Failure To Cite Case Decided After Appeal Submitted Is Ineffective Assistance

The New Jersey Supreme Court found ineffective appellate assistance of counsel who had failed to raise a self-defense argument predicated on a court decision issued eight days after the case was submitted on appeal.

From the court syllabus

 Early on the morning of March 18, 2001, defendant Naquan O’Neil fatally shot Hassan Hardy. In the days prior to the shooting, defendant and Hardy were involved in several verbal and physical altercations. On one occasion, Hardy slammed a car door into defendant and defendant punched Hardy. Later the same evening, Hardy accosted defendant, shot four shots in the direction of his legs without hitting him, and struck defendant in the head with the gun. Defendant then retrieved a gun from a nearby known gun stash and shot out the windows of Hardy’s car. A witness observed the shooting on the morning of March 18, testifying that she saw defendant approach Hardy, ask him if he liked playing with guns, and shoot him. Although the witness did not see Hardy pull a gun on defendant, police recovered a loaded and cocked gun that another man had removed from Hardy’s clothing following the shooting. Defendant was arrested and charged with first-degree murder.

At trial, defendant testified that his earlier altercations with Hardy prompted him to carry a .380 caliber handgun for protection. He claimed that he shot Hardy because Hardy had pointed a gun at him and he feared he would be shot. At the jury-charge conference, the prosecutor and defense counsel agreed that self-defense applied only to the murder charge but not to the lesser-included charges of aggravated manslaughter and manslaughter, which are predicated on reckless conduct. The court provided the jury with a self-defense instruction on the murder charge, advising that the defense was not applicable to the lesser-included charges. The jury acquitted defendant of murder, but convicted him of first-degree aggravated manslaughter.

Holding that the Rodriquez decision was not a “novel interpretation” of the law of self defense, the court concluded that the appellate attorney should bring to the court’s attention “controlling law that will vindicate the client’s cause”

Counsel should have brought to the attention of the appellate panel in defendant’s case the Appellate Division decision in Rodriguez, which, at the time of defendant’s appeal, was controlling law and clearly expressed that defendant was denied a valid defense to the lesser-included offenses of aggravated manslaughter and manslaughter. Counsel is expected to be aware of important and relevant changes in the law. Defendant was clearly prejudiced by counsel’s failure to raise the self-defense issue since, but for this error, there is a reasonable probability that the panel deciding defendant’s case would have applied the published holding of its sister panel and reversed defendant’s aggravated manslaughter conviction. Similarly, there is a reasonable probability that, had the jury been properly instructed, the outcome of the trial would have been different.

(Mike Frisch)