November 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREA HARRIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-07-1821-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Graves and Messano.
Defendant Andrea Harris appeals from an order entered on September 2, 2008, denying her petition for post-conviction relief (PCR), without an evidentiary hearing. After reviewing the record and applicable law in light of defendant's contentions, we reverse and remand for further proceedings.
A jury convicted defendant of first-degree murder for purposely or knowingly causing the death of Duane Harris on April 25, 1998, N.J.S.A. 2C:11-1 (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5(d) (count three). On June 29, 2000, after merging count two with count one, the trial court sentenced defendant to the minimum legal sentence for murder----thirty years in prison with thirty years of parole ineligibility. Defendant received a concurrent eighteen-month sentence on count three. The court also ruled that defendant's sentence was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant did not testify at trial. However, her version of what transpired was presented to the jury through statements she made to responding police officers, as well as a recorded statement given later the same day. Defendant's recorded statement includes the following description of events:
[A.H.:]*fn1... This morning we were just getting up, I had just talked to a few friends. I was talking to one of my models on the phone, cause I had made the decision to leave [Duane].... I said I can't go into depth explaining... what's going on... but I think for a while I'm just gonna have to put [distance] between us.... So then by this time [Duane] comes back, he comes in... he's yelling and screaming talking about [how my] voice is carrying down the hall.... But he just wanted to harass me, he came in there and I'm sitting there and... he puts down the phone, he pushes me over in the chair... then he took the phone and [threw] it, by this time my son comes out, [Duane] grabs him and turns him around and tells him go back in [his] room and watch TV.... Then he turns him around by the arm and jerks him and tells him go down the hallway, go in your room and watch TV, I'm stead[ily] yelling at him leave my child alone, you can holler at me all you want, you can do anything you want to do to me, just leave my child alone, just leave my child alone, he stead[ily] holler[s] at me, he's coming towards me, his hands were up in a position like he's gonna do something, like he's gonna choke me or do something to me... I told him just go away, don't bother me, don't bother me, don't bother, just leave me alone. And the next thing I knew he was bleeding.
[D.M.:] Did you stab your husband?
[A.H.:] I had to, [there] wasn't nobody else there.
[D.M.:] Earlier you told us that you reached back and...
[A.H.:]... I know I reached to get something, I know I was gonna protect me and my child and my house. I know what he was gonna do, he was going to hurt me and I didn't want to be hurt.
In his opening statement to the jury, defense counsel acknowledged that defendant had stabbed Duane and that he died as a result of the knife wound:
You will hear that she called 9-1-1. She told 9-1-1, I stabbed my husband. Please hurry. Please hurry. The police officer walks in. I stabbed my husband. Please help him. Before the police officer got there she had gone through two towels, trying to stop the bleeding and a washcloth, putting it on to try and stop the bleeding.
Nevertheless, defendant's attorney indicated defendant was acting in self-defense and was "wrongfully accused of murder."
In an unpublished opinion, State v. Harris, No. A-0158-00 (App. Div. Oct. 27, 2003), certif. denied, 182 N.J. 428 (2005), we affirmed defendant's convictions, but we modified the sentence to eliminate the NERA provision because the murder occurred before NERA was amended to expressly include the crime of murder. We also noted that the central issue at defendant's trial was the extent of her culpability:
The State's theory of the case was that [defendant] provoked an argument with Duane and intended to kill him so that she would be free to be with another man... with whom she was having an affair. Defendant presented her case as one of self defense: that on the morning in question, jealousy and anger caused the victim to physically menace defendant and Shakur, the four-year-old child they were raising, and that she picked up the knife and thrust it at the victim to ward off his anticipated attack. [Harris, supra, No. A-0158-00, slip op. at 2-3.]
On August 4, 2005, defendant filed a pro se petition for PCR, alleging that her attorney was "constitutionally ineffective" because he failed to introduce "into evidence material that would have supported [her] claim of self defense." Assigned counsel then filed a brief on defendant's behalf. Following oral argument on August 8, 2008, the PCR court denied defendant's petition for the reasons stated on the record. The court found that defendant failed to meet both prongs of the Strickland/Fritz test.*fn2
On appeal from the denial of her petition, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE "OUTCOME DETERMINATIVE" TEST APPLIED BY THE COURT WAS INCONSISTENT WITH THE "PRIMA FACIE" CRITERIA OF R. 3:22.
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE SUPPORTING THE DEFENDANT'S CLAIM OF SELF-DEFENSE AND TO PRESENT EVIDENCE THAT THE DEFENDANT SUFFERED FROM BATTERED WOMEN'S SYNDROME SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10, OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
We conclude from our examination of the record that the PCR court erred by rejecting defendant's ineffective-assistance-of-counsel claim without conducting an evidentiary hearing.
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie showing of ineffective assistance of counsel, "a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz two-part test. Id. at 463. First, he or she must demonstrate that counsel's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "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." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
To establish a prima facie case, a defendant "must do more than make bald assertions" that he or she was denied the effective assistance of counsel; he or she must allege specific facts demonstrating the deficient performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Once a defendant has demonstrated a prima facie case of ineffective assistance of counsel, he or she is entitled to an evidentiary hearing to determine whether defendant's evidence "is sufficient to engender a reasonable probability that the result of the proceeding would have been different." State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000); see also State v. Marshall, 148 N.J. 89, 158 (stating "[t]he purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced"), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
As previously noted, defendant elected not to testify. Nonetheless, in the prosecutor's opening statement, she told the jury to "very carefully consider the truthfulness or possible untruthfulness of... things that [defendant] said to the police officers on tape in the afternoon after the stabbing occurred." Similarly, in her closing remarks, the prosecutor focused on the veracity of defendant's recorded statement, telling the jury that defendant sold "the version of herself that she wanted the police to fall for.... It serve[d] her purposes."
On the day of the stabbing, defendant told the responding officers she was afraid that Duane was going to choke her because "she had been in a bad accident and she had broken her neck." In addition, defendant indicated in her recorded statement that as Duane was coming at her, "his hands were up in a position like he's gonna do something, like he's gonna choke me." Thus, defendant's self-defense claim was based, in large part, on her contention that she was particularly fearful for her safety because of her prior injury. Nevertheless, trial counsel failed to present defendant's medical records to confirm defendant sustained a fracture of the cervical spine in a motor vehicle accident in June 1987, and that a halo device was fastened to her head using "four fixation screws... utilizing six pounds of torque."
According to defendant, her medical records would have also discredited the testimony of Oscar Roach, a State's witness who "grew up" with defendant, because Roach testified he was not aware that defendant broke her neck; he never saw defendant "wearing a halo device"; defendant never complained about neck injuries; and he had never seen "two bolt marks in the side of her head." Thus, defendant argues that her trial attorney was deficient for failing to present critical evidence, which "would have painted a clearer picture of a fearful woman who [was] terrified at the prospect of suffering another injury to her neck."
In her recorded statement, defendant claimed that Duane had previously "black[ened] my eye, he's bruised my arms, he bruised my body, he's choked me." In addition, defendant's attorney told the jury in closing: "Their relationship, although eighteen years old, was rocky. There was prior abuse in that relationship. She told [the officers] that. It's on the tape. She had bruises before. She had been punched before. She had blackened eyes before." Nevertheless, counsel did not have Dr. Gary M. Glass, M.D., testify regarding his psychiatric evaluation of defendant, in which he concluded that defendant "acted in 'self-defense' to protect herself" from Duane. Moreover, defendant's attorney never asked Dr. Glass to consider whether defendant suffered from battered women's syndrome (BWS).*fn3
Defendant argues that the impact of BWS testimony cannot be minimized. In State v. Kelly, 97 N.J. 178, 187 (1984), the defendant stabbed her husband with a pair of scissors, causing his death. The defense sought to introduce expert testimony from Dr. Veronen that defendant was suffering from BWS at the time of the stabbing. The Court determined that BWS is an appropriate subject for expert testimony:
Dr. Veronen would have bolstered [defendant's] credibility. Specifically, by showing that her experience... was common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the jury understand that [defendant] could have honestly feared that she would suffer serious bodily harm from her husband's attacks.... This, in turn, would support [defendant's] testimony about her state of mind (that is, that she honestly feared serious bodily harm) at the time of the stabbing. [Id. at 201-02.]
As the Supreme Court has noted, BWS testimony "has become widely accepted as admissible evidence in self-defense cases because it has been determined to be useful in explaining conduct exhibited by battered women toward their abusers." State v. B.H., 183 N.J. 171, 183 (2005).
The Court has recognized that "when a defendant's defense to a murder charge rests on self-defense," and the defendant does not testify, evidence supporting the "defendant's subjective perception of mortal danger becomes crucial to the defense and to the jury's truth-seeking function." State v. Jenewicz, 193 N.J. 440, 451 (2008). In the present matter, defendant contends that trial counsel's failure to present readily available evidence that would have bolstered her self-defense claim and corroborated her statements to the police was objectively unreasonable. In determining whether defendant is entitled to an evidentiary hearing, we have viewed the facts alleged in the light most favorable to defendant, and we conclude that the proffered evidence was sufficient to establish a reasonable likelihood that defendant's claim will ultimately succeed on the merits. See Preciose, supra, 129 N.J. at 462-63. Accordingly, defendant is entitled to an evidentiary hearing for "a more robust exposition of the facts surrounding [her] claims." State v. Allegro, 193 N.J. 352, 372 (2008).
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.