STATE OF NEW JERSEY VS. TARI D. TURPIN (14-05-0885, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1236-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TARI D. TURPIN, a/k/a
TARID TURPIN, TARI TURRIN,
and TARI DEMOND TURPIN,
Defendant-Appellant.
______________________________
Submitted January 27, 2020 – Decided July 6, 2020
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-05-0885.
Joseph E. Krakora, Public Defender, attorney for
appellant (David J. Reich, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
In the early morning hours of August 25, 2013, defendant was a passenger
on a Port Authority Trans-Hudson (PATH) train when he got into a verbal
argument with two other passengers, D.D.1 and A.M., and then shot them with
a handgun loaded with hollow point bullets.
In June 2015, a jury found defendant guilty of two counts of aggravated
assault, possession of a gun for an improper purpose, possession of a gun
without a permit, making terroristic threats, possession of hollow point bullets,
and creating a risk of widespread injury or damage. Defendant was later
sentenced to a twenty-year prison term, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault of D.D., and a
consecutive ten-year prison term, subject to NERA, for the aggravated assault
of A.M. Defendant’s conviction and sentences were affirmed on direct appeal.
State v. Turpin, No. A-1745-15T2 (App. Div. June 8, 2017), certif. denied, 231
N.J. 539 (2017).
On January 8, 2018, a self-represented defendant filed a petition for PCR 2
claiming his trial counsel was ineffective for failing to: (1) appropriately advise
1
We use the victims' initials to protect their privacy.
2
As noted infra, defendant's petition was later supplemented by assigned PCR
counsel.
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him to testify in his own defense; (2) impeach D.D. with her most recent
conviction; (3) review discovery with him; (4) defend against the charge of
assault of A.M.; (5) investigate D.D.; and (6) interview witnesses. On
September 17, the PCR judge, who did not preside over defendant's trial, issued
an order and twelve-page written decision dismissing the petition without an
evidentiary hearing. In denying relief, the judge determined defendant failed to
establish a prima facie case of ineffective assistance of counsel under the two -
prong test of Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) and State
v. Fritz, 105 N.J. 42, 58 (1987), that the performance of trial counsel was
deficient and that, but for the deficient performance, the result would have been
different at trial.
Before us, defendant contends:
POINT I
THE PCR COURT ERRED IN NOT GRANTING
[DEFENDANT] AN EVIDENTIARY HEARING
REGARDING HIS CLAIM HIS COUNSEL WAS
INEFFECTIVE IN ADVISING HIM NOT TO
TESTIFY.
POINT II
THE PCR COURT ERRED IN NOT GRANTING
[DEFENDANT] AN EVIDENTIARY HEARING
REGARDING HIS CLAIM HIS COUNSEL WAS
INEFFECTIVE IN NOT IMPEACHING A KEY
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WITNESS AGAINST HIM WITH HER RECENT
CONVICTION FOR THIRD-DEGREE
AGGRAVATED ASSAULT.
POINT III
DEFENSE COUNSEL WAS INEFFECTIVE IN
FAILING TO TAILOR HIS SUMMATION TO THE
JURY CHARGE KNOWN TO BE FORTHCOMING
AND IN FAILING TO REQUEST A SEPARATE
JURY CHARGE CONCERNING CAUSATION.
Considering these arguments in light of the record and applicable legal
standards, we affirm the PCR judge’s decision as to Points I and II for the
reasons set forth in his written decision. However, as to Point III, although
raised for the first time in this appeal, we conclude defendant established a prima
facie claim and remand for an evidentiary hearing to avoid an unjust result as to
the aggravated assault of A.M. The hearing shall address why counsel did not
argue in summation that defendant's conduct of bringing a loaded handgun onto
a PATH train was not reckless and why counsel failed to request a jury charge
regarding causation.
I.
Because the PCR judge did not conduct an evidentiary hearing on
defendant's petition, we may review de novo the factual inferences the court has
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4
drawn from the record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div.
2014).
The shooting is summarized as follows:
At about 4:30 a.m., while riding the PATH train from
New York to Jersey City, defendant and his female
companion got into an argument with another
passenger, D.D. During the argument, defendant pulled
out a gun [out of his pants (shorts) pocket], and then
returned it to his pocket. He then began to pull the gun
back out of his pocket, and D.D.'s friend, A.M,
intervened. According to A.M., he put his left hand
over the pocket containing the gun, and put his right
hand on defendant's wrist in an effort to keep him from
pulling out the gun. Defendant fired the gun, shooting
off three fingers of A.M.'s left hand but also wounding
himself in the leg. By this time the train had reached
Jersey City, and defendant exited the train, still holding
the gun. He paused, turned, and fired two shots at D.D.,
hitting her once in the leg and shattering her ankle.
Defendant fled through the PATH station, discarding
the gun on a ledge, where it was later recovered by the
police. Shortly after the incident, the police
apprehended defendant a few blocks from the PATH
station. The shooting set off a panic inside the PATH
station and resulted in a shutdown of PATH train
service.
Virtually the entire incident, including defendant
committing the shootings and discarding the gun, was
captured by the PATH system's security video cameras.
The videos were played for the jury. The State also
presented testimony from the individual from whom
defendant obtained the gun, a Glock 9 model loaded
with hollow point bullets.
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[Turpin, slip op. at 3-4 (footnote omitted) (internal
citation omitted).]
II.
We address defendant's claims in the order presented to us.
A.
Counsel’s Advice to Defendant Not to Testify
In his PCR petition, defendant contended his decision not to testify at trial
was due to trial counsel's ineffective assistance in advising him not to testify.
After considering the trial record and the parties' arguments, the PCR judge
determined the contention was without merit. We agree.
After the State rested and outside the jury's presence, defense counsel
notified the court defendant was the only defense witness and asked the court to
voir dire him regarding his decision to testify. Counsel stated:
I've advised [defendant] so there's no
miscommunications that if he testifies[,] he will be
subject to cross-examination, one, with regard to his
three prior felony convictions which include, I want to
say, burglaries or thefts in or about 1999. They will be
sanitized. And he has a gun conviction in 2005 out of
[the] State of New York. He received a three with a
one. That the State would be able to ask him [to] say
the degree of the crime and the sentence he received.
....
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Also, I've advised him that he runs the risk and the State
will, if they want, impeach him with his statement.
Even though the [c]ourt has suppressed his statement to
[police] . . . if he testifies[,] he could be impeached with
that.
So, at this time, it's [defendant's] decision.
The following colloquy ensued:
THE COURT: Okay, . . . what you want to do? You
want to be a witness or not?
[DEFENDANT]: Yes.
THE COURT: You want to testify? Okay. . . . I didn't
hear.
[DEFENDANT]: Yes.
THE COURT: All right. And as [your counsel]
explained to you, I suppressed [the] statement you
made to the police based upon the law. But if you say
something that's contradictory to what was said in the
statement they have the right to impeach you . . . or
present it to you and then . . . show the jury you said
something different at a different time. That's what
impeach means. You understand that?
[DEFENDANT]: Yes.
THE COURT: And you also understand that your prior
convictions, they'll all be . . . sanitized. The jury will
be made aware of your prior convictions, the date of the
offense, and the sentence you received and the degree
of the crime. You understand that?
[DEFENDANT]: Yes.
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THE COURT: Okay. All right.
Immediately after the colloquy, counsel's request for a five-minute break
was granted by the court. When the proceedings resumed, counsel stated
defendant had changed his mind about testifying. The court then engaged
defendant as follows:
THE COURT: Okay. . . . [I]t's your decision you do
not want to testify?
[DEFENDANT]: Yes.
THE COURT: That's your decision? . . . [O]f course
you've consulted with [trial counsel]. He's done a
wonderful job representing you. But it's your decision
not his, you understand that?
[DEFENDANT]: Yes.
THE COURT: And . . . you don't want to testify. You're
sure?
[DEFENDANT]: Yes.
THE COURT: Okay.
To offset his representations to the trial court, defendant's affidavit in
support of PCR provides:
I wanted to testify at trial to explain to the jury how I
was not the aggressor, yet it [was A.M.] who attacked
me. We were surrounded by a large group of
intoxicated individuals on the PATH train that night.
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The actions that I took were justified to defend myself,
[my female companion], and her two children. I
explained this [to] my trial attorney, yet he advised
against me taking the stand despite my insistence that I
need to tell the jury what really happened that night
from my perspective.
With this record in mind, the PCR judge found counsel was not ineffective
in advising defendant regarding the ramifications of testifying. The judge
reasoned:
The record is clearly indicative of two things: first, that
defendant unequivocally decided to not take the stand
when pressed, resolutely stood by his position. Second,
this decision was a strategic one, made easier by the
risk of impeachment of defendant with his extensive
array of prior indelible offenses convictions and
involvements with the criminal justice system.
Considering this argument under the Strickland lens,
defendant’s argument must fail because a strategic
decision agreed-to and affirmed-by a defendant on-the-
record of his choice in not taking the stand does not
overcome the strong presumption that counsel's
conduct fell outside the "wide range of professionally
competent assistance[.]" 466 U.S. at 690; see also
Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1
on R. 3-22-2(a) (2019).
The PCR judge explained that because defendant could not satisfy the first prong
of Strickland, analysis of the second prong was not necessary.
We discern no basis to disturb the PCR judge's ruling on this issue. Our
examination of defendant's claim and review of the record convinces us
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9
defendant has not established by a preponderance of evidence a prima facie case
of ineffective assistance of trial counsel when he chose not to testify at his trial
and, thus, there was no need for an evidentiary hearing. See State v. Nash, 212
N.J. 518, 526 (2013) (holding defendant has the burden to establish his or her
right to PCR "by a preponderance of the credible evidence") (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)); Preciose, 129 N.J. at 462 (ruling a court
reviewing a PCR petition based on claims of ineffective assistance of counsel
has the discretion to grant an evidentiary hearing if a defendant establishes a
prima facie showing in support of the requested relief); see also State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding the mere raising
of a claim for PCR does not entitle a defendant to an evidentiary hearing). There
were no disputed issues of material facts regarding defendant's decision to
exercise his right not to testify that prevented the PCR judge from resolving
defendant's claim. See State v. Porter, 216 N.J. 343, 354 (2013).
Defendant contends counsel gave him "extremely poor advice," and
counsel's quick, last minute consultation with him was insufficient to adequately
fulfill the minimal professional norms under our Rules of Professional Conduct.
RPC 1.2(a) requires that "[i]n a criminal case, the lawyer shall consult with his
client and, following consultation, shall abide by the client's decision on . . .
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whether to testify." RPC 1.4(c) requires "[a] lawyer shall explain a matter to
the extent reasonably necessary to make informed decisions . . . ." Yet,
defendant failed to present any competent evidence, such as a certification, that
these RPCs were violated.
There was no indication counsel did not properly consult defendant,
thereby rendering defendant's allegations as nothing more than "bald
assertions," and falling short of establishing a prima facie claim of ineffective
assistance. See Cummings, 321 N.J. Super. at 154. It is evident from the trial
record that defendant's decision not to testify was ultimately his choice. The
mere fact defendant chose not to testify and was found guilty is not a reflection
that counsel's advice regarding the potential consequences of testifying
constituted ineffective assistance.
We add further that even assuming counsel was ineffective in his advice
to defendant regarding defendant's decision not to testify, there is no basis to
conclude defendant was prejudiced under Strickland's second prong due to
counsel's advice. Defendant's credibility would have been significantly
questioned due to his criminal record, and there is no plausible basis to conclude
his testimony would have altered the jury's verdict.
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B.
Counsel’s Failure to Impeach D.D.
Defendant's PCR petition contended trial counsel was ineffective for not
seeking to impeach D.D.'s credibility by presenting evidence she was convicted
of a third-degree aggravated assault just two weeks prior to the trial. Again, the
PCR judge examined the trial record and determined the contention was without
merit. We agree.
In the midst of the argument with D.D., defendant pulled out a gun, and
then returned it to his pocket. D.D. testified that after she attempted to
deescalate the argument with defendant "[m]y friend [A.M.] he comes out of
nowhere. Like, I didn't see which direction he comes from. And he swings at
. . . defendant . . . and its instant[ly], like physical altercation. So, instant fight.
And we hear a shot go off." The bullet shot off three of A.M.'s fingers and
entered defendant's own leg. Surveillance video of the incident shows by this
time the train had reached its Jersey City stop, and after a protracted struggle
over the weapon with A.M., defendant exited the train, still holding the Glock
9. Defendant paused, turned, and fired two shots at D.D., hitting her once in the
leg and shattering her ankle.
During D.D.'s direct examination, the State preemptively disclosed she
was on probation at the time of the incident due to her conviction of a fourth-
A-1236-18T3
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degree crime but had successfully completed her probation before trial. On
cross-examination, trial counsel attempted to impeach D.D.'s credibility by
pointing out the conviction was for "recklessly using a weapon, specifically, a
knife, to commit an aggravated assault." However, counsel did not have D.D.
reveal to the jury that two weeks prior to trial, she was convicted of third-degree
aggravated assault.
The PCR judge rejected defendant's claim that counsel was ineffective for
not bringing up D.D.'s two-week old conviction because defendant was not
prejudiced. The judge reasoned:
[Defendant] fails to more strenuously consider the other
evidence at trial . . . [D.D.'s] testimony as well as the
PATH security video recording that captured "virtually
the entire incident, including defendant committing the
shooting and discarding the gun." (Turpin, slip op. at
2). Accordingly, not only is the [c]ourt unmoved that
trial counsel's decision not to further impeach [D.D.]
was based solely on a failure to investigate that [S]tate's
witnesses record, but that further impeachment would
not have had a modicum of effect in light of the other
evidence presented to the jury.
Defendant reiterates his argument that trial counsel's failure to impeach
D.D. using her most recent conviction of aggravated assault was ineffective
assistance of counsel. He argues the conviction was for a higher degree and
there was no reason for trial counsel not to confront D.D. about it, unless he was
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not aware of it. He asserts D.D. depicted herself as a reformed person; having
completed her probation and attending college to study criminal justice. That
portrayal and being a shooting victim, according to defendant, enhanced her
credibility before the jury, which could have been materially negated if the jury
was aware of her most recent and more serious criminal offense. Defendant
posits this would have shown that D.D. and A.M. were the initial aggressors,
establishing his right to defend himself and the shooting of A.M. was an
accident. We are unpersuaded.
Generally, a criminal defense counsel should impeach an adversarial
witness's credibility based upon the witness's criminal convictions, especially
where, as here, the witness was convicted of a third-degree offense a mere two
weeks prior to her testimony. However, defendant's reliance on State v. Holmes,
290 N.J. Super. 302, 313 (App. Div. 1996) to support his assertion that trial
counsel was ineffective for not seeking to impeach D.D. on her most recent
conviction is unavailing.
We take no umbrage with defendant's citation to Holmes, where we noted
"[t]he cross-examination of government witnesses regarding prior convictions
is extraordinarily dear to defense counsel. . . . [E]very effort must be made to
make a jury aware of government witnesses' prior conviction." Id. at 312. We
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also do not disagree with our further comment in Holmes, cited by defendant,
that
[t]he failure of defense counsel to impeach the
credibility of the State's principal witnesses by reason
of their prior criminality as well as by reason of their
hopes and fears as a result of their vulnerable status, is
impossible to square with the concept of effective
representation. Under no possible scenario could this
be viewed as within the range of legitimate decisions as
to how best to represent a criminal defendant.
[Id. at 314.]
In Holmes the failure to impeach the State's witness, who committed numerous
violent crimes, was prejudicial because there was "a pitched credibility battle
between defendant and the [eye-witnesses]. The outcome of the case depended
on who the jury believed." Id. at 308-10, 312.
Defendant, however, has failed to show he was prejudiced, as Strickland's
second prong requires, because counsel failed to impeach D.D.'s credibility by
confronting her concerning her most recent conviction. Considering the
surveillance video's depiction of the entire incident and D.D.'s testimony that
her friend, A.M., was the instigator of the incident, we join with the PCR judge
in concluding there has been no showing that impeaching D.D.'s credibility
beyond the State's introduction of her fourth-degree conviction with her more
recent third-degree conviction would have resulted in a different trial outcome.
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While the recent conviction could have tarnished D.D.'s credibility, her
testimony proved more helpful to defendant; noting she was drunk and had
engaged defendant in a quarrel before attempting to deescalate the situation once
defendant unveiled the gun, and that A.M.'s actions precipitated the shooting.
And, unlike the defendant in Holmes, defendant did not testify or present
witnesses, thus, he did not present any testimony contradicting D.D.'s testimony.
Hence, the PCR judge fittingly denied defendant's request for an evidentiary
hearing.
C.
Counsel’s Failure to Tailor His Summation to the Forthcoming Jury
Charge Regarding Recklessness and Failure to Request a Jury Instruction
on Causation.
Defendant's last PCR argument derives from the trial court's jury
instruction and trial counsel's summation as they relate to the shooting of A.M.
He contends trial counsel was ineffective for not tailoring his summation to the
forthcoming jury charge regarding recklessness, and for not requesting a jury
instruction on causation. Defendant acknowledges the PCR judge did not
address contentions that trial counsel was ineffective for not arguing lack of
recklessness in his summation and not seeking a jury instruction on causation.
Defendant contends even though PCR counsel did not raise these contentions at
oral argument, we can address them because "[t]he points raised . . . are derived
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from statements by . . . defendant in his certifications and pro se brief" and
"that there is sufficient information in the record for this court to address these
points."
Our review of defendant's self-represented verified PCR petition and
certification, as well as the brief and the undated certification subsequently
prepared by assigned PCR counsel, show neither contended trial counsel failed
to argue to the jury that defendant lacked recklessness in the shooting or to seek
a jury instruction on causation related to the aggravated assault charge against
A.M. See R. 3:22-8 ("The petition shall be verified by defendant and shall set
forth with specificity the facts upon which the claim for relief is based, the legal
grounds of complaint asserted, and the particular relief sought."). Since the
contentions were not raised before the PCR judge, defendant must show plain
error, meaning trial counsel's alleged ineffectiveness was "clearly capable of
producing an unjust result," R. 2:10-2., affecting his "substantial rights," State
v. Chew, 150 N.J. 30, 82 (1997) (quoting United States v. Olano, 507 U.S. 725,
734 (1993)). We therefore review the record relevant to defendant's contentions.
Prior to summation, counsel moved to dismiss the charge of aggravated
assault of A.M., arguing the indictment only listed the requisite mental state of
"purposely and knowingly" while D.D.'s testimony reflected the serious bodily
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injury caused to A.M. was either reckless, inadvertent, or in self-defense.3 In
denying the motion, the trial judge cited N.J.S.A. 2C:1-8(d)(3), which provides:
A defendant may be convicted of an offense included
in an offense charged whether or not the included
offense is an indictable offense. An offense is so
included when:
....
(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.
The judge found "that reckless is a lesser count of culpability." Counsel then
advised the judge he objected to instructing the jury on recklessness.
During summation, trial counsel stated:
[T]he [j]udge is going to instruct you on the law. And
I can only argue the facts that have been presented to
you. I can't make them up. I can only tell you.
So, you're going to hear the [j]udge instruct you on
aggravated assault. And [A.M.'s] own words, even if
accepted by all of you as true, does not constitute an
aggravated assault. It doesn't.
3
N.J.S.A. 2C:12-1(b)(1) provides "[a] person is guilty of aggravated assault if
the person . . . [a]ttempts to cause serious bodily injury to another, or causes
injury purposely or knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly causes such injury[.]"
(Emphasis added).
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It's – you heard [A.M.] specifically say I grabbed it – I
– well, he didn't say he punched him. [D.D.] said he
punched him. He denied it, even though the video
shows he did it. I grabbed his pocket. There was a
struggle.
Gun went off. That's not purposefully. That's not
knowingly. That's not aggravated assault which was
charged in the indictment.
While counsel argued A.M. grabbed the gun in defendant's pocket, he made no
reference to defendant not being reckless.
The prosecutor, in her summation argued:
Now, even if you don't believe that defendant shot him
[A.M.] purposely and knowingly. The [j]udge will still
tell you that you can find his conduct was so reckless
that he is still guilty of aggravated assault.
And I submit to you in determining recklessness. What
is the conduct of a reasonable person? Did the
defendant's conduct deviate so much from the standard
of care by bringing a loaded Glock with hollow point
bullets on to a PATH train, packed with people. His
own two infant children. Was that a gross deviation
that resulted in the serious bodily injury to [A.M.]? I
submit to you it was.
After summation, the judge denied counsel's objection to the State's
comments regarding recklessness. The judge thereafter charged the jury that to
find defendant guilty of aggravated assault they must find he "acted purposely
or knowingly or acted recklessly." The judge gave the jury extensive
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instructions on recklessness. The judge did not include any instruction on
causation, nor was it requested by either party.
It is apparent that because trial counsel did not argue to the jury
defendant's actions were not reckless, the jury was left to consider the State's
argument that it could find defendant guilty of aggravated assault against A.M.
if he was reckless, and the judge instructed the jury likewise. The State argued
defendant was reckless by merely bringing a loaded gun on a crowded PATH
train. Defendant now argues counsel's failure to address the mental state of
recklessness left him defenseless to the State's summation argument. Defendant
asserts this was compounded by counsel's failure to seek a causation charge4 and
4
Defendant cites Model Jury Charges (Criminal), "CAUSATION (N.J.S.A.
2C:2-3)" (approved June 2013), which provides when reckless or negligent
conduct is involved:
Causation has a special meaning under the law. To
establish causation, the State must prove two elements,
each beyond a reasonable doubt:
First, but for the defendant's conduct, the result in
question would not have happened. In other words,
without defendant's actions the result would not have
occurred.
....
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failure to argue A.M. was shot due to his superseding conduct in reaching inside
defendant's pocket for the gun and causing it to fire. If the request had been
made, defendant contends the trial court would have been obliged to grant it.
See State v. Green, 86 N.J. 281, 289-90 (1981) (ruling requests involving
essential and fundamental issues or substantially material matters should be
honored); State v. Belliard, 415 N.J. Super. 51, 70 (App. Div. 2010)
(determining the failure to tailor jury instructions to defense that volitional acts
of others could break the causal chain was plain error).
While we can find no legal authority that a trial counsel's failure to request
a jury instruction constituted ineffective assistance, our Supreme Court
concluded in State v. O'Neil, 219 N.J. 598, 615-17 (2014) that appellate counsel
can be found ineffective for failing to raise a jury instruction issue. Specifically,
in O'Neil, the Court found the appellate counsel's failure to challenge the lack
of a self-defense jury charge was deficient. Id. at 606, 612-13.
Second, [for reckless conduct] that the actual result
must have been within the risk of which the defendant
was aware. If not, it must involve the same kind of
injury or harm as the probable result and must also not
be too remote, too accidental in its occurrence or too
dependent on another's volitional act to have a just
bearing on the defendant's liability or on the gravity of
his/her offense.
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Given A.M.'s conduct in placing himself into the quarrel between
defendant, defendant's female companion, and D.D., by putting his hand inside
defendant's pocket – after defendant put the gun back in his pocket – to take
control of the gun, coupled with the State's argument that defendant was reckless
for carrying a loaded gun onto a public train, the jury's consideration of A.M.'s
conduct may have resulted in a different outcome on the conviction for
aggravated assault of A.M. had counsel addressed defendant's reckless state of
mind or lack thereof and requested a causation charge. Because we conclude
there is no illuminating theory as to why counsel did not argue a defense to
recklessness during summation and did not request a jury charge regarding
causation, defendant has made a prima facie case of ineffective assistance of
counsel.
We therefore remand for an evidentiary hearing to determine whether trial
counsel considered arguing defendant was not reckless and why a causation
charge was not requested. If at the hearing, the PCR judge determines defendant
satisfies his claim that counsel's performance fell below professional norms, the
judge should determine the probability of whether the jury's verdict on
aggravated assault against A.M. might have been different.
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Defendant shall be permitted to supplement the record with any
documentation and legal argument that would have been provided in his PCR
petition. Of course, the State shall have the right to respond. The PCR judge
shall conduct a case management conference within thirty days of this decision
to schedule the remand submissions and hearing. We express no view on the
merits of defendant's contentions.
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
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