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State v. Harris

October 19, 2004


On appeal from the Superior Court, Law Division, Mercer County.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this capital case, Ambrose Harris appeals from the trial court's denial of his petition for post-conviction relief (PCR).

Ordinarily, the Court's review would be based on the findings and conclusions of the PCR trial court. However, certain written and in-court statements of the PCR court complicate this appeal. The PCR court expressed a belief that defendant would not ever face the death penalty no matter what the court did. The statements reveal the PCR court's disdain for Harris and a preordained view that its role in our capital-sentencing system is meaningless.

The nature of the trial court's comments raise the issue whether the Court can affirm a post-conviction relief determination upholding a capital sentence when a PCR court seems to believe that responsibility for determining the appropriateness of a death sentence rests not with it but with the appellate court which later reviews the case. The United States Supreme Court has concluded, in the context of a jury imposition of a death sentence, that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the sentence rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L.Ed. 2d 231 (1985).

This Court has stated that a meaningful post-conviction review proceeding is essential to the constitutionality of the State's capital sentencing process. In performing the function to secure the necessary reliability of a capital sentence, PCR courts must not minimize their own awesome responsibility in the process. Because the Court cannot say that the statements of the PCR court had no effect on its decision, that decision does not meet the standard of reliability required. The Court holds that the PCR court's findings and conclusions are null and void as a result of its injudicious performance.

The State Constitution and the Court Rules authorize this Court to exercise such original jurisdiction as may be necessary to the complete determination of any cause on review. In the circumstances of this appeal, the Court finds that it can conduct a de novo review of both the factual findings and legal conclusions of the PCR court.

Defendant's claims are of ineffective assistance of counsel, and the ultimate determination of such claims is one of law. A trial court's interpretations of the law and the legal consequences that flow from established facts are not entitled to any special deference. Defendant's claims do not involve any credibility determination made by the PCR court. In such circumstances, the Court concludes that it may comfortably exercise its discretion to invoke original jurisdiction.

The following is a summary of the facts of the case. On December 17, 1992, Harris, with the assistance of Gloria Dunn, carjacked, robbed, raped, and murdered Kristin Huggins, a twenty-two year old artist who drove into downtown Trenton to paint a mural. Shortly thereafter, Dunn began revealing information about the killing to a security guard at her apartment complex who was also employed as a detective with the Trenton Police Department. In February 1993, Dunn located Huggins's body for police and admitted she was with Harris when he murdered Huggins. At approximately the same time, two young men from Harris's neighborhood came forward to tell police they observed Harris driving a red sports car on December 17, 1992, like the one driven by Huggins. Harris's nephew also said he saw Harris with a two-door red sports car, and that Harris had boasted that he had hijacked the car and "knocked off some white girl." A security camera and bank records also showed that Harris attempted to withdraw $400 from Huggins's account on December 17, 1992.

A grand jury indicted Harris for purposeful-or-knowing murder, felony murder, kidnapping, robbery, aggravated sexual assault, and other offenses on June 8, 1994. Harris was served with a notice of capital aggravating factors alleging that he murdered Huggins in the course of a felony and for the purpose of escaping detection.

Among other pre-trial motions, Harris requested a change of venue. The trial court denied the motion, but decided to empanel a foreign jury from another county.

During the guilt phase, defense counsel worked to undermine Dunn's credibility. The State's case supported Dunn's testimony. In the penalty phase, Harris submitted 180 mitigating circumstances to the jury under the heading of the "childhood of Ambrose Harris." The related evidence was limited to Harris's life from birth through age thirteen, to prevent the State from informing the jury of Harris's adult criminal record and conduct in prison. Harris presented his mitigation case through a forensic social worker who compiled his social history, as well as through a child psychologist and a psychiatrist, who relied on that history. According to these defense witnesses, Harris was born into a chaotic and dysfunctional home, and his childhood was miserable. Harris's mother abused and neglected her children, and his father abandoned the family when Harris was three years old. The State sought to weaken Harris's mitigation case by questioning whether the social worker had presented a fair and balanced social history, and by underscoring that the defense did not give the psychologist and psychiatrist the opportunity to conduct a mental examination of Harris.

The PCR court held that it would hear testimony from the State's attorney who prosecuted Harris, as well as from the two attorneys who represented Harris at trial. It precluded testimony from David Glazer, Esq., proffered by Harris as an expert in capital defense, although it did admit and consider Glazer's written opinion. The PCR court did not permit the proffered testimony of other fact witnesses from Harris's first trial, including Dunn.

The PCR court also agreed to consider Harris's claim that his execution was barred under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), which held that the Eighth Amendment prohibits states from executing offenders with mental retardation. However, the PCR court determined to hear testimony only from a court-appointed expert, a state-employed psychologist.


Harris has failed to demonstrate ineffective assistance of counsel or any other grounds for relief from his conviction and sentence of death. Harris's petition for post-conviction relief is denied.

1. A two-pronged test is used to evaluate claims of ineffective assistance of counsel. A reviewing court first must determine whether counsel's performance fell below an objective standard of reasonableness (deficiency prong), and second, whether there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (prejudice prong). In the penalty phase of a capital proceeding, however, a less stringent standard is employed for the prejudice prong. In evaluating penalty phase ineffective assistance claims, courts are required to determine whether there is a reasonable probability that but for counsel's errors, the jury's deliberations would have been effected substantially. Confidence in the outcome is the key. Put another way, the prejudice prong is satisfied if there exists a probability sufficient to undermine confidence in the outcome. (pp. 33-36)

2. Among Harris's claims of ineffective assistance during the guilt phase trial are counsel's failure to move to suppress certain evidence, failure to pursue certain cross-examination, and failure to investigate Harris's mental competence. Harris is unable to satisfy the deficiency prong as to many of these claims, since trial counsel's conduct was reasonable and based on a viable defense strategy. As to other claims, Harris does not satisfy the prejudice prong, since there is no showing that the outcome in the guilt phase would have been affected. (pp. 37-77)

3. Harris alleges errors in the performance of counsel during the penalty phase that include inadequate investigation of mitigating evidence, failure to present certain evidence in mitigation, and failure to provide adequate advice concerning the right to allocution. The Court holds that Harris's claims do no rise to the level of ineffective assistance. As to the allocution issue, the record supports trial counsel's conclusion that Harris would have been incapable of exhibiting honest or feigned remorse during allocution. Harris also challenges trial counsel's failure to submit statutory mitigating factors relating to Harris's mental health. Such evidence would have created an opportunity for the State to introduce the facts of Harris's atrocious adult criminal record and conduct in prison. Another of Harris's claims of ineffective assistance in the penalty phase was counsel's failure to request a hearing upon learning about a reporter contacting the jurors by phone during the penalty trial. However, Harris does not present any evidence that casts doubt upon the trial court's assessment of the contact as a simple request for comments, or its conclusion that no extraneous or prejudicial information was imparted to the jurors. In light of all that trial counsel and the trial court had done to preserve Harris's right to an impartial jury, the Court will not presume the contact was prejudicial. (pp. 77-152)

4. Harris claims the PCR judge erred by denying the motion to recuse himself. In light of this Court's determination to nullify the PCR court's findings and conclusions, and to decide this matter de novo, it is not necessary to dwell on this aspect of the application. The Court also rejects Harris's request for a remand, which is based on Harris's claim that he was denied the opportunity to present certain witnesses during the PCR proceeding. Most of these proposed witnesses were not relevant to establishing Harris's ineffective assistance claims. And, given that Harris's claims of ineffective assistance are not complicated, the Court discerns no basis for requiring the live of an expert in capital litigation. (pp. 153-168)

5. Harris also seeks a remand for a hearing on whether his execution is barred due to his alleged mental retardation. Harris complains that the PCR court's exclusive reliance on a court-appointed expert to consider whether Harris is mentally retarded violated his due process rights associated with the adversarial process. The Court concludes that it would be a violation of due process to deprive a capital defendant of the opportunity to present expert testimony to support a bona fide claim of mental retardation. If Harris had submitted a reasonable basis for believing that he might have mental retardation, a remand for a psychological evaluation might be in order. The record, however, contains sufficient evidence to refute Harris's assertion of mental retardation. This includes the results of several IQ tests conducted on Harris when he was young, as well as the opinion of Harris's own expert in the penalty phase, who strongly disagreed with any diagnosis that Harris was mentally retarded. (pp. 168-189)

The petition for post-conviction relief is DENIED.

JUSTICE LONG has filed a separate opinion concurring in part and dissenting in part. She agrees with the Court's determination to deny the post-conviction relief petition based on a claim of ineffective assistance of counsel, but reiterates her previously expressed view that inflammatory pretrial publicity, coupled with the trial court's wholly inadequate efforts to contain it, created a realistic likelihood that Harris did not receive a fair trial.

CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, ALBIN, and WALLACE join in JUSTICE LaVECCHIA's opinion. JUSTICE LONG has filed a separate opinion, concurring in part and dissenting in part.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued March 2, 2004

In 1996, a jury convicted Ambrose Harris of capital murder and sentenced him to death. We affirmed the conviction and sentence, State v. Harris, 156 N.J. 122 (1998) (Harris I), and in a subsequent proceeding, found defendant's capital sentence not disproportionate when compared to sentences imposed in similar cases. State v. Harris, 165 N.J. 303 (2000) (Harris II). Now, four years later, we review defendant's multiple claims of ineffective assistance of counsel and assorted other challenges to the validity of his conviction and sentence.



Review of an application for post-conviction relief in a capital case, eight years after the defendant's trial and sentencing, is a daunting task under any set of circumstances. It is made more difficult in this instance due to the conduct of the PCR trial court. That conduct requires us to determine initially whether we can place any confidence in the PCR court's findings and conclusions.

We explain. Ordinarily our review would be based on the findings and conclusions of the PCR trial court. R. 3:22-11; R. 2:2-1(a)(3). However, certain written and in-court statements of that court complicate our review. We will not recount those statements in detail here, except to note their thrust. The PCR court expressed a belief that defendant would not ever face the death penalty, no matter what the court did:

[S]ince 1976, the date the United States Supreme Court reassessed its death penalty views,[] not a single New Jersey defendant has been executed notwithstanding the fact that 51 persons had been sentenced to death by trial juries to date.[] If that history of the non-employment of capital punishment in New Jersey -- no executions in 33 years[] -- is to be any guide, this court entertains substantial doubt that this defendant, despite the depravity of his crime, will ever be called upon to finally pay his richly-deserved penalty. (Cf., inter alia, the 14-year odyssey of Edgar Smith as in New Jersey v. Edgar Smith, 27 N.J. 43 (1958) and its own rich history of marathon appeals and petition involving more than 20 justices and judges, including his 1971 jackpot decision in the Federal District Court which suddenly divined his confession to be "involuntary," followed by his almost pre-ordained return to transgression.)[]

Rather, given the remarkable fervor with which the instant matter has been approached thus far by the publicly-funded PCR counsel, we can easily anticipate another, and another and yet another application or review of some kind. Such application, when combined with the general aversion to put psychopathic killers to death regardless of the consummate depravity exhibited by their crimes and notwithstanding that from any angle of analysis, defendant has already been deemed, to adopt the quaint coinage of our [New Jersey Supreme] Court, "deathworthy," will no doubt operate to preserve the defendant's life well into senior-citizen status. Civilized society can only hope that defendant's existence will, until his demise, be defined within a cubicle demarcated by steel bars, concrete block and razor wire.

[(Footnotes omitted)(emphasis added).]

The balance of the court's statements contain what only can be described as outrageous, sarcastic, and pejorative comments about this State's death penalty system and this Court's capital jurisprudence, including gratuitous personal attacks against current and former members of the Court.*fn1 The court's statements reveal a disdain for defendant and a preordained view that its role in our capital-sentencing system is meaningless. The nature of its comments raise a Caldwell-like issue, namely whether we can affirm a post-conviction relief determination upholding a capital sentence "when [a PCR court seems] to believe that responsibility for determining the appropriateness of a death sentence rests not with [it] but with the appellate court which later reviews the case." Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 2636, 86 L.Ed. 2d 231, 235-36 (1985).

In Caldwell, supra, the capital defendant's attorney asked the jury to "confront both the gravity and the responsibility of calling for another's death." 472 U.S. at 324, 105 S.Ct. at 2637, 86 L.Ed. 2d at 236. In response, the prosecutor urged the jurors not to see themselves as the determiners of the defendant's sentence because a death sentence would be reviewed for appropriateness by the state supreme court. Id. at 325-26, 105 S.Ct. at 2637-38, 86 L.Ed. 2d at 237. The United States Supreme Court "conclude[d] that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death sentence rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639, 86 L.Ed. 2d at 239. Acknowledging "the qualitative difference of death from all other punishments [as] require[ing] a correspondingly greater degree of scrutiny of the capital sentencing determination," the Supreme Court observed that "many of the limits that [it] ha[d] placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion." Id. at 329, 105 S.Ct. at 2639, 86 L.Ed. 2d at 239.

The Supreme Court continued:

[T]his Court's Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State.... Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with--and indeed as indispensable to--the Eighth Amendment's need for reliability in the determination that death is the appropriate punishment in a specific case.

[Id. at 329-330, 105 S.Ct. at 2640, 86 L.Ed. 2d at 240 (internal quotation marks omitted).]

The Supreme Court vacated the defendant's death sentence, because "the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death." Id. at 341, 105 S.Ct. at 2646, 86 L.Ed. 2d at 247.

We have applied Caldwell on several occasions in circumstances where, for example, a prosecutor or court makes an inappropriate statement to a jury, or where a misleading verdict sheet weakens or subverts the requirement of enhanced "reliability in the [sentencer's] determination that death is the appropriate punishment in a specific case." Id. at 330, 105 S.Ct. at 2640, 86 L.Ed. 2d at 240. See, e.g., State v. Nelson, 173 N.J. 417, 457-60 (2002)(Nelson II) (applying Caldwell to special verdict sheet); State v. Josephs, 174 N.J. 44, 107 (2002) (finding Caldwell violation may exist when prosecutor's "remarks to the jury on the death penalty improperly described the role assigned to them under state law"); State v. Koskovich, 168 N.J. 448, 536 (2001) (rejecting argument that prosecutor's comments "had the capacity to dispel the jury's sense of responsibility"); State v. Marshall, 123 N.J. 1, 247 (1991) (noting applicability of Caldwell to jury instructions); State v. Rose, 112 N.J. 454, 511 (1988)(same); State v. Bey, 112 N.J. 123, 162 (1988) (observing that "in its charge to the jury in the sentencing phases of a capital trial, a trial court must be careful not to dilute the jury's sense of responsibility for determining appropriateness of the death penalty"). See also Moore v. State, 771 N.E.2d 46, 53 (Ind. 2002) (applying Caldwell analysis in evaluating statements of sentencing judge).

Caldwell states that the Eighth Amendment's demand for heightened reliability in capital sentencing forbids the State from trying to diminish the sentencer's sense of its "awesome responsibility." The decision does not directly or explicitly place Eighth Amendment duties on a state trial court adjudicating a capital defendant's post-conviction petition. Nevertheless, it is beyond doubt that members of the judiciary, charged with the function of ensuring the fairness and integrity of the capital-sentencing process, also must view their responsibility as "awesome." Courts evaluating direct review appeals, proportionality review claims, and post-conviction petitions do not determine a capital defendant's sentence, but nonetheless play an indispensable role in "determining [the] appropriateness of [a] death [sentence]," ibid., in light of a defendant's legal rights.

Thus, although we do not rely directly on Caldwell in addressing the PCR court's transgressions, we find that Caldwell provides support for our decision to nullify the PCR court's findings and conclusions. That said, we ground our nullification of the PCR court's determinations in this matter in our State Constitution's protection against cruel and unusual punishment, N.J. Const. art. I, ¶ 12, and specifically, on the role that the post-conviction review proceeding is expected to play in assuring meaningful appellate review in our capital sentencing scheme.

We have stated that a meaningful post-conviction review proceeding is essential to the state constitutionality of our capital sentencing process. State v. Martini, 144 N.J. 603, 613 (1996). In Gregg v. Georgia, the United States Supreme Court held that the Eighth Amendment requires that a capital sentencing jury be "given guidance regarding factors about the crime and the defendant" that are relevant to an individualized sentencing determination, 428 U.S. 153, 192, 96 S.Ct. 2909, 2934, 49 L.Ed. 2d 859, 885 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), and that"the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously," id. at 195, 96 S.Ct. at 2935, 49 L.Ed. 2d at 887. In Martini, supra, in rejecting the efforts of a capitally-sentenced offender to forego post-conviction review, we explained that in New Jersey, the post-conviction proceeding is a necessary element of "meaningful appellate review":

Unless we regard as meaningless the procedures for post-conviction relief set forth in our Rules of Court..., we would undoubtedly be required to appoint standby counsel for defendant in order to perform a"meaningful appellate review" of his death sentence. Because the issues potentially raised in a PCR petition are so varied and important,"[f]rom our state perspective, finality is achieved [only] when our courts grant or deny post-conviction relief." [State v. Preciose, 129 N.J. 451, 475 (1992)]. This is because when"meritorious issues are presented, our interest in affording defendants access to both state post-conviction and federal habeas review outweighs our interest in finality.... Simply put, considerations of finality and procedural enforcement count for little when a defendant's life or liberty hangs in the balance." Id. at 475-76.

[144 N.J. at 613 (emphasis added) (parallel citations omitted).]

In performing their function to secure the necessary reliability of a capital sentence, PCR courts must not minimize their own "awesome responsibility" in the process. A court deciding whether the constitutional rights of a capitally sentenced offender have been safeguarded must not perceive its role as futile or meaningless because the ultimate fate of the defendant rests elsewhere, such as with this Court or the Legislature (indeed, the PCR court stated its belief that the Legislature will commute Harris's sentence).

The comments of the PCR court here demonstrated a diminished sense of its unique responsibility in our capital sentencing process. The court essentially concluded that, even though defendant "richly-deserved" the death penalty, the sanction never would be imposed in New Jersey. Apparently, the trial court believed that the process required by the "heightened need for reliability in the determination that death is the appropriate punishment in a specific case" was a waste of both time and money. Caldwell, supra, 472 U.S. at 323, 105 S.Ct. at 2636-37, 86 L.Ed. 2d at 236 (internal quotation marks omitted); see also Martini, supra, 144 N.J. at 613. In the context of the court's comments, its assurances of its ability to adjudicate fairly ring hollow. They cannot undo the PCR court's vehement disapproval of our capital-sentencing system, or the jabs taken at our capital-sentencing process and those involved in it, including the attorneys, this Court, and the federal courts attempting to guarantee defendant's constitutional rights. In short, "[b]ecause we cannot say that [the statements of the PCR court, both in open court and in its decision in this matter,] had no effect on [its] decision, that decision does not meet the standard of reliability... require[d]," Caldwell, supra, 472 U.S. at 341, 105 S.Ct. at 2646, 86 L.Ed. 2d at 247, and therefore the PCR court has failed in the performance of its necessary role in assuring defendant meaningful post-conviction review of his capital sentence. See Martini, supra, 144 N.J. 613.


We are left, then, with the question of remedy for this problem brought about entirely by the PCR court in a case already eight years old. The court's statements, and the bias, flippancy, and disdain they portray, constrain us to afford no weight to any of its findings or conclusions. It does not follow, however, that this proceeding must be redone, causing considerable expense and further delay in the resolution of this matter.

Under established rules of appellate review, we are not bound by and give no deference to the legal conclusions of the PCR court. Toll Bros., Inc. v. Township of W. Windsor 173 N.J. 502, 549 (2002) (noting that questions of law are subject to de novo review). Typically, "[w]e give deference to the trial court's factual findings... 'when supported by adequate, substantial and credible evidence.'" Id. at 549 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). And for mixed questions of law and fact, we give deference, under Rova Farms, to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings. State v. Marshall, 148 N.J. 89, 185 (1997) (Marshall III). In this case, however, the PCR court's comments call into question not only its legal conclusions, which we would review de novo in any case, but its factual findings as well, to which we normally would defer.

We have two options. One would be to remand the matter to a different trial court for further PCR proceedings. E.g., State v. Rue, 175 N.J. 1, 19 (2002) (affirming Appellate Division's reversal and remand for new PCR hearing, and assigning remand to different trial judge). On remand, the PCR court could generate a new record and render fresh factual findings and legal conclusions. The other would be to determine whether our discretionary jurisdiction permits de novo review of the present record.

Article VI, section 5, paragraph 3 of the 1947 Constitution authorizes the Court to "exercise such original jurisdiction as may be necessary to the complete determination of any cause on review." N.J. Const. art. VI, § 5, ¶ 3. Our Court Rules confer the same power on our appellate courts. R. 2:10-5. We have noted that "[t]he framers of the 1947 Constitution clearly intended that the Supreme Court carry out its appellate review function by undertaking a thorough and comprehensive consideration of each case." State v. Loftin, 157 N.J. 253, 282 (1999) (Loftin II) (noting particular applicability and breadth of that constitutional authority in respect of capital causes). See N.J. Const. art. VI, § V, ¶ 1(c) (directing that appeals may be taken to Supreme Court: in capital cases); see also Joseph H. Rodriguez et al., Proportionality Review in New Jersey: An Indispensable Safeguard in the Capital Sentencing Process, 15 Rutgers L.J. 399, 422 (1984) (concluding that "the 1947 constitutional convention delegates [intended] that the supreme court would have the power to review fully all aspects of all capital cases").

The Constitution authorizes the "exercise [of] such original jurisdiction as may be necessary to the complete determination of any cause on review," N.J. Const. art. VI, § 5, ¶ 3 (emphasis added), but it falls short of informing when or under what conditions the exercise of such powers "may be necessary." Ibid. (emphasis added). To the extent that our ability to invoke our original jurisdiction is permissive, it is correspondingly discretionary.

In State v. Johnson, 42 N.J. 146, 159 (1964), we interpreted the predecessor to Rule 2:10-5, former R.R. 1:5-4(b), which like Rule 2:10-5 contained an "expression of permissive, but non-compulsory, power" to review the factual findings of lower courts.*fn2 We determined that with such permissive power, "[t]he deference which appellate courts must accord... [factual findings] should be determined by consideration of policy and practicality." Ibid. (internal quotation marks omitted). As we stated: "What remains to be answered is the question, when does 'may' become 'should'?" Id. at 159-60 (quoting Russo v. United States Trucking Corp., 26 N.J. 430, 441 (1958)). We concluded that an appellate tribunal may make new factual findings if the findings of the trial court instill a "feeling of 'wrongness.'" Id. at 162. Further,

[w]hile this feeling of 'wrongness' is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made.

[Ibid. (citations omitted).]

We refined the Johnson standard a few years later in State v. Yough, 49 N.J. 587 (1967): There is no question as to the power of this Court to make new fact-findings on the basis of the record before it.... While the power is not generally invoked to displace findings of fact may be made, but due regard ordinary fact-findings by the trial judge who saw and heard the witnesses, it will be invoked in those situations where the sound administration of justice calls for appellate "intervention and correction." State v. Johnson, supra, 42 N.J. at p. 162. We consider this to be such a situation, particularly since here the findings were not exclusively factual but were intertwined with legal implications drawn by the trial judge from the opinion in Miranda.

[Yough, supra, 49 N.J. at 596 (citation omitted).]

In Yough, we "carefully examined the oral testimony along with the written exhibits" and reversed the trial court's suppression of the defendant's confession. Id. at 601. Cf. Bey, supra, 112 N.J. at 140-41 (invoking original jurisdiction to uphold suppression of two confessions where record was at least five years old and remand would "not illuminate the record or serve any other useful purpose"). See also Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 188 (1983) ("exercis[ing]... our original jurisdiction under R. 2:10-5,... since the findings rest[ed] on an undisputed record and not on matters of credibility, demeanor or personal view of the premises").

A pertinent analogy to the present case may be found in State v. Sugar, 108 N.J. 151, 159 (1987), where we determined that the trial court's misapplication of the law "may have contributed to an unduly narrow consideration and erroneous legal assessment of all the evidence presented." Again we noted the ordinary course of action would be "to remand th[e] case to the trial court for it to redetermine the matter under the correct, clarified standard." Ibid. We perceived, however, that the case was not "a usual case," but was a murder prosecution that had been delayed several times to appeal constitutional and legal issues. Ibid. "Moreover, the evidence presented d[id] not pose issues of credibility or require the subjective and intuitive evaluations of a trial court that would otherwise dictate a remand.... In th[o]se extraordinary circumstances, we believe[d] it appropriate to exercise our original jurisdiction." Id. at 159-60. On our de novo review of the record, id. at 160-66, we reversed the trial court's suppression of evidence pursuant to the inevitable-discovery rule. Id. at 165-66.

In the circumstances of this appeal, we find that we can conduct a de novo review of both the factual findings and legal conclusions of the PCR court. Defendant's claims are of ineffective assistance of counsel (IAC). Assessing IAC claims involves matters of fact, but the ultimate determination is one of law and, as already noted, "[a] trial court's interpretations of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Tp. Committee, 140 N.J. 366, 378 (1995); see also Thomas v. State, 83 P.3d 818, 822-23 (Nev. 2004) (stating that "[a] claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review."); State v. Hubbard, 673 N.W.2d 517, 574 (Neb. 2004) (same principle); Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004) (same); State v. Davis, 81 P.3d 484, 486 (Mont. 2003) (same).

Thus, our invocation of original jurisdiction is appropriate here where "the findings were not exclusively factual but were intertwined with legal implications drawn by the [PCR] judge." Yough, supra, 49 N.J. at 596.

We appreciate that in the course of our review certain factual determinations will be necessary to assess defendant's claims. However, as each claim is addressed individually, we shall ensure that our resolution of the claim is based on objective evidence in the record, and not on any credibility determination made by the PCR court. We note specifically that where defendant's PCR claims conflict with the testimony of his trial counsel, defendant has not based his challenge on the truthfulness of counsel, but instead on whether counsel's action or tactic was reasonable. In such circumstances, we conclude that we comfortably may exercise our discretion to invoke our original jurisdiction. See, e.g., Sugar, supra, 108 N.J. at 159 (finding exercise of original jurisdiction appropriate where "evidence presented d[id] not pose issues of credibility or require substantive and intuitive evaluations of a trial court"); Patton, supra, 93 N.J. at 188 (opining "exercise of our original jurisdiction [proper]... since the findings rest[ed] on an undisputed record and not on matters of credibility, demeanor or personal view of the premises"). Furthermore, many aspects of the present record - e.g., transcripts, institutional records, the absence of affidavits submitted by the defense - bear on and assist in the performance of an objective evaluation of the issues. See, e.g., Baxter v. Fairmont Food Co., 74 N.J. 588, 601 (1977) (disregarding trial court's findings in respect of remittitur because such were "wholly unsupported by a statement of factual bases or objective elements of any kind"); id. at 602, 602-04 (comparing "actual record" of case to trial court's factual findings in reversing grant of remittitur).

We add the following. PCR "is New Jersey's analogue to the federal writ of habeas corpus." State v. Milne, 178 N.J. 486, 491 (2004); see also State v. McQuaid, 147 N.J. 464, 482 (1997) (expressing congruence of PCR and federal writ of habeas corpus). Like the federal writ of habeas corpus, which is controlled by statute, 28 U.S.C.A. §§ 2241-55, PCR is created by Rules 3:22-1 to -12. A court of appeals reviews the legal conclusions of a district court on a petition for writ of habeas corpus de novo. Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993).

A court of appeals also reviews de novo aspects of a district court decision that present mixed questions of law and fact. McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999). And, although "[t]he factual findings underpinning the[] legal conclusions are reviewed for clear error," Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), credibility determinations are given greater deference unlike the evaluation of the documentary record. U.S. v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997). Indeed, where a district court does not hold an evidentiary hearing in respect of a habeas corpus petition, the court of appeals may exercise de novo review over the factual inferences drawn from the documentary record by the district court. Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir. 1991), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991). Thus, our decision to conduct a de novo review of both the factual findings and legal conclusions of the PCR court is within our appellate authority and, further, is consistent with the practices followed in federal habeas review. And, although normally in both forms of review a trial court's credibility findings would be entitled to deference, we note that here there are no issues that turn on credibility. Accordingly, we invoke our original jurisdiction in the review of this matter.

In conclusion, we hold that the PCR court demonstrated a diminished sense of responsibility in this capital proceeding, and repeatedly stated its belief, on the record and in writings, that defendant's sentence would never be carried out. Although the State points out that the PCR court read all the relevant documents, rendered five written opinions, and conducted an evidentiary hearing, among other things, we cannot conclude that by merely performing those tasks, the PCR court rendered its findings and conclusions with any sense of the proper respect for its responsibility and role in our capital sentencing system. We hold that the PCR court's findings and conclusions are null and void as a result of its injudicious performance. However, in light of the nature of both the claims of error and the record before us, we further determine that we may exercise our discretion to review the PCR court's factual findings de novo without remand.


A. Background and Procedural History

The facts of this case have been set forth extensively in our previous decisions in Harris I, supra, 156 N.J. at 134-141, and Harris II, supra, 165 N.J. at 307-314. We summarize them now, noting the evidence presented at both the guilt and penalty phases of defendant's trial only to the extent relevant to assessing his claims for post-conviction relief.

On December 17, 1992, Kristin Huggins (Huggins), a twenty two year old artist who lived with her parents in Bucks County, Pennsylvania, drove into downtown Trenton to paint a mural at an establishment known as the Trenton Club. According to the State's evidence, defendant, assisted by Gloria Dunn (Dunn), carjacked, robbed, raped, and murdered Huggins before she could discharge her task. When she did not return home that day, her parents reported her missing. Police found Huggins's red Toyota sports car the following day, but could not find her. The news media reported Huggins's disappearance, as well as a reward offer of $25,000 for information about her whereabouts.

On December 30, 1992, Dunn began conversing about Huggins's disappearance with the security guard at her apartment building in the Kingsbury Tower Complex. The guard, Joseph Golden, also was employed as a detective with the Trenton Police Department. He made a mental note about Dunn's mention of defendant's name during their conversations and throughout January 1993, he attempted to draw Dunn into disclosing any knowledge about Huggins's disappearance, by, among other things, reminding her of the reward money.

That same month, the police investigation had turned its focus on defendant. Two young men from defendant's neighborhood, Brian Goss and Covvie Scott, came forward to tell police that they had observed defendant driving a red Toyota sports car with Pennsylvania plates on December 17, 1992. On January 13, 1993, defendant's nephew, Tariq Ayers, told the police that on December 17, 1992, he saw defendant with a red two-door sports car, and that defendant boasted he had hijacked it and "knocked off some white girl." A security camera and bank records also showed that defendant attempted to withdraw $400 from Huggins's account on December 17, 1992.

Meanwhile, Detective Golden continued to seek information from Dunn, who showed signs of having knowledge about Huggins's disappearance. She initially claimed that her sister, a psychic, had drawn a map indicating Huggins's whereabouts. But, on February 18, 1993, she located Huggins's body for police, admitting that she was with defendant when he murdered Huggins. Dunn gave several statements to the police over the next year and-a-half that often contained different details. She did not mention that defendant sexually assaulted Huggins until September 1994.

On June 8, 1994, the grand jury indicted defendant for purposeful-or-knowing murder by his own conduct, felony murder, first-degree kidnapping, first-degree robbery, first-degree aggravated sexual assault, second-degree possession of a handgun for an unlawful purpose, and multiple theft offenses. Three weeks later, the Mercer County Prosecutor's Office served defendant with a notice of capital aggravating factors, alleging that he murdered Huggins in the course of a felony, contrary to N.J.S.A. 2C:11-3c(4)(g), and for the purpose of escaping detection, contrary to N.J.S.A. 2C:11-3c(4)(f).

Defendant filed several pre-trial motions, including one for a change in venue or empanelment of a foreign jury because of the "massive pretrial publicity in the Trenton area" concerning his case. Harris I, supra, 156 N.J. at 135. The trial court denied defendant's request for a change of venue, but granted the motion to empanel a foreign jury, specifying Hunterdon County residents as the pool of potential jurors. After granting leave to appeal, the Appellate Division determined that Hunterdon County was an inappropriate choice because of its small minority population, and as a result, on remand, the trial court ordered that jurors would be chosen from Burlington County.

During jury selection, defendant made several motions "relating principally to the court's termination of attorney conducted voir dire, the court's limitation on inquiry into the racial attitudes of prospective jurors, and death qualification." Harris I, 156 N.J. at 136. The trial court denied those motions, but the Appellate Division granted defendant's interlocutory appeal. Ultimately, the Appellate Division affirmed. However, after one member of the panel "expressed concern at oral argument about the scope of the voir dire on racial bias," ibid., the trial court questioned potential jurors more thoroughly about their racial attitudes. The guilt phase of the trial began on January 10, 1996.

B. The Homicide and Guilt-Phase Trial

As we remarked in our earlier decision, "Dunn's testimony provided the only direct evidence linking defendant" to Huggins's murder. Harris I, supra, 156 N.J. at 136. The jury could have found the following factual account from her testimony and the State's other evidence.

Dunn and defendant met in September 1992 while waiting at the City of Trenton's welfare agency. During a phone conversation at around the time of Thanksgiving that year, defendant proposed robbing a luncheonette in downtown Trenton. Dunn agreed. They met at 8:00 a.m. on December 17, 1992, at the corner of Market and South Broad streets, to execute the robbery and proceeded toward downtown Trenton, defendant riding his bicycle and Dunn walking. Defendant showed Dunn the gun he was carrying and stated that he wanted to carjack somebody to obtain a car. Dunn asked defendant what he planned to do with the person he would carjack, and defendant replied that if the victim was black, he would tie her up and leave her somewhere, but that he would kill a white victim.

As they passed the Trenton Club, defendant saw a young woman drive her red sports car into the club's parking lot. He stated to Dunn: "[T]here's the car, I'm going to get that bitch." Defendant rode his bike to the rear of the parking lot, out of Dunn's sight, and carjacked and kidnapped Kristin Huggins. He drove the car back to Dunn, with Huggins in the front seat, and ordered Dunn at gunpoint to get into the car. Huggins sat on Dunn's lap and pleaded for her safety.

Defendant drove to and parked under the Southard Street Bridge. He ordered Huggins to open the front trunk and to get in it, worrying that any onlooker would be suspicious of two black people driving with a white woman. Defendant then drove back to the Trenton Club to retrieve his bicycle. After hiding the bike, defendant became frustrated with the noise Huggins was making from the trunk. He told Dunn that he "should have popped that bitch" earlier.

Harris then drove the car back to, and parked under, the Southard Street Bridge. Defendant and Dunn exited the car, and he opened the trunk. Dunn helped Huggins, trembling with fear, out of the trunk. Defendant then ordered Huggins to get into the car's front seat and to take off her clothes. Ignoring Huggins's crying and her pleas, defendant anally raped her and returned her to the trunk. Then, in a change of mind, defendant decided instead to kill her. As Dunn was helping her out of the trunk, defendant shot Huggins in the back of her head. He dragged Huggins's body a short distance from the car and placed a mattress over her.

Defendant and Dunn then drove to his mother's house on Cortlandt Street in Trenton to obtain a shovel to use to bury Huggins. Upon returning to the deserted area under the bridge, Harris shot Huggins again, this time in the face, to ensure that she was dead. He dug a shallow grave and threw her body in it. Rummaging through her belongings, he took approximately thirty dollars in cash and an ATM card from her art bag. After unsuccessfully attempting to sell Huggins's car in New York and Trenton, defendant abandoned it at a construction site behind Mercer Community College, smearing mud throughout its interior to hide fingerprints.

During the guilt phase, defense counsel worked to undermine Dunn's credibility. Although the defense essentially conceded felony murder, robbery, and kidnapping, counsel argued that the evidence did not corroborate Dunn's testimony with regard to the sexual assault and whether defendant was actually the trigger person. The defense emphasized Dunn's twenty-month delay in reporting that rape was involved, the many inconsistencies among her versions of events, her motivation for reward money, her failure to help Huggins, her plea bargain with the State, and her character problems, which included prior drug dealing. Counsel also attacked the police investigation for prematurely ruling out other possible suspects, such as the neighborhood drug users and dealers who testified against defendant.

The State's case supported Dunn's testimony. Underwear stains and rectal swabs taken from Huggins's body tested positive for a substance found only in seminal fluid. Other evidence placed the murder weapon in defendant's possession before and after Huggins's disappearance. A ballistics expert testified that the bullets found in Huggins's body came from the gun that authorities found on Harris when he was arrested on unrelated charges, ten days after her disappearance. Harris's nephew, Tariq, who testified that defendant bragged about "knock[ing] off some white girl," also stated that he bought that gun for his own use, but then gave it to defendant before December 17, 1992. Also in line with Dunn's testimony, as well as relevant to the other charges, the police discovered Huggins's hair and coat fibers in the trunk of her car, and more fibers were found on a shovel retrieved from defendant's residence.

C. Penalty Phase

Defendant submitted 180 mitigating circumstances to the jury under the heading of the "childhood of Ambrose Harris." The related evidence was limited to defendant's life from his birth, on May 9, 1952, to October 1965, when he was thirteen years old. The defense limited the scope of its mitigation case to prevent the State from presenting criminal and Department of Corrections records that depict defendant as a violent and dangerous menace. Defendant presented his mitigation case through Sheila Fairchild, a forensic social worker who compiled his social history, as well as through Dr. Ronald Gruen, a child psychologist, and Dr. Daniel Greenfield, a psychiatrist.

Fairchild's investigation yielded records from the public schools that defendant attended, the Child Guidance Clinic in Trenton (Guidance Clinic), and from the State's psychiatric hospital in Trenton. She also interviewed defendant, his mother, father, brother, half-sister, grandmother, a former teacher, and a psychiatrist who treated defendant in his youth. Fairchild twice interviewed defendant's mother, Mattie Williams (Mattie), but she refused to cooperate any further with Fairchild and defendant's counsel. As the State emphasized on cross-examination, Fairchild's social history of defendant included statements only from defendant, his mother, and his brother.

Fairchild described defendant as having a miserable childhood, due mainly to an abusive and unconcerned mother who wished she never had children. Mattie physically fought with defendant's father, described as a drinker who abandoned his wife and two small children when defendant was three years old. Records from the Guidance Center explicitly confirmed that Mattie was a neglectful, unhappy mother. Social workers described her as "apathetic" about her son's problems, as "somewhat annoyed and unresponsive" when defendant tried to embrace her, and as perceiving her son mainly as a burden.

Defendant told Fairchild that he was physically abused by his mother, and his step-father, Walter Williams. He stated that his mother would beat him with an ironing cord or strap, and records confirmed that Mattie did physically beat her sons. Defendant's brother told Fairchild that he and defendant actually would "jump in to take each other's lick," which, according to Fairchild, expressed a "cavalier attitude about [abuse, which is] not uncommon for children who are abused."

Based on his review of defendant's childhood records and Fairchild's findings, Dr. Gruen agreed that defendant was born into a "chaotic and dysfunctional home," with a destructive and disinterested mother. Gruen testified that the abusive, neglectful, and infantilizing treatment by his mother, produced in defendant "tremendous ambivalence and then rage against women." The child psychologist believed that the public school system ignored defendant's special needs and that the psychiatric hospital incorrectly diagnosed him multiple times. Doctors at the psychiatric hospital originally diagnosed defendant as having merely an adjustment disorder, and then, after his release and subsequent return to the institution, as psychotic, with childhood schizophrenia. Gruen disagreed with both diagnoses, testifying that defendant had a "severe conduct disorder" by the time he reached thirteen years old. In his opinion, defendant should have been placed in a residential treatment center for emotionally disturbed children.

Dr. Greenfield, who also reviewed defendant's records and Fairchild's findings, agreed with Gruen's diagnosis of Harris as a child. As to the neglect and violence of defendant's parents, Greenfield stated that defendant's formative years were "terrible" and that he should have been removed from the "squalor" of his "toxic environment" at home. Greenfield testified that "[if] I were trying to write a book about how not to raise a child during those years, I would do everything that was done to him. I would not be supportive, I would be abusive, I would be inconsistent. Sometimes infantilizing and sometimes not."

The State did not present new evidence at the penalty phase to support the escape-detection and felony-murder aggravating factors. Instead, it sought to weaken defendant's mitigation case by questioning whether Fairchild presented a fair and balanced social history, based on her evidence, and by underscoring that the defense did not give Gruen and Greenfield the opportunity to conduct a mental examination of defendant.

The jury concluded that the State proved both aggravating factors beyond a reasonable doubt, and that the evidence supported the defense's consolidated mitigating factor. It also found that the aggravating factors outweighed the mitigating factor beyond a reasonable doubt. The defendant was sentenced to death.

D. Post-Conviction Hearing

Defendant filed a verified petition for post-conviction relief on February 23, 2001, primarily alleging that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. In May 2001, he moved to recuse the trial judge and to interview the jurors who determined his guilt and sentence. The record does not indicate the precise reasons, but the judge transferred the matter to another trial judge, who presided over the post-conviction hearing. On April 25, 2002, that judge issued an opinion denying defendant's motion to conduct post-verdict juror interviews. On June 18, 2002, this court denied defendant's motion for leave to appeal the trial court's decision on that issue.

On June 4, 2002, the PCR court heard oral argument on the scope of the evidentiary hearing, including whether testimony would be allowed on certain claims and which proffered witnesses would testify. The court held that the State's attorney who prosecuted defendant, William Zarling (Zarling), would testify, as well as defendant's trial counsel, John Call (Call) and Thomas Scully*fn3 (Scully). The court precluded testimony from David Glazer, Esq., proffered by defendant as an expert in capital defense, although it did admit and consider Glazer's credentials, affidavit and written opinion. It also did not permit the proffered testimony of other witnesses, including Gloria Dunn, Detective Golden, Tariq Ayers, Sheila Fairchild, and two attorneys who represented defendant prior to Call and Scully.

The PCR court held the initial evidentiary hearing on August 6 and 7, 2002. On the first day of testimony, defendant moved to amend his petition in light of the United States Supreme Court's recently decided case, Atkins v. Virginia, which held that the Eighth Amendment prohibits states from executing offenders with mental retardation. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002). Defendant asserted that he has both mental retardation and mental illness, which bar his execution. The PCR court agreed to consider defendant's claim of mental retardation and the materials submitted in support of that contention, but determined to hear testimony only from a court-appointed expert. Accordingly, the court heard from Dr. Marc Friedman, a state-employed psychologist with expertise in mental retardation.

On October 14, 2002, defense counsel moved to recuse the trial court from consideration of his PCR petition and to amend his petition in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002). The PCR court denied both those motions. The court also denied defendant's petition for post-conviction relief, including his Atkins claim. Defendant now appeals to this Court as of right. R. 2:2-1(a)(3).

III. Standard of Review

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution provide defendant with the right to receive the effective assistance of counsel. In State v. Fritz, 105 N.J. 42, 58 (1987), we adopted the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) as the standard that would be used to evaluate claims alleging ineffective assistance of counsel. Strickland's two-pronged test requires that,

[a] reviewing court first must determine whether counsel's performance "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, and second, whether 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.

The first prong is satisfied by a showing that counsel's acts or omissions fell "outside the wide range of professionally competent assistance" considered in light of all the circumstances of the case. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.

The second prong is satisfied by a defendant showing "there is 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. The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached. Ibid.

[State v. Chew, 179 N.J. 186, 203-04 (2004)].

Deficiency Prong

In respect of the deficiency analysis, Strickland instructs reviewing courts to be "highly deferential," supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694, and to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)). In State v. Davis, that Strickland standard was held applicable to a capital trial. 116 N.J. 341, 356-57 (1989). In finding the Strickland standard to be appropriately demanding for the guilt phase of a capital proceeding, the Court expressed the expectation the "capital defense counsel... have an expertise regarding the special considerations present in capital cases." Id. at 356.

In respect of the capital sentencing phase, Strickland explicitly states that the same ineffective assistance standards apply. Supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The standards require some adjustment, however, to properly assess reasonableness in the context of the goals in a penalty phase proceeding. There, "the preparation and investigation for penalty phase... focuses not on absolving the defendant from guilt, but rather on the production of evidence to make a case for life." Marshall v. Hendricks, 307 F.3d 36, 103 (3d Cir. 2002) (Marshall VI).

Prejudice Prong

To demonstrate prejudice caused by the deficient performance of counsel during the guilt phase of a capital proceeding, a defendant "must show 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." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 800 L.Ed. 2d at 698. To prove prejudice during a penalty phase, however, "a capital defendant does not need to show that the result... would have been different." State v. DiFrisco, 174 N.J. 195, 219 (2002) (DiFrisco III). The prejudice test employed for evaluating penalty phase IAC claims "require[s] courts to determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the jury's penalty-phase deliberations would have been affected substantially." Marshall III, supra, 148 N.J. at 250 (emphasis added). Confidence in the outcome is key. The "reasonable probability" that deliberations would have been affected substantially means that there exists "a probability sufficient to undermine confidence in the outcome." DiFrisco III, supra, 174 N.J. at 220 (quoting Marshall III, supra, 148 N.J. at 250).

The aforesaid standards guide us in evaluating defendant's claims of ineffective assistance of counsel.

IV. IAC Claims: Guilt Phase

We consider first the several claims of ineffective assistance defendant asserts regarding the guilt phase of his trial. To the extent possible, related claims are combined.

A. Letter Written to Gloria Dunn

Defendant argues that his counsel should have moved to suppress a letter that he had written to Gloria Dunn while he was in prison. He presents a two-fold argument. First, he contends that Detective Golden violated his Sixth Amendment right to counsel by urging Dunn to elicit a letter from him after an attorney from the Public Defender's Office already had consulted with him in connection with a weapons possession charge. Second, he argues that his Fifth Amendment rights were violated because he was not given Miranda warnings prior to his writing to Dunn. He contends that such warning was necessary because he was in custody when he wrote the letter, and the detective's elicitation of it constituted interrogation.

1. Background

Ten days after Huggins disappeared, defendant was arrested on an unrelated weapons possession charge. At the time defendant was charged, and during Dunn's conversations with Golden, the police did not know that the weapon defendant was charged with possessing was the one used in Huggins's murder. After he was arraigned, the Public Defender's Office assigned Amira Rahman, Esq., to represent him on the weapons charge. According to defendant, during a January 15, 1993 visit with him in prison, Rahman informed him that he had become a suspect in Huggins's disappearance.

We turn to the eliciting of the letter and defendant's Sixth Amendment claim. As noted earlier, Detective Golden, a part-time security guard at Dunn's apartment complex, conversed with Dunn when she arrived at and left her building. In late December 1992, after Dunn mentioned defendant, Golden sought to learn something about Harris, or about Huggins's disappearance.

Sometime between December 30, 1992 and January 21, 1993, Golden asked Dunn directly if she had heard from Harris and reminded her of the reward for information about Huggins's whereabouts.

On January 21, 1993, when Harris was already a suspect, Golden and another detective went to the apartment complex to talk with Dunn. She indicated a preference to speak with them at the police station and so their discussion took place there. Dunn told them that she knew about Huggins's disappearance only through the newspapers, but she later volunteered that her sister was a psychic and had a map that showed the location of Huggins's body. Later, Golden drove Dunn home and, that evening, Dunn approached Golden with a letter that she had written, addressed to "Abu," which she said referred to defendant. In it, Dunn stated that she supported him and that the police would not find "the white girl." Golden became convinced that Dunn had been in communication with Harris and had useful information. He suggested that she revise the letter because he thought its wording was too specific and he was concerned that it might be perceived by Harris as a warning.

A week later, Dunn approached Golden with a revised letter, more general in tone. According to Golden, when Dunn asked if she should send it, he said that she should if she felt like it. Apparently, she did, and it provoked a response.

On February 17, 1993, Dunn brought Golden the response written by defendant. The letter, dated "2-12-93," is significant from defendant's perspective because jurors could tell from it that he was incarcerated. And, although it does not contain a confession, he contends it prejudiced him because it bolstered the testimony of Dunn who was not a credible witness. The letter includes the following passages:

Peace and Power Baby Sis. I am still staying strong and fighting on the front line. I am presently in receipt of your missive (with no date). I was very glad to hear from you. But before I get into this kite, my mom told me to tell you to call her sometimes... I need you to team-up with my cousin Yvone Pinkey from the Miller Homes, do you understand? Mom will clue you in on what you need to know. As well as Yvone. Watch yourself whenever you talk to anyone over the telephone, because there wired for sound.

Listen up, whenever you write to me in the future, never use your name and/or address. Use a fake return name and address. Never refer to yourself in any of your letters by name. Just pick out a name and fake address.

By the way, I am mailing you my letters under other inmates name. Because pigs be certainly reading mail that I receive and/or send under my name. Pigs haven't anything on me with that white female that's been in all the newspapers. So, they're trying to frame me up on fake rape charges. I'll get back with you on this after you talk to my mom & Yvone.

Maintaining Order


At the PCR hearing Call testified that "he did not believe there was a sufficient factual or legal basis upon which to make [a Sixth or Fifth Amendment suppression] motion[]." Defense counsel did move, however, to exclude the letter from evidence, arguing that jurors would be able to discern that Harris was incarcerated when he wrote it, and that its potential prejudicial harm outweighed its probative value. Nonetheless, the trial court admitted the letter and it was read to the jury. Moreover, the prosecutor referred during summation to Harris's instruction to Dunn to "never use your name and address" in any correspondences.

2. Analysis and Conclusion

Defendant's arguments of ineffective assistance of counsel in respect of his letter lack merit because there were neither Sixth nor Fifth Amendment grounds for counsel to have moved for suppression of the document.

Defendant's Sixth Amendment right to counsel is "offense specific" in its attachment. Texas v. Cobb, 532 U.S. 162, 164, 121 S.Ct. 1335, 1338, 149, L.Ed. 2d 321, 326 (2001); McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed. 2d 158, 166 (1991). Notwithstanding that Rahman had commenced her representation of defendant for the weapons charge against him, the police could have questioned defendant directly about Huggins's disappearance at the time that Dunn and Golden consulted about Dunn writing a letter to him. Defendant's Sixth Amendment right to counsel did not attach to the murder charge merely because he was charged with possessing the weapon used to murder Huggins. As previously noted, at that time, the police did not know that Harris's gun was the murder weapon; the weapons charge was unrelated to the Huggins murder.

With respect to Miranda warnings, defendant acknowledges that he had no present right to such warnings in light of Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed. 2d 243 (1990). In that case, the defendant, who was incarcerated on unrelated charges, admitted to an undercover officer that he committed murder. Id. at 294, 110 S.Ct. at 2396, 110 L.Ed. 2d at 249. In rejecting an argument similar to defendant's, the United States Supreme Court stated that Miranda warnings aim to protect defendants from possible compulsion associated with a police-dominated atmosphere. Id. at 296, 110 S.Ct. at 2397, 110 L.Ed. 2d at 250. "Coercion is determined from the perspective of the suspect," and when a suspect considers himself speaking to cellmates - or to a friend - there is no concern about coercion that prompts the need to give Miranda warnings. Ibid.

Nonetheless, conceding Perkins, defendant contends that we should hold that he is entitled to greater protection under our State Constitution or the common law. Essentially, defendant asks that we find trial counsel ineffective for not anticipating a change in law - a change which this Court has not indicated that it will adopt. Defendant's posture validates the State's argument that there cannot be a cognizable ineffective assistance claim when there is not yet a recognizable legal basis for the motion that defendant says should have been made.

Defendant is not helped by his reliance on In re J.D.H., 171 N.J. 475 (2002). Our decision in J.D.H. does not imply that being incarcerated and aware of one's status as a suspect is sufficient to trigger Miranda warnings. Rather, we stated that one factor to consider in determining when a suspect is in custody is whether the suspect knew that he was the focus of a police investigation. Id. at 480. That guidance is irrelevant here.

Harris was unquestionably in custody when he wrote the letter. He was in jail. The important question is whether, from defendant's perspective, there was a threat of coercion arising from the inherent pressures associated with custodial interrogations. We have no doubt that the letter sent to him by Dunn did not cause any such threat of coercion. Defendant's claim of ineffective assistance in respect of the Dunn letter is denied.

B. Statements to Probation Officer

Defendant argues that counsel should have moved to suppress statements that he made to a probation officer during a presentence interview concerning an unrelated robbery conviction. As in the prior claim, he contends that the officer violated his rights to counsel and against self-incrimination, and further, that the possibility of those statements being used against him during cross-examination prevented him from testifying at trial. Had those statements been suppressed, he claims he would have testified that Dunn actually killed Huggins. To support his claimed intention to testify, defendant points to his pre-trial affidavit, in which he cited that desire as grounds for bifurcating the trial phases.

1. Background

According to a presentence report, on December 20, 1992, three days after Huggins's murder, defendant approached a woman on the street, "jumped in front of her, pulled out a gun, and placed it against her forehead." The victim fell in fear, and Harris threatened to kill her. An acquaintance of the victim approached in a car and yelled out, "Are you alright?" Harris responded that she was, and he took her purse and walked away.

On January 6, 1993, the police, conducting an investigation into an unrelated sexual assault, executed a search warrant for the personal property of Harris. At that time, Harris was in a corrections facility being held on weapons charges. During their search, the police found property belonging to the December 20th robbery victim.

In May, 1994, Harris was convicted of first-degree robbery and other crimes related to that incident. To prepare a pre sentence report (PSR), Probation Officer Douglas Meckel interviewed defendant. Harris's attorneys at the time, Abatemarco and Hamilton, have submitted affidavits in this PCR stating that they "do not recollect advising Mr. Harris that he could, and ought to, decline any effort by the Probation Department to interview him." They also attest that they were not present during the interview and did not learn of the Probation Department's intention to interview Harris.

According to the PSR, defendant stated to Meckel that "he could never be 'normal' because he was 'a descendant of slaves,'" and is now the victim of a racist society and slavery.

He described himself as a "real man," and a "real black man," emphasizing that he "took" and "tak[es] what [he] want[s]." When asked if he had children, defendant responded that he may have "a couple out there," stating that he lets "the women take care of them" and likening himself, in that way, to "a wolf or a bear."*fn4

2. Analysis and Conclusion

If defendant cannot show that his statements prejudiced him, then his IAC claim fails. He cites this Court's comment in Harris I, supra, 156 N.J. at 160, that there "may" have been a reason he did not testify besides his criminal record, and now asserts that the looming presence of the PSR constituted that reason. However, we have no basis to suppose that Harris would have testified but for the PSR. Indeed, although many of his prior crimes would have been sanitized under State v. Brunson, 132 N.J. 377 (1993), the jury still would have learned of the number of his convictions and the degrees of those offenses. Id. at 391. We know that among defendant's convictions were "possession of stolen property, larceny, burglary, robbery, attempt to commit robbery, and unlawful possession of a weapon for unlawful purposes." Harris I, supra, 156 N.J. at 157.

As the State contends, that prior record, along with Harris's conduct during trial, support Scully's testimony describing the Meckel statements as, "perhaps," a "minor impediment" to Harris testifying "when considered with the extraordinary mountain of impediments that existed." Scully's testimony reveals a reasonable strategy, is uncontradicted, and amply supports the conclusion that there was no appreciable prejudice from the PSR in view of the other obstacles to Harris testifying.

It was... so abundantly clear I believe to both counsel that it would be an error of immeasurable proportion to put Mr. Harris on the stand based on his ongoing behavior during the course of the trial, based on that would possibly open the door to Mr. Meckel's report. That presentence report pales in comparison to the other concerns I had with respect to impediments placing Mr. Harris on the stand.

Accordingly, we conclude that defendant cannot satisfy the prejudice prong necessary for his ineffective assistance claim. Although we have addressed the prejudice prong first because it so readily disposes of this claim, we add that counsel's performance was not deficient in this respect -- it simply is unnecessary to engage in any lengthy discussion on the point. We note only that, in respect of defendant's right to Fifth Amendment protections, Miranda aims to protect suspects from "the inherently coercive nature of custodial interrogations."

State v. P.Z., 152 N.J. 86, 113 (1997). Because a presentence interview, which is conducted by a court officer for sentencing purposes, is not considered inherently coercive, "the majority of courts that have addressed this issue under the federal constitution" have held that Miranda warnings are not required. See State v. Cyr, 726 A.2d 488, 492 (Vt. 1999) (citing numerous federal circuit courts decisions).

Furthermore, even if Meckel violated defendant's Fifth Amendment rights by not administering Miranda warnings to him, the State still could have used the PSI statements for impeachment purposes. Statements taken in violation of Miranda may be used for impeachment when they were given freely and voluntarily. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971); State v. Burris, 145 N.J. 509, 525 (1996). It is doubtful that Harris's will was overborne in likening himself to a "wolf" or a "bear," or in giving his other statements, to Meckel.

Finally, as to the Sixth Amendment right to counsel, that right is triggered at "critical stage[s] of those [adversarial] proceedings where counsel's absence, or lack of advice, might derogate from the accused's right to a fair trial." Baumann v. United States, 692 F.2d 565, 577-78 (9th Cir. 1982); see Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 1408-09, 89 L.Ed. 2d 631, 639-40 (1986). Although we do not reach the question, we note that courts that have considered whether the right attaches during presentence interviews have determined that such interviews do not represent a "critical stage" in adversarial proceedings. See e.g., United States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991); United States v. Jackson, 886 F.2d 838, 843-45 (7th Cir. 1989); Brown v. Butler, 811 F.2d 938, 941 (5th Cir. 1987); Baumann, supra, 692 F.2d at 578. Thus, pursuant to that case law, although defendant had a right to have counsel present if he wished during the interview, the Sixth Amendment does not compel that counsel be present. In light of that existing case law, we do not regard counsel's failure to move to suppress, based on the argument defendant now asserts, to constitute deficient assistance.

C. Cross-examination of Tariq Ayers

Defendant argues that he was prejudiced by counsel's failure to cross-examine Tariq on his statement to defense investigators that police coerced him into implicating defendant.

1. Background

Defendant's fourteen-year-old nephew, Tariq, gave a statement to police on January 13, 1993. His mother, Beverly Ayers (Beverly), accompanied him. Tariq told the police that he saw Harris on December 17, 1992, "hanging out," in a red, two door sports car. Tariq approached Harris, who was alone, and the two went for a ride. Tariq also told the police that later, on December 26, 1992, he asked Harris how he had obtained the car, and defendant "said he hijacked the car from West State Street... from some white girl." More importantly, Tariq also told the police, "[Harris] told me he 'knocked off some white girl.'" Both Tariq and his mother signed the police statement, agreeing that it was "true, free, and voluntary."

According to the FBI records submitted in the PCR proceeding, on February 5, 1993, Tariq "reviewed and reaffirmed the statement he gave the [Trenton Police Department] on Wednesday, January 13, 1993." Additionally, Tariq told the FBI that he had given Harris a twenty-two caliber magnum pistol three months earlier, and that on the evening of Huggins's disappearance, Harris and two others went through Huggins's wallet in search of credit cards. The transcript of that February 5th interview also reveals that Tariq admitted to regular use of cocaine and to having used it during the previous evening and until 5:00 a.m. that morning. By the interview's conclusion, Tariq was crying and asking for his mother, who had been waiting in another room. Upon her entry into the interview room, Beverly observed that Tariq's nose was bleeding. She asked him if anyone had hit him, to which he replied, "No, No one hit me." When outside her son's presence, Beverly said to the FBI special agent, "I don't understand why this happens [referring to her son's nosebleed], but it has happened before."

On March 31, 1994 - fourteen months after his initial police interview and twenty months before his trial testimony - Tariq told Alan Goldstein, an assistant chief investigator for the Public Defender, that his January 1992 statement "was the result of beatings given to him by the police, in particular by an African American officer he knows as 'Rev.'" That same day, Beverly told Goldstein that "[w]hen she got [her son] after the interview he was bumped and bruised." Another investigator and one of defendant's attorneys (Hamilton) also were present at the interviews with Goldstein.

Goldstein interviewed Beverly again two weeks later. She repeated that Tariq told her that "Rev" had beaten him and that she observed bruises on her son. She said she complained to the detective at the time, "who implied to her that Tariq was being untruthful." She added that she was not present during the earlier part of the interview when the beating allegedly took place.

At defendant's trial, Tariq's testimony was consistent with his original 1993 statements to the police. He stated that he bought a gun in exchange for cash and crack in November 1992 because he was afraid of being a target for violence in the projects where he lived. When his sister, with whom he lived, made him get rid of it, he gave the.22 Magnum and three bullets to Harris.

Tariq also testified that during the evening of December 17, 1992, he encountered Harris alone in a two-seat, red car. At that time, Harris told him that he had hijacked it. Nine days later, on December 26th, Harris came to Tariq's sister's apartment and showed Tariq the.22 Magnum that Tariq had given to him. According to Tariq, Harris told him that he had "knocked off some white girl."

In his PCR petition Harris contends that trial counsel should have used Tariq's statement to Investigator Goldstein during cross-examination and that counsel should have called Beverly to the stand to confirm that the police had beaten Tariq. Defendant states that trial counsel (Scully) failed to provide a credible reason for his ineffective cross-examination and for not calling Goldstein, who was available to testify.

2. Analysis and Conclusion

Defendant's ineffective assistance claim must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2055, 80 L.Ed. 2d at 694, and the high deference that reviewing courts give to attorney performance. Ibid.

With that in mind, we note that, during the guilt phase of defendant's trial, the prosecutor tried to anticipate the defense's cross-examination of Tariq and to weaken that sting by exposing Tariq's pending charges for trespass, resisting arrest, and marijuana possession. He also was charged with receipt of stolen property for riding in Huggins's car. Ultimately he received probation for all of his pending charges. In addition, as a result of other behavior, he was placed in a juvenile facility. Thus, on direct examination the prosecution had Tariq admit that he had not been completely honest at first with police interrogators. He affirmed that during his initial two interviews, including the one on January 13, 1993, he did not reveal that he had given Harris a gun. Indeed, because he was afraid of being "locked up," he also denied giving Harris the gun that the police interviewers showed to him.

Consequently, cross-examination was not lengthy, but it was "devastating." Harris I, supra, 156 N.J at 183. Scully had Tariq confirm that during January 1993, he still was waiting to see how his pending charges would be resolved, and that after he spoke to the police in 1993, he got into additional difficulties with law enforcement that resulted in the "situation" he was in then (presumably, his confinement to a juvenile facility). Furthermore, Tariq admitted on cross that he smoked marijuana everyday, including on December 17, 1992, and December 26, 1992.

Instead of attending school, he would sell and smoke drugs. Defense counsel Scully also attempted to throw doubt on Tariq's identification of the gun. After Tariq stated that he never had seen a gun in his life before that one, Scully questioned his ability to distinguish it from other guns, let alone from other twenty-two caliber Magnums.

During the PCR hearing, Scully testified that he believed he had accomplished his cross-examination goal of damaging Tariq's credibility. Before Tariq took the stand, Scully had planned not to use the beating allegations on cross, and, at the PCR hearing, Scully testified that as direct examination of Tariq unfolded, he decided to stay with his plan.

Scully further testified that he did investigate Tariq's 1994 claims of being beaten by police. He discussed them with Goldstein and considered whether to use them. In evaluating their potential usefulness, he looked at them in the overall context of Tariq's statements: the different explanations for his nose-bleeding at the end of the first interview, the more than-one-year delay before the allegation was made, and that the allegation was made only once throughout Tariq's statements to investigators. When asked directly why he did not cross-examine Tariq about the beating allegation, Scully pointed to the lack of corroborating evidence. He expected the State to ask Tariq on redirect whether he had filed any complaints with the police department or in court. Without corroborating evidence, Scully believed that the State would be able to discredit Tariq's single recantation. In Scully's view, it would have been an "error of immeasurable proportion to bring [those statements] up."

As the PCR attorneys contend before us, Scully's explanation is not immune from criticism: If Scully wanted to paint Tariq as a liar, why should it matter if the State, on redirect, sought to show that he lied about being beaten by a police officer? Why not let the State expose Tariq as untruthful? Notwithstanding that criticism, Scully's decision fell within the wide range of strategy available to counsel.

Scully wanted to highlight Tariq's motive to gain favor with the police (his pending charges) to explain why he implicated Harris. Had Scully raised the allegations of a police beating, that would have pitted Tariq's interests against the police, a tactic to be avoided, as Scully confirmed. Further, Scully reasonably had to worry that jurors would have seen two options: either believe that Tariq was beaten into implicating Harris, or believe that Tariq lied about getting beaten. The jurors could have perceived Scully as attempting to have Tariq admit that he was beaten, and that strategy would overshadow his other efforts to portray Tariq as a cocaine using, crack-dealing, delinquent, seeking to protect himself.

The jurors might conclude that Tariq was a liar, but the defense's fear was that jurors would think Tariq's real lie was the beating allegation. Scully reasonably concluded that the better strategy was to attack Tariq's credibility with facts about his character and his pending charges.

Scully's strategic decision is apparent from the impeaching information that the State points out it could have used on redirect. Tariq waited sixteen months to complain of a police beating, his direct testimony matched his 1993 statement, and Tariq and his mother attested to the voluntariness of his 1993 statement. If defense counsel had asked his mother about her claims that Tariq was "bumped and bruised," the State could have confronted her with her previous statements about Tariq's frequent nose bleeds, highlighting his cocaine use. Finally, the State's questioning would have informed jurors that no formal complaint had been made by the Ayers, and that the only evidence of the alleged police beating was contained in Goldstein's brief, two-sentence report. Applying the standard of review that we must, we conclude that Scully's decision was within the range of professional competence and was based on a satisfactory investigation. Accordingly, we conclude that defendant has not established that trial counsel performed deficiently in respect of Tariq's cross-examination.

D. Decision to Call Ranfone and Castellano

Defendant argues that trial counsel rendered ineffective assistance by calling two witnesses who testified to seeing defendant in Huggins's car within two hours of her disappearance. Defendant emphasizes the significance of that testimony because "the only direct evidence" that defendant was involved in Ms. Huggins's killing was the testimony of Dunn (quoting Harris I, supra, 156 N.J. at 136). The other evidence establishing defendant's possession of Huggins's car and ATM card came through testimony of several youths who had criminal records. The defense's theme was that any of those youths, or Dunn herself, could have been the killer.

Defendant now contends that trial counsel deviated from that strategy by calling two "independent" witnesses to testify that defendant was in Huggins's car two hours after her disappearance, and that the supposed benefit of disrupting the State's timeline was far outweighed by the prejudice he suffered from the women's testimonies. They were the "only witnesses without a motive to fabricate," he claims, and they established defendant's possession of Huggins's car at a time earlier than had testimony of any State witness other than Dunn. Indeed, defendant argues, in one respect Carmen Castellano's testimony was consistent with Dunn's testimony that she and defendant drove to Cortlandt Street in Trenton to obtain shovels to bury Huggins. Had counsel consulted with him, defendant says he would have objected to calling Mary Jo Ranfone and Castellano.

1. Background

Defense counsel explained that Ranfone and Castellano were called to undermine Gloria Dunn's credibility and her account of the December 17th timeline. Defense counsel wanted the jury to believe that Huggins was seen alive in her car on Cortlandt Street with Harris around 11:15 a.m. that morning. According to Dunn's account, Huggins was never in the cabin of the car on Cortlandt Street, indeed she would not have been alive that late in the morning of December 17th.

Ranfone testified that between December 10th and 18th, 1992, she saw a black man driving with a white woman in a "red shiny car" sometime between 11:15 and 11:30 a.m., tying the time of day to a job-related task. On direct, she described the black male as having a "mustache, with fairly medium to dark complexion, with a long nose." She described the white female as looking "sad or angry, pale." On cross-examination, the prosecutor elicited through questioning that Ranfone had very little time to look closely at the car's passengers, and that many of the details she "remembered" about features and clothing worn by the people in the red car were really images she perceived through the media and police photographs.

Castellano testified that on December 17, 1992, around 11:00 a.m., she saw her neighbor's son - Ambrose Harris - driving a small red car with a white female passenger. She stated that Harris parked near his mother's house on Cortlandt Street, argued with his passenger, and then exited the car. On direct and on cross, Castellano could not confirm precisely why she knew that December 17 was the date of her observations. She recalled that her father went to Puerto Rico around the 12th or 13th of that December, but alternately stated that her observations were made either before or after her father left. On redirect, she acknowledged that she did not know whether Huggins was the white woman she saw in the car.

2. Analysis and Conclusion

This claim does not require extensive discussion because there is no basis to conclude that counsel's performance fell below an objective standard of reasonableness by calling Ranfone and Castellano. Not only did their testimony conflict with the timeline provided by Dunn, the content of what they purportedly saw conflicted with her testimony.

Dunn never placed Huggins in the car alone with Harris, let alone driving down Cortlandt Street with him. Dunn testified that when Huggins was in the cabin of the car, she was sitting on Dunn's lap. Neither Ranfone nor Castellano observed a blond woman on anyone's lap. Furthermore, Dunn testified that Huggins was in the car's cabin only from the time she was abducted until their first visit to the deserted area under the Southard Street Bridge early that morning, well before 11 a.m.

The prosecutor's arguments to the jury concerning Ranfone and Castellano underscore our determination that defense counsel was not unreasonable in calling them. The prosecutor found their testimony troublesome to the State's case and argued that jurors should question the reliability of their testimony. In her summation, she asked the jurors not to believe that Ranfone and Castellano saw Huggins. She said these witness were "[n]ot sure of what date" they made their observations, and their descriptions were "not matching." Thus, the prosecutor argued that they conjured their descriptions "after they read of Kristin being missing, saw her photograph and of her car, [and] read this in the newspaper."

Defendant's PCR arguments do not overcome the "strong presumption" of reasonableness to be accorded to counsel's performance. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2055, 80 L.Ed. 2d at 694. Indeed, PCR counsel did not question defense counsel about this trial decision at all. Moreover, defendant cannot show prejudice. The State, in fact, argued that the testimony of Ranfone and Castellano conflicted with its theory, and that the jury should discredit their accounts. We conclude, therefore, that this ineffective assistance claim lacks merit.

E. Cross-examination of Gloria Dunn

Defendant next argues that counsel's cross-examination of Gloria Dunn failed to confront Dunn with his claim that Dunn was the trigger-person. Harris also argues that counsel failed to use effective impeachment material at their disposal in respect of inconsistencies among Dunn's multiple descriptions of the relevant events. For example, defendant contends that Dunn once reported that he kept his gun in his waistband the entire time, but on another occasion, she stated that defendant placed the gun on the car.

2. Analysis

As the State argues in its counter to this allegation of ineffective assistance, review of Dunn's testimony and of Scully's guilt-phase summation reveals the weakness of defendant's claim.

Scully launched a cross-examination attack on Dunn's credibility and the reliability of her testimony. He had Dunn repeat that she testified to and reported many critical "facts" that she never told the police in her initial statements. Most notably, she did not mention until September 1994 that a rape had occurred. She also did not repeat Harris's alleged stated intention to kill a white victim, but to spare a black victim, until January 1996. Scully's examination strongly suggested that Dunn was motivated to conjure those and other "facts" in order to gain a favorable plea bargain with the prosecution. Despite not helping Huggins when she had opportunities to do so, Dunn testified that she "cared about" Kristin. Scully's cross examination mocked the suggestion that she was testifying for any such reason. Moreover, Scully's cross-examination attempted to expose inconsistencies throughout Dunn's evolving narrative about December 17, 1992. For example, he had Dunn tell the jury that she had lied about certain details when she finally did tell police of the rape. (She first reported falsely that she was inside the car at the time). She admitted that she signed her February 1993 statement even though it contained false information about the location of a passerby, with a baby, who heard Huggins banging from inside the trunk. And, Scully's questioning emphasized that one of Dunn's professed reasons for not letting Huggins out of the trunk when Harris was temporarily out of sight, was because the trunk was jammed, despite Harris's subsequent ability to open it to get Huggins out.

Scully also succeeded in making Dunn waver on whether she ever abandoned her robbery intentions. At one point, she testified that she changed her mind on seeing Harris's gun, but later admitted that she was "still in on the robbery" even after Huggins was forced into the trunk. Despite saying she still planned to commit the robbery, she nonetheless depicted herself as Harris's second kidnapping victim.

Scully also attacked Dunn's character. He had her repeat that she was a drug dealer, that she intended to commit robbery in order to buy more drugs to resell, that she had been convicted of welfare fraud, and that she had minor children who did not live with her, but to whom she owed court-ordered support.

Even the cold trial transcript reveals how difficult a person Dunn could be. When Scully asked her to look at a prior police statement, she responded, "No, I don't want to read it." Dunn also demanded that Scully not say that they went "back to Cortlandt Street to get shovels because she had never been to Cortlandt Street, and she instructed Scully at one juncture to "[g]et to the point," which drew comment from the trial court. Thus, in his summation, Scully was able to ask the jurors to consider whether "anybody in the world tells Gloria Dunn what to do or what not to do."

Finally, despite defendant's claim that counsel did not accuse Dunn of being the trigger-person, Scully did make that suggestion through a line of questioning, at the end of which, Scully asked Dunn, "You didn't kill anybody, right?"

Q: And you were interested in them finding Kristin - Kristin, because this was bothering you so bad over these three months that - but you ...

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