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Date: 11-13-2017

Case Style:

STATE OF NEW JERSEY v. JASON PETTIS

Case Number: A-1137-16T3

Judge: Joseph L. Yannotti

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Christopher S. Porrino
Attorney General

Arielle E. Katz
Deputy Attorney General

Defendant's Attorney: Joseph E. Krakora
Public Defender

William Welaj
Designated Counsel

Description: On December 22, 2011, defendant was sentenced to an extended
term of fifteen years imprisonment on the aggravated assault
charge, with an eighty-five percent period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court
merged count two with count three, and imposed a concurrent seven
year prison term. A consecutive five-year sentence with no parole
eligibility was imposed on the certain persons not to have weapons
offense, resulting in an aggregate twenty-year prison term with
seventeen years and nine months of parole ineligibility.
Defendant appealed and, in an unpublished opinion, we
affirmed his convictions and sentence, but remanded to correct an



3 A-1137-16T3


error in the judgment of conviction.1 State v. Pettis, No. A
3508-11 (App. Div. Dec. 27, 2013). The Supreme Court denied
defendant's petition for certification. State v. Pettis, 218 N.J.
531 (2014).
The facts underlying defendant's convictions are set forth
in our earlier opinion and need not be repeated in the same level
of detail here. Pettis, supra, slip op. at 3-7 (App. Div. Dec.
27, 2013). Briefly summarizing, the State alleged defendant shot
the victim, Jarred Campfield, multiple times at close range. The
two men had allegedly been involved in a physical altercation
within the previous week. On the day in question, Campfield told
police "it was Jason" who shot him, and "he was wearing a white
t-shirt, blue jeans, and he had dreadlocks." Soon thereafter,
however, Campfield became uncooperative. At trial, Campfield
testified he did not know who shot him, and denied he provided
police with the name of the shooter.
Robert VanAnglen, a mutual acquaintance of defendant and
Campfield, testified he witnessed the shooting, and identified
defendant as the shooter. VanAnglen stated he heard defendant say
"what's up, home boy" to Campfield before shooting him five to
1 We directed that defendant's conviction for unlawful possession of a weapon merge with the aggravated assault conviction rather than the conviction for possession of a weapon for an unlawful purpose.



4 A-1137-16T3


seven times. The State also presented evidence that defendant
left New Jersey after the shooting and was ultimately located in
Illinois nearly a year later.
In August 2014, defendant filed a PCR petition alleging
ineffective assistance of trial and appellate counsel. PCR counsel
was appointed and submitted a brief contending trial counsel failed
to: (1) conduct an adequate investigation, specifically by failing
to locate and interview Campfield prior to trial; (2) effectively
cross-examine witnesses; (3) effectively counter testimony that
defendant left the State while on probation; and (4) present
effective opening and closing statements. Defendant also
requested an evidentiary hearing on his petition.
Judge Joseph Paone, who was also the trial judge, denied
defendant's petition by order filed on October 13, 2016. Judge
Paone determined defendant failed to establish a prima facie case
in support of his petition after carefully analyzing each of
defendant's contentions.
In his comprehensive oral opinion, Judge Paone found that
trial counsel's pre-trial investigation and failure to interview
Campfield did not fall below an objective standard of
reasonableness. The judge added:
[I]t's clear here that [defendant] is unable to articulate what benefit the interview of [Campfield] would have accomplished here.



5 A-1137-16T3


[Defendant] knew exactly what the victim was going to testify to prior to trial, and, in fact, the victim testified, essentially, in conformance with the information that had been provided by the [S]tate to the defense before the commencement of trial, and [defendant] has failed to demonstrate how this decision not to interview the victim has prejudiced him in any way.

The judge further reasoned that Campfield's reluctance to
testify for the prosecution was irrelevant to the State's pre
trial plea offer and would not affect the jury's determinations
because Campfield's on-the-scene identification of defendant as
the shooter was admissible as an excited utterance, N.J.R.E.
803(c)(2), and as a prior identification, N.J.R.E. 803(a)(3);2 and
because an independent eyewitness, VanAnglen, made a confirmatory
identification of defendant as the shooter.
With respect to defendant's other ineffective assistance of
counsel claims, Judge Paone found trial counsel's opening and
closing remarks sufficient. In his opening statement, counsel
"introduced the issue of identification[,] discussed the
prosecutor's role [and] urged the jury to pay [ ] careful attention
2 The judge also found Campfield's prior identification of defendant was non-testimonial under Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004) (holding that the Confrontation Clause only forbids the hearsay use of "testimonial" out-of-court declarants). See also Davis v. Washington, 547 U.S. 813, 832, 126 S. Ct. 2266, 2279, 165 L. Ed. 2d 224, 243 (2006) (creating an exception for otherwise testimonial statements under the "public safety exception").



6 A-1137-16T3


to the evidence[.]" Similarly, during closing remarks, trial
counsel discussed "the inconsistencies of the case, the witness'
credibility, [and] the fact [] defendant was not the shooter[.]"
The judge also found defendant was not prejudiced by counsel's
opening and closing statements.
Judge Paone rejected defendant's contention that trial
counsel failed to effectively cross-examine the State's witnesses.
He found that, while cross-examining Campfield, defense counsel
"established identification issues, specifically, that Campfield
had lied at some point about identifying defendant as the
shooter[.]" Similarly, while cross-examining VanAnglen, defense
counsel "highlighted the integral issue of identification in this
case by eliciting the [eyewitness's] description of the shooter
did not match [ ] Campfield's description based on what [counsel]
elicited through his adversarial testing of the prosecution's
witness."
Judge Paone found unpersuasive defendant's argument that
trial counsel was ineffective in exploring why defendant violated
his probationary program and fled to Illinois after the shooting.
Rather, to combat the State's theory that this showed consciousness
of guilt, defense counsel offered "an alternative motive for
defendant's flight, that his mother and family lived in
Illinois[.]"



7 A-1137-16T3


Judge Paone concluded defendant did not establish a prima
facie showing of ineffective assistance of counsel and therefore
no evidentiary hearing was required. This appeal followed, in
which defendant presents a single point for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

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, l04 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 or she made errors so egregious counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in 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 694, l04 S. Ct. at 2068, 80 L. Ed.
2d at 698.



8 A-1137-16T3


Here, defendant focuses his appeal on his contention that
trial counsel was ineffective for failing to conduct an adequate
pretrial investigation with respect to the victim, Campfield.
Defendant asserts, without any record support, that Campfield
could have potentially provided testimony that would have
exonerated him. Defendant further argues that an evidentiary
hearing should have been ordered so that trial counsel could have
been questioned about his alleged improper investigation.
When a defendant asserts his attorney has inadequately
investigated his matter, "he must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." State v. Porter, 216
N.J. 343, 353 (2013) (citing State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Thus,
a defendant "must do more than make bald assertions that he was
denied the effective assistance of counsel." Cummings, supra, 321
N.J. Super. at 170.
Here, defendant fails to meet this standard. He proffers no
competent evidence of what counsel would have discovered had he
interviewed Campfield, or how Campfield's testimony or the result
at trial would have differed had counsel interviewed him. In
short, defendant's claim that trial counsel conducted an
inadequate investigation is merely a bald assertion devoid of any
substance.

Outcome: The record also supports Judge Paone's findings on
defendant's other claims. Accordingly, we are satisfied from our
review of the record that defendant failed to make a prima facie
showing of ineffectiveness of trial counsel under the Strickland
Fritz test. The judge correctly concluded an evidentiary hearing
was not warranted. Moreover, in view of the evidence presented, it appears
defense counsel was quite effective in securing a jury verdict of
aggravated assault as a lesser-included offense of the charged
crime of attempted murder.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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