Opinion
DOCKET NO. A-2957-13T1
10-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID MOON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-02-0675. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Moon appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm in part and remand in part for a limited evidentiary hearing.
I
On February 15, 2005, a jury convicted defendant of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1). On April 1, 2005, the court imposed an aggregate sentence of forty-four years, with a thirty-four year period of parole ineligibility.
Defendant appealed, and we reversed and dismissed the charge for endangering an injured victim, but affirmed all other convictions. State v. Moon, 396 N.J. Super. 109, 118 (App. Div. 2007). In an unpublished portion of our opinion, we remanded for clarification of the sentence imposed for unlawful possession of a firearm. See State v. Moon, No. A-5402-04 (App. Div. October 9, 2007) (slip op. at 18).
In addition, we directed that the judgment of conviction be amended to eliminate all sanctions imposed as a result of defendant's conviction for possession of a firearm with an unlawful purpose, because that conviction had been merged with the conviction for murder. Ibid. None of the issues pertaining to the remand or to amendment of the judgment of conviction is relevant to the issues now before us.
The Supreme Court denied defendant's petition for certification. State v. Moon, 193 N.J. 586 (2008). On April 16, 2008, defendant filed a petition for PCR. Following oral argument, the PCR court denied defendant's petition by order dated November 15, 2013.
A copy of the petition was not provided to us.
Before addressing the issues presented, we must provide background information. It was not disputed defendant shot Corie Carter (victim) in the head and killed him, a fact he admitted in a statement he gave to the police. In fact, at trial, defendant's position was that he shot the victim in self-defense or, in the alternative, in the heat of passion resulting from a reasonable provocation.
Before trial, the State offered to recommend a term of twelve-years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, in exchange for defendant's guilty plea. Defendant rejected the plea offer, contending trial counsel advised that the jury would likely find he committed an act of passion/provocation manslaughter and not murder.
It was unclear from the record what charge or charges defendant would have to plead to under the proposed plea agreement.
The pertinent evidence at trial was as follows. The victim, defendant, Willie Carter (Carter), and another individual were gathered late one evening in a lot where they were drinking and socializing. According to Carter, defendant and the victim got into a quarrel and stood "face to face." Carter testified the victim pulled out and fired a gun three to four times toward defendant but none of the bullets struck him. The victim then put his gun away. To Carter, defendant appeared to be in shock but was not angry, and stayed and talked with him and the victim for ten or fifteen minutes after the shooting. Defendant then left but said he would return.
Willie Carter is unrelated to the victim. --------
In a recorded statement he gave to the police, which was admitted without objection, defendant said that after the victim shot at him, he and the victim agreed that things were "straight" between them and they shook hands. The victim even handed defendant his gun and said, "shoot me." Defendant however handed the gun back to the victim, who laughed and offered defendant something to eat. Defendant ate some food but afterwards felt "freaked out" by what had occurred and left to take a walk.
Defendant returned "to make sure that everything was okay" between him and the victim. Defendant walked up to and asked the victim if they were "cool," and gave the victim a hug and kiss. The victim then told defendant that if he ever told anyone what had happened, he would kill defendant. Defendant claimed that, upon hearing these words, "I just snapped, not really snapped, I just took out the, the gun I had that was in my pocket . . . I . . . pulled the trigger. The body dropped."
According to Carter, after defendant shot the victim, defendant said "don't nobody be shooting at me," and he dragged and kicked the body. Defendant also took the victim's gun. Carter went to his mother's home and reported what happened. She called the police and defendant was arrested and subsequently gave his statement. Defendant did not testify at trial.
At the conclusion of the trial the court read to the jury, among other things, the model jury charge in effect at that time for murder and passion/provocation manslaughter. Set forth below is a portion of the court's instruction to the jury:
Now, the third element that the State must prove beyond a reasonable doubt to find the defendant guilty of murder is that defendant did not act in the heat of passion resulting from a reasonable provocation.The passion/provocation manslaughter charge followed:
Now, passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.
Now, passion/provocation manslaughter has four factors which distinguish it from murder. In order for you to find the defendant guilty of murder, the State need only prove the absence of one of them beyond a reasonable doubt.
Now, the four factors are:
One, there was adequate provocation.
Two, the provocation actually impassioned defendant.
Three, the defendant did not have a reasonable time to cool off between the provocation and the act which caused death.
And, four, the defendant did not actually cool off before committing the act which caused death.
Now, the first factor you must consider is whether the State has proven beyond a reasonable doubt that the provocation was not adequate. Whether the provocation is inadequate essentially amounts to whether loss of self-control is a reasonable reaction to the circumstances.
Now, in order for the State to carry its burden, it must prove beyond a reasonable doubt that the provocation was not sufficient to arouse the passions of an ordinary person beyond the power of his control. For example, words alone do not constitute adequate provocation. On the other hand, a threat with a gun or knife or
a significant physical confrontation might be considered adequate provocation. Again, the State must prove that the provocation was not adequate.
The second factor — you must consider is whether the State has proven beyond a reasonable doubt that the defendant was not actually impassioned; that is, he did not actually lose his self-control.
The third factor you must consider is whether the State has proven beyond a reasonable doubt that the defendant had a reasonable time to cool off. In other words, you must determine whether the State has proven that the time between the provoking event and the act which caused the death was inadequate for the return of a reasonable person's self-control.
The fourth factor you must consider is whether the State has proven beyond a reasonable doubt that the defendant actually did cool off before committing the acts which caused death. That is, that he was no longer actually impassioned.
If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation or that the provocation did not actually impassion the defendant or that the defendant had a reasonable time to cool off or that the defendant actually cooled off and, in addition to proving one of those factors you determine — that the State has proven [the elements of murder] you must find the defendant guilty of murder.
If, on the other hand, you determine that the State has not disproved at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State [has proven the elements of
murder] then you must find him guilty of passion/provocation manslaughter.
[(Emphasis added.)]
During deliberations, the jury requested the court to give it a definition "in the simplest terms" of murder and passion/provocation manslaughter, as well as aggravated manslaughter, which the court had also charged. The court read the charge it had previously given on those offenses. After the jury deliberated further, it asked the court to re-read the charge on passion/provocation manslaughter and the court complied. The following day, the jury again asked for another reading of the charge on passion/provocation manslaughter, and the court again complied. Later that day, the jury convicted defendant of murder in addition to the other offenses.
II
Defendant presents the following issues for our consideration in his appeal.
POINT I - DEFENDANT'S MURDER CONVICTION MUST BE REVERSED BECAUSE OF COUNSEL'S INEFFECTIVENESS, AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial And Appellate Counsel Failed To Pursue The Erroneously Repeated Jury Charge Regarding Passion/Provocation Manslaughter.
B. Trial Counsel "Invited Error" That The Jury Review Defendant's Recorded Statement During Its Deliberations.
C. Trial Counsel Misadvised Defendant To Reject The State's Plea Offer.
D. Trial Counsel Failed To Consult Adequately With Defendant.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987).
In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the following two-prong test: (l) counsel's performance was deficient and he made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in the performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
We address defendant's claims seriatim. First, as defendant accurately notes, we recognized in State v. Docaj, 407 N.J. Super. 352, 361 (App. Div.), certif. denied, 200 N.J. 370 (2009), that the use of the word "inadequate" in the model jury charge, cited above, was erroneous. Defendant further complains the error was compounded every time the trial court repeated the charge to the jury, and that trial counsel was ineffective for failing to notice the error and voice the appropriate objection. Defendant also contends appellate counsel was ineffective for failing to argue on appeal that the use of this word in the charge was misleading and prejudicial.
As was correctly noted in other parts of the charge, to prove a defendant has not killed in the heat of passion resulting from a reasonable provocation, the State is required to prove that, after the alleged provocation, there followed a period of time that was "'adequate' for the return of a reasonable person's self-control." Ibid. Here, the question then is whether the use of the word "inadequate" for "adequate" in the subject charge was prejudicial. That question was answered in the negative in Docaj, where the defendant made the same argument about a charge that was substantially the same as the one here. Ibid. Specifically, we held the error was harmless when that charge was considered as a whole. Id. at 362. We stated:
Therefore, of the four references to the third factor and the State's burden, one was erroneous and three were correct. This was, then, an error that was isolated rather than pervasive in the charge . . . .
[T]he error here was but one iteration imbedded in a charge that contained three entirely correct articulations of the State's burden regarding the third factor. In both describing the elements of murder and in summing up the State's burden as to the factors of passion/provocation manslaughter, the charge clearly conveyed the State's burden of proof. Specifically, the jury was instructed three times that, as to this factor, the State's burden was to prove beyond a reasonable doubt "that defendant had a reasonable time to cool off." The isolated error's capacity to dispel that overall effect was minimal, at best.
[Id. at 364-65.]
For the reasons we found the use of the word "inadequate" in the charge in Docaj harmless, we find the use of the same word in the same charge in the same context did not have the capacity to mislead the jury here and prejudice defendant. Thus, even if counsel had been deficient for failing to voice an objection at trial or to raise an issue about this defect in the charge on appeal, there is no evidence this alleged deficiency adversely affected the accused's defense. We note further that defendant has not proffered an analysis of how the outcome would have been different had trial and appellate counsel taken the actions he claims were necessary to render effective assistance.
Defendant next contends trial counsel was ineffective for failing to object to the admission of his taped confession. We reject this argument for two reasons. First, defendant's statement provided key — if not the only - evidence that he acted in self-defense or in the heat of passion. Second, there is no evidence his statement damaged his defense, let alone negatively affected the verdict. Defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test because he failed to object to the admission of the tape.
Defendant also maintains trial counsel was ineffective because he advised against accepting a plea offer in which he would serve only a twelve-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Specifically, defendant certified his attorney informed him that he had "reviewed [my] case and that this was a case of passion provocation manslaughter which was punishable by ten (10) years and not a felony murder. Based on that advice [I] rejected the State's offer." There is no competing certification from trial counsel nor any other evidence in the present record, refuting these assertions.
If defendant's sworn assertions about his trial counsel's plea advice are true, counsel may have overstated the likelihood the jury would find passion/provocation manslaughter, a second-degree offense, see N.J.S.A. 2C:11-4(b)(2). Such advice, if indeed it had been provided, might have in turn deterred defendant from accepting the State's plea offer.
Based upon the limited record before us, we cannot tell why trial counsel would have thought there was a reasonable basis for a jury to find sufficient proof of provocation to justify defendant's actions. For instance, we cannot readily discern counsel's strategy in dealing with the fact that the victim reportedly did not indicate he was going to kill defendant in the immediate future. We also are not privy to what counsel advised defendant about the fact that the victim apparently threatened to kill defendant only if he divulged the victim's actions to a third party.
In addition, the present record does not refute defendant's allegation that counsel advised him to reject a plea offer in which he would have to serve only twelve years — when by contrast he would have to serve a thirty-year to life sentence if found guilty of first-degree murder, see N.J.S.A. 2C:11-3(b)(1). In the absence of a fuller record, this circumstance raises the spectre as to whether counsel was ineffective for steering defendant away from accepting the plea offer and inducing him to proceed to trial.
We are mindful the jury took substantial time in deliberations and seemed to have seriously considered the defense's passion/provocation theory by asking for that charge to be repeated. Even so, the record is unenlightening about what exactly trial counsel had advised about the chance of success on the provocation issue when the State's plea offer was still on the table.
We are satisfied our review of this issue would benefit from an evidentiary hearing to develop the record and learn more definitively what trial counsel advised defendant on the issue of the plea offer. If feasible, the court will hear testimony from both defendant and his former counsel at the hearing, enabling it to make appropriate credibility findings.
Accordingly, we remand for a hearing on this limited question. The hearing shall be completed and the trial court's decision issued within sixty days.
Finally, defendant contends trial counsel was ineffective because he did not consult with him when he was in the jail as opposed to the holding cell at the court house. We conclude this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part. We retain jurisdiction. Either party aggrieved by the trial court's decision on remand shall file a new or revised notice of appeal, as the case may be, within forty-five days of the decision. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION