home.
Ellis, Jr. turned on the porch light and saw a black male, dressed in black,
with a "black shirt tied around his face." Ellis, Jr. realized that the man was
holding a shotgun. He locked the door and ran to his bedroom to alert his cousins
and his friend. One of Ellis, Jr.'s cousins saw a man on the porch holding "a
long gun." He saw another person making his way around the house. Another
cousin heard "pounding" on the front door or the porch wall and heard someone
say, "[y]ou know what we [are] here for."
Ellis, Jr. went to the kitchen to lock the back door. He saw someone
pointing "a silver revolver," and he went to warn his parents. Ellis, Sr. pushed
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him into one of the bedrooms. Rhonda hid in a bedroom closet and called 9-1-
1. She could hear Ellis, Sr. cursing at the men and demanding to know what
they wanted. According to Rhonda, a man said, "You know what we came for."
She heard Ellis, Sr. enter the bedroom and slam the door, after which there were
sounds indicating that the men kicked the bedroom door open. She heard a
scuffle and "three gunshots."
One of Ellis, Jr.'s cousins jumped out of the bedroom window and Ellis,
Jr. followed. Ellis, Jr. said that before he left the house, he heard his father
demand to know what the men wanted, followed by the sounds of a "tussle . . .
like[] they were fighting." The cousin stated that once outside, he heard three
gunshots. He saw three black men carrying what appeared to be two handguns
and a long gun. They ran past him and entered a four-door vehicle.
Police responded to the 9-1-1 call and found Ellis, Sr. lying on his back
on the bathroom floor. He was dead. The medical examiner determined that he
had been struck by two, small-caliber bullets. One of the bullets entered at the
bottom of his right cheek, exited his body, and reentered his chest. The second
bullet pierced the right shoulder and traveled downward. The medical examiner
attributed Ellis, Sr.'s death to the gunshot wounds and scalp lacerations.
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Three days after the shooting, the police received a tip from a confidential
informant and arrested Tyree Kelly on the street. Kelly was carrying the guns
used in the murder and robbery. Kelly agreed to testify for the State. He stated
that he and defendant were close friends. He met defendant the morning after
the shooting. Defendant was with two other men, whom Kelly did not know.
Defendant told Kelly he went to the Spell residence with an older man, who had
a gun, and a "younger guy."
Defendant asked Kelly to get rid of the guns, which were dropped off at
Kelly's apartment a day or two later. Defendant said he targeted the Spell
residence for a robbery because he and the other men heard they were moving
drugs out of the house. Defendant stated that when they entered the house, the
older man had been "fighting . . . at the [back] door." He told Kelly there was a
scuffle. The shotgun fell and discharged.
Kelly stated that he cleaned the guns so that he could sell them.
Defendant's blood was found on the t-shirt Kelly used to clean the guns. Kelly
was on his way to Philadelphia to sell the guns when the police arrested him.
He said that shortly after the murder, defendant bragged about the shooting and
admitted he "did it."
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The State's ballistics expert testified that the bullets found in Ellis, Sr.'s
body had been fired from the handgun the police recovered from Kelly. In
addition, the State's forensic scientist testified that a sweatshirt found on the
floor of defendant's car had DNA of Ellis, Sr. and defendant.
The jury found defendant guilty of murder (count six), felony murder
(count seven), burglary while armed with a firearm (count one), conspiracy to
commit armed burglary (count two), burglary during which bodily injury was
inflicted (count three), conspiracy to possess a weapon (shotgun) for an unlawful
purpose (count ten), and conspiracy to possess a weapon (handgun) for an
unlawful purpose (count twelve). The jury found defendant not guilty of the
other charges.
The judge later sentenced defendant to an aggregate term of fifty years of
imprisonment with an eighty-five-percent period of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed
from the judgment of conviction dated September 24, 2013. He raised the
following arguments:
POINT I
THE MURDER CONVICTION MUST BE
REVERSED BECAUSE THE COURT FAILED TO
CHARGE AGGRAVATED AND RECKLESS
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MANSLAUGHTER AS LESSER-INCLUDED
OFFENSES. (Not Raised Below).
POINT II
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
REVERSED BECAUSE THE COURT INSTRUCTED
THE JURY THAT IN ORDER TO CONVICT
DEFENDANT OF BURGLARY IT HAD TO FIND
THAT HE ENTERED THE PREMISES FOR THE
PURPOSE OF COMMITTING MURDER, BUT
FAILED TO EXPLAIN THAT AS AN
ACCOMPLICE, DEFENDANT MAY NOT HAVE
SHARED THE PRINCIPAL'S INTENT TO COMMIT
MURDER. (Not Raised Below).
POINT III
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
VACATED BECAUSE THE JURY FOUND, IN
ACCORDANCE WITH THE COURT'S
INSTRUCTION, THAT THE BURGLARY WAS
COMMITTED FOR THE PURPOSE OF
COMMITTING MURDER, AND THE STATE
FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THAT WAS THE PURPOSE OF THE
BURGLARY. (Not Raised Below).
POINT IV
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
VACATED BECAUSE THE STATE FAILED TO
PROVE BEYOND A REASONABLE DOUBT THAT
DEFENDANT ENTERED THE PREMISES
WITHOUT LICENSE OR PRIVILEGE, AN
ESSENTIAL ELEMENT OF BURGLARY. (Not
Raised Below).
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POINT V
THE SENTENCE OF 50 YEARS, 42.5 YEARS
WITHOUT PAROLE, IMPOSED ON THE MURDER
CONVICTION IS EXCESSIVE AND IS BASED ON
IMPROPER CONSIDERATIONS TREATED AS
AGGRAVATING FACTORS.
We affirmed defendant's convictions and sentences in an unpublished
opinion. State v. Jackson, No. A-1425-13 (App. Div. 2015) (slip op. at 9 to 24).
Thereafter, the Supreme Court denied defendant's petition for certification.
State v. Jackson, 223 N.J. 282 (2016).
II.
On April 28, 2016, defendant filed a pro se PCR petition in the Law
Division, alleging he was denied the effective assistance of trial counsel. The
court assigned counsel to represent defendant. Thereafter, defendant filed
certifications dated November 17, 2016, and April 12, 2018, in support of his
petition.
In his certifications, defendant claimed his trial attorney was ineffective
because the attorney: (1) failed to advise him adequately with regard to the
State's plea offer; (2) did not provide him with the discovery so that he could
make an informed decision regarding the State's plea offer; (3) failed to
challenge the State's DNA evidence; (3) advised him to reject the State's plea
offer and go to trial because counsel "was familiar" with one of the jurors; (4)
A-0708-18T4
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conceded defendant was present at the crime scene and was shot at that location;
(5) failed to object to "expert-like" testimony of a witness who said defendant
suffered an injury to his thumb; (6) did not conduct an independent investigation
of certain suspects or contact other witnesses defendant identified; (7) did not
request voir dire of a juror who was seen sleeping during trial; (8) failed to
consult a DNA expert to test the results of the State's expert; and (9) did not
object to the trial court's instructions.
On August 1, 2018, the PCR court heard oral argument and placed an oral
decision on the record. The judge found that defendant was barred from raising
many of the issues presented in his petition because they should have been raised
on direct appeal. The judge further found that defendant failed to present a
prima facie case of ineffective assistance of counsel.
The judge found that defendant had not established that his trial attorney
was deficient in his handling of the case. The judge also found that defendant
failed to show he was prejudiced by any of the attorney's claimed errors. The
judge noted that at trial, the State had presented a strong case which established
that defendant committed the offenses for which he was found guilty. The judge
entered an order dated August 1, 2018, denying PCR. This appeal followed.
On appeal, defendant's appellate PCR counsel argues:
A-0708-18T4
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THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AN EVIDENTIARY HEARING
BECAUSE DEFENDANT RAISED A PRIMA FACIE
CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL THROUGH HIS ALLEGATIONS THAT
HIS TRIAL COUNSEL FAILED TO CONTEST THE
STATE'S EVIDENCE AND IMPROPERLY
RELIEVED THE STATE OF ITS BURDEN TO
PROVE HIS GUILT BEYOND A REASONABLE
DOUBT.
Defendant has filed a pro se supplemental brief. He argues:
PCR COUNSEL WAS INEFFECIVE FOR FAILING
TO CONDUCT AN INDEPENDENT
INVESTIGATION OF THE LEGAL CLAIMS
RAISED IN MY PETITION FOR POST
CONVICTION RELIEF IN ACCORDANCE WITH
THE [PRINCIPLES] ESTABLSIHED IN STATE [v.]
RUE, [ 175 N.J. 1] (2002); [R.] 3:22-1.
III.
As noted, defendant argues that the PCR court erred by failing to conduct
an evidentiary hearing on his petition. He contends he presented a prima facie
case of ineffective assistance of counsel. We disagree.
An evidentiary hearing is only required on a PCR petition when the
defendant has established a prima facie case in support of PCR, the court has
determined there are material issues of disputed fact that cannot be resolved
based on the existing record, and the court finds an evidentiary hearing
A-0708-18T4
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necessary to resolve the claims presented. State v. Porter, 216 N.J. 343, 354
(2013) (citing R. 3:22-10(b)). "To establish a prima facie case, defendant must
demonstrate a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits." R. 3:22-10(b).
To prevail on a claim of ineffective assistance of counsel, a defendant
must show by a preponderance of the evidence that: (1) counsel's performance
was deficient; and (2) the deficient performance prejudiced the defendant. See
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-prong test from
Strickland v. Washington, 466 U.S. 668, 687 (1984) for proving ineffective
assistance of counsel). The "mere raising of a claim of [ineffective assistance
of counsel] does not entitle the defendant to an evidentiary hearing." State v.
Peoples, 446 N.J. Super. 245, 254 (App. Div. 2016). A court should not grant
an evidentiary hearing if "defendant's allegations are too vague, conclusory, or
speculative." R. 3:22-10(e)(2).
To satisfy the first prong of the Strickland test, a defendant must overcome
a "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689. A deficient
performance means that "counsel made errors so serious that counsel was not
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functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at 687.
Furthermore, to establish the prejudice prong, the defendant must
establish "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the matter." Id. at 694.
However, in order to establish a prima facie claim, a defendant "must do
more than make bald assertions he was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The
defendant "must allege facts sufficient to demonstrate counsel's alleged
substandard performance." Ibid. Moreover, when a defendant claims his trial
attorney did not adequately investigate the case, "he must assert the facts an
investigation would have revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." Ibid. (citing R. 1:6-6).
On appeal, defendant argues that his trial attorney was deficient because
he failed to perform an independent investigation to locate certain unnamed
"suspects." He contends his attorney "did nothing" to contest the State's DNA
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evidence. He also contends his attorney's lack of effort left him with two choices
– either plead guilty to a crime he allegedly did not commit, or go to trial with
an attorney who "refused to do anything to contest the State's evidence."
As stated previously, defendant claims his trial attorney failed to conduct
an adequate investigation of other "suspects" or persons who could have
provided testimony exonerating him. However, he did not identify those
persons, nor did he provide the PCR court with any affidavits or certifications
from these individuals, based upon their personal knowledge, setting forth their
proposed testimony.
Defendant also claims his trial attorney was deficient because he failed to
challenge the State's DNA evidence. However, he did not provide the PCR court
with an affidavit or certification from a qualified DNA expert, setting forth an
opinion with the basis upon which the State's DNA evidence could have been
challenged.
Defendant also alleges that his trial attorney was deficient because he
failed to provide him with discovery. He claims that without such information,
he was not able to make an informed decision regarding the State's plea offer.
The PCR court found, however, that record of the pre-trial conference on
A-0708-18T4
13 December 17, 2012, refuted defendant's claims. The record supports that
finding.
At the pre-trial conference, the judge noted that defendant had been
charged with various offenses in fifteen counts. Defendant's attorney told the
judge that he had reviewed the discovery with defendant, and that he had
discussed the State's plea offer with defendant. The record shows that under the
State's plea offer, defendant would plead guilty to felony murder and the State
would recommend a twenty-five-year prison term, with an eighty-five percent
period of parole ineligibility, pursuant to NERA.
The prosecutor briefly summarized the facts of the case. He said that at
trial, the State intended to prove that defendant and two unnamed persons went
to the victim's house. The prosecutor said defendant and the other persons tried
to get in the front door, but they were "stymied." According to the prosecutor,
defendant and the others entered the house through the back door and surprised
the victim while he was in the shower. They shot and killed the victim and fled
in an automobile. The prosecutor said the State's evidence included the weapons
used in the incident, DNA evidence of defendant and the victim, and witness
testimony.
A-0708-18T4
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The judge then questioned defendant on the record. The judge told
defendant he faced serious charges including murder, felony murder, and armed
robbery. The judge explained that if convicted of felony murder, defendant
could be sentenced to life imprisonment, with a lengthy period of parole
ineligibility. The judge also told defendant that if he were convicted of other
offenses, additional sentences could be imposed, which could be consecutive.
The judge asked defendant if he understood what he had told him.
Defendant said, "Yes." Defendant stated that he wanted to reject the State's
plea offer and proceed to trial. The judge asked defendant if he was sure he
wanted to "turn down [twenty-five years]." Defendant replied, "Yes."
Thus, the record establishes that defendant was provided with the
discovery and that trial counsel had advised defendant concerning the State's
plea offer. Defendant told the judge he wanted to reject the offer. He did not
have any questions, or suggest he had not been adequately counseled regarding
the plea offer.
Defendant also claims that his attorney failed to discuss trial strategy with
him. However, defendant has not explained the strategies he believes counsel
should have discussed with him, or how the alleged lack of these discussions
prejudiced his defense. As we stated previously, defendant "must do more than
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make bald assertions that he was denied the effective assistance of counsel."
Ibid.
We therefore conclude that the record supports the PCR court's finding
that defendant failed to establish that his attorney's performance was deficient.
The record also supports the court's determination that defendant failed to show
he was prejudiced by counsel's alleged deficiencies. As the PCR court found,
the State presented strong evidence at trial, which supported the jury's verd ict.
Assuming that trial counsel's handling of the matter was deficient in some
respects, defendant failed to show the result here probably would have been
different, but for those alleged deficiencies.
We also conclude that because defendant failed to present a prima facie
claim of ineffective assistance of counsel, the PCR court correctly determined
that defendant was not entitled to an evidentiary hearing on his petition.
IV.
As noted, in his pro se supplemental brief, defendant contends he was
denied the effective assistance of PCR counsel because counsel failed to conduct
an independent investigation of the claims raised in his petition. He claims he
A-0708-18T4
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asked his attorney to consult a DNA expert to examine the DNA evidence and
requested counsel to file a motion for post-conviction DNA testing. He also
disputes the State's evidence that a sweatshirt was found in his car with
bloodstains on it.
In addition, defendant asserts that PCR counsel failed to investigate
whether his trial attorney advised him of his sentencing exposure when the State
made its plea offer. He claims the plea offer was "actually" an offer of twenty-
five years to life, instead of an offer of twenty-five years with an eighty-five
percent period of parole ineligibility. He alleges he relied upon his trial attorney
to advise him properly during the trial and pre-trial plea discussions.
Defendant claims that at the pre-trial conference, the trial judge
"attempted" to explain his sentencing exposure. He asserts, however, that this
was his attorney's responsibility. He states that his trial attorney did not fully
explain the plea offer to him and he did not "fully understand" the State's offer.
He asserts that he "naively" rejected the State's plea offer because his attorney
did not "fully" explain it to him.
Defendant also claims his trial attorney was ineffective because he
conducted plea negotiations before the court ruled on his pre-trial motions. He
contends plea negotiations should be conducted after the court decides the pre-
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trial motions so that he could be in a better position to determine whether to
accept the plea offer or proceed to trial.
We are convinced that defendant's supplemental arguments lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note,
however, that defendant has not shown that PCR counsel was deficient in
handling the petition, or that the matter would have been resolved differently if
PCR counsel had conducted a further investigation of defendant's claims or
consulted with a DNA expert.
Defendant did not provide any certification or affidavit explaining what a
further investigation would have revealed. He failed to establish that the result
of a PCR proceeding would have been different if PCR counsel had conducted
a further investigation.
Moreover, as noted previously, the PCR court addressed defendant's claim
that his trial counsel failed to advise him adequately regarding the State's plea
offer, and correctly determined that defendant failed to establish that his
attorney's advice regarding the plea was deficient. The contention that PCR
counsel was deficient in handling that issue is entirely without merit.
Defendant's other claims that he was denied the effective assistance of PCR
counsel are unsupported by the record.
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Affirmed.
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