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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...