STATE OF NEW JERSEY VS. JAQUAN L. LEE (07-12-1019, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3209-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAQUAN L. LEE, a/k/a JAQUAN
JULIUS LEE, JACQUAN LEE,
JAQUEAN J. LEE, JAKWAN J.
LEE, JAKWAN LARRY LEE,
and JAKWAM L. LEE,
Defendant-Appellant.
_____________________________
Submitted June 1, 2020 – Decided July 21,2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 07-12-1019.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the briefs).
PER CURIAM
Defendant Jaquan Lee appeals from the trial court's order denying his
petition for post-conviction relief after an evidentiary hearing. Lee collaterally
challenges his conviction of multiple counts of first-degree robbery and weapons
offenses. He was ultimately sentenced, after remand, to an aggregate thirty-
five-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Narrowing his claim of ineffective assistance of counsel on appeal, he contends
that his trial counsel, as a result of her inexperience, (1) failed to adequately
explain the ramifications of a mid-trial disclosure that incriminating DNA,
which a report previously attributed to Lee's co-defendant, Tony Lee Canty,
actually belonged to Lee, and (2) failed to adequately counsel Lee about the plea
offer that the State resurrected mid-trial after the DNA mix-up came to light.1
We affirm.
1
Defendant does not address the trial court's rejection of his claims that his trial
attorney was ineffective in other aspects of her defense. Therefore, we deem
those claims waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011) (holding that an issue not briefed on appeal is deemed waived).
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I.
We assume the reader's familiarity with the facts underlying Lee's
conviction, which we reviewed in our opinion on his direct appeal. See State v.
Lee, No. A-2842-10 (App. Div. August 12, 2013). In summary, the State
presented evidence that one night, Lee, Canty, and a third person robbed at
gunpoint three groups of persons. One of Lee's former girlfriends testified she
drove Lee and the others from one robbery to another. A second former
girlfriend testified she loaned Lee the car, which matched the victims'
description, including its license plate number. Lee was arrested attempting to
flee from the stopped car when the police approached. Inside the car were
various items taken in the robberies along with items that separately linked Lee
to the vehicle. Lee matched the physical description the victims gave, including
wearing a distinctive Detroit Lions cap. One of the victims identified Lee in
court.
On top of this evidence, the State disclosed before trial that Canty's DNA
was found on one of the stolen cellphones and a Detroit Lions jacket that police
seized from the vehicle. However, as the State neared the end of its case, it
came to light that, as a result of a transposed number, the State's DNA report
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3
had mistakenly identified Canty as the DNA contributor. In fact, the DNA on
the items belonged to Lee. 2
As a result of this late disclosure, Lee's trial counsel asked the court to
exclude the DNA evidence, or grant a mistrial. She argued it prejudiced her
defense, although she did not explain what she would have done differently.
The court stated there were "no grounds for a mistrial." After an extensive
colloquy with counsel, the court permitted the State's DNA expert to testify that
buccal samples were taken from both defendants; the State tested items that were
likely to yield good DNA samples; and Canty was excluded from the DNA
samples taken from the phone and jacket found in the vehicle. The expert was
silent on whether the DNA from the samples matched Lee's DNA. Lee's trial
attorney did not cross-examine the expert. Although the parties contended
before the PCR court that the attorneys entered into a stipulation regarding the
DNA, we have found no evidence in the trial transcript of such a stipulation, and
neither party identified the point in the trial when the alleged stipulation was
presented to the jury.
The parties agree that in the midst of discussions about how to handle the
DNA mix-up, the assistant prosecutor advised Lee's trial attorney that he would
2
We did not address the DNA evidence in our previous opinion.
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permit Lee to accept the State's pre-trial plea offer. As before, the State offered
to recommend a ten-year sentence, subject to NERA, in return for Lee's guilty
plea and testimony against Canty, if needed. How counsel communicated the
offer and how she responded to the DNA mix-up is the focus of Lee's remaining
claims of ineffective assistance.
In brief, Lee alleged his attorney never informed him the plea offer was
back on the table; by contrast, his trial attorney asserted she told him, and he
rejected it. Although Lee and his attorney presented different versions of what
they said in discussions following the disclosure, PCR counsel emphasized their
point of agreement – that trial counsel was rushed and ineffectively counseled
defendant about the DNA mix-up, and the revived plea offer.
In his PCR petition, defendant contended that his trial attorney discussed
the DNA development for only several minutes in a hallway off the courtroom,
within earshot of two sheriff's officers. He contended he did not understand
everything she said to him. He said in his certification that he asked her if she
could ask the State to revive its pre-trial plea offer of a ten-year term, subject to
NERA. He said, to his "knowledge she never did because she never discussed
it with me."
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At the evidentiary hearing, Lee amplified his version of events. He
realized the DNA mix-up damaged his case. He could no longer argue there was
no forensic evidence tying him to the stolen items; and he feared jurors might
speculate that his DNA was found on the items, because only Canty would
explicitly be excluded. Nonetheless, he contended he did not understand
everything his counsel told him in the hallway. He said he did not "recall" that
she conveyed the revived plea offer during their discussion. He clarified that it
was only after they returned to counsel table that he asked her, "what 's up with
the State's plea offer?" He admitted he did not explicitly say he wanted to accept
it, but he asserted that his inquiry implied that he would accept it. He said his
attorney just "blew [him] off." He insisted he would have accepted the plea
offer, including testifying against Canty, if necessary. He asserted that he
declined the pre-trial plea offer because of the lack of forensic evidence against
him, not a disinclination to testify against Canty.
Lee's trial attorney supported his claim of ineffective assistance by
contending that she needed more time to explain adequately the significance of
the DNA mix-up, and the reasons why she advised him to accept the revived
plea offer. Although she had been in practice for seventeen years, and second -
chaired several criminal cases as an associate of a respected attorney, she never
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tried a case solo, let alone a first-degree criminal case. She said she was given
one week to prepare for trial, and, as a result of her inexperience, she did not
assert herself sufficiently. She claimed she did not present a vigorous argument
in support of a mistrial, and she did not insist on an adjournment, so she could
have a fulsome opportunity to discuss the developments in the case, including
the revived plea offer.
Regarding her hallway conference with Lee, she said, "I am sure that he
could not totally understand everything that I was explaining to him or the
ramifications of what I was explaining to him." She blamed herself for
discussing such an important matter under time pressure, in a hallway, within
possible earshot of sheriff's officers.
She testified that before trial, she and Lee discussed at length the State's
plea offer and she urged him to accept it, but he declined. At a pre-trial
conference, the trial judge informed Lee that if convicted he could face what
would be tantamount to a life sentence. Trial counsel recalled telling Lee that
she did not think there was a great likelihood of a consecutive sentence, and that
Lee's exposure was likely in the 20-25 years range. She acknowledged she was
wrong.
A-3209-17T4
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However, the DNA mix-up weakened the defense and strengthened the
argument for accepting the State's revived plea offer. She testified that she
should have taken more time to explain to Lee that they lost a major theme of
the defense – the absence of forensic evidence incriminating him and the
presence of evidence incriminating Canty. She said she should have counseled
him, with regard to the plea offer, that he needed to consider what was best for
himself. However, she insisted that she conveyed the plea offer to Lee in the
discussion in the hallway, and he rejected it. She also said she ineffectively
argued for the mistrial, and should have rejected the alleged stipulation
regarding the DNA evidence. 3
In PCR counsel's summation, she did not rest the petition for relief on the
claim that trial counsel failed to disclose the revived plea offer. Rather, she
argued that the circumstances surrounding the discussion led to confusion, and
trial counsel was obliged to have a more fulsome discussion of the ramifications
of the DNA mix-up, and the pros and cons of the revived plea offer. When PCR
counsel recalled Lee's assertion that he was never told of the revived plea offer,
3
As she recalled the stipulation, it permitted discussion that the DNA excluded
Canty, "but then [there would be] this wall of silence as to how or in what way"
it involved Lee. "[I]t certainly opened the door to a negative inference. I never
should have stipulated to it. It was harmful."
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the PCR judge interrupted to reject it. Noting Lee's motive to avoid a thirty-
five-year sentence, the court concluded Lee had "no credibility on that point . . .
I don't believe him at all." When the judge asked PCR counsel if she was
suggesting that trial counsel was "lying when she . . . [told] . . . him the deals
are back on the table," PCR counsel conceded, "I'm not saying she's lying , I'm
just saying there was a lot of confusion because of what happened . . . ."
The PCR judge credited the attorney's version of events and rejected
Lee's.4 The court found that despite trial counsel's assertions of her own
4
We note that Lee and his trial counsel testified on separate days before
different judges. The first judge fell ill after Lee testified. The second judge
completed the hearing pursuant to Rule 1:12-3(b). Lee's PCR counsel did not
object, nor did she ask the second judge to recall Lee. See R. 1:12-3(c) (stating
that a substituted judge, in order to fairly discharge his judicial duties, "shall
make such disposition as the circumstances warrant, . . . in a case tried without
a jury, by directing the recall of any witness"). We asked counsel to file
supplemental briefs to address whether the trial court was obliged, sua sponte,
to recall Lee. Cf. Fed. R. Civ. P. 63, and Advisory Committee Note to Fed. R.
Civ. P. 63 (stating a substitute judge "risk[s] error to determine the credibility
of a witness not seen or heard who is available to be recalled"). We appreciate
counsel's additional submissions. We conclude that, whether PCR counsel's
failure to request Lee's recall was strategic or an oversight, the court's decision
to proceed without recalling Lee does not amount to plain error, particularly
under the circumstances of this case. PCR counsel did not hinge the petition on
the judge believing Lee over his trial counsel. The thrust of PCR counsel's
argument was that the plea discussion, assuming it occurred, was
constitutionally inadequate. Therefore, not recalling Lee does not raise a
reasonable doubt the PCR court reached a result it "otherwise might not have
reached," or denied Lee a "fair [hearing] and a fair decision on the merits." State
v. Macon, 57 N.J. 325, 336, 338 (1971); R. 2:10-2.
A-3209-17T4
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inadequacies, she provided effective assistance of counsel. He noted that she
moved for a mistrial, but the trial judge found no basis for granting one.
The PCR judge also found that Lee received the "opportunity . . . to
reconsider the extraordinarily favorable 10-year plea offer that had been given
to him prior to trial." The court concluded that extensive discussion of the offer
was not needed to explain it to defendant, as it was the same offer that trial
counsel had discussed several times before trial, and Lee was "adamant in not
taking it." The PCR court noted that the trial "court granted a short recess to
allow the defendant to reconsider the exact same plea offer. . . . There was
nothing new."
The judge acknowledged trial counsel's testimony that the circumstances
prevented a full discussion. But, he found "the opportunity to discuss was a fair
and reasonable one and Mr. Lee was adamant in his assertions of innocence and
was unwilling to take the renewed 10-year plea offer which occurred in the
middle of trial. . . . He made the decision, which he is entitled to, to reject the
plea and go forward."
On appeal, Lee presents the following points for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
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CONVICTION RELIEF BECAUSE TRIAL
COUNSEL ADMITTED SHE WAS TOO
INEXPERIENCED TO HANDLE HIS TRIAL AND
DID NOT SPEND SUFFICIENT TIME EXPLAINING
THE DNA ISSUE WITH DEFENDANT.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE TRIAL
COUNSEL ADMITTED SHE WAS INEFFECTIVE
REGARDING HER DISCUSSIONS OF THE RE-
EXTENDED PLEA OFFER WITH DEFENDANT.
II.
Mindful of the PCR judge's opportunity to hear and see live witnesses,
"we will uphold the PCR court's findings that are supported by sufficient
credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). We
review de novo issues of law. Id. at 540-41. Applying that standard of review,
we affirm the PCR court's order.
To prevail on a claim of ineffective assistance of counsel, Lee was obliged
to satisfy the two-prong Strickland test by showing: (l) his counsel's
performance was deficient, and she made errors that were so egregious she was
not functioning effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
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different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); see also
State v. Fritz, 105 N.J. 42, 52 (1987).
The right to effective assistance of counsel extends to the plea bargaining
process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). "In the context of a guilty
plea, counsel is required to give a defendant information sufficient 'to make a
reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel,
724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,
43 (3d Cir. 1992)).
"Adequate assistance of an attorney is measured according to whether the
counsel has professional skills comparable to other practitioners in the field."
State v. Davis, 116 N.J. 341, 351 (1989). "'Reasonable competence' does not
require the best of attorneys, but certainly not one so ineffective as to make the
idea of a fair trial meaningless." Ibid. "The test is not whether defense counsel
could have done better, but whether he [or she] met the constitutional threshold
for effectiveness." Nash, 212 N.J. at 543. A defendant must overcome a strong
presumption that counsel exercised "reasonable professional judgment."
Strickland, 46 U.S. at 690. "No particular set of detailed rules for counsel's
conduct can satisfactorily take account of the variety of circumstances faced by
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defense counsel or the range of legitimate decisions regarding how best to
represent a criminal defendant." Id. at 688-89.
When a defendant claims his attorney's ineffective assistance caused him
to reject a plea offer, the defendant must prove that "but for counsel's deficient
performance there is a reasonable probability he [or she] and the trial court
would have accepted the guilty plea." Lafler, 566 U.S. at 174. A court should
not upset a conviction "solely because of [a defendant's] post hoc assertions . . .
about how he would have pleaded but for his attorney's deficiencies." Lee v.
United States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1967 (2017). Rather, a court
must consider "contemporaneous evidence to substantiate a defendant's
expressed preferences." Ibid.
Although Lee complains that his trial counsel spent insufficient time
explaining the DNA mix-up to him, the evidence reflects that he understood the
significance of the mix-up. His claim that he inquired about the plea offer at
counsel table reflects that he understood the mix-up was a significant, negative
development. Even if one credits his statement that he may not have
"understood everything that [his attorney] was explaining to [him]," he
understood his defense was weakened. Otherwise, he would not have inquired
whether the plea was still a possibility. Although counsel "could have done
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better," Nash, 212 N.J. at 543, by requesting and spending additional time to
discuss the DNA development at greater length, trial counsel successfully
conveyed the import of the development. Thus, we do not conclude trial counsel
was ineffective by providing what she views now as a rushed explanation of the
DNA mix-up and how she intended to respond.
We also reject the argument that trial counsel was ineffective in reviewing
the revived plea offer. As we have noted, the PCR court credited Lee's trial
attorney's version of events: she disclosed the revived plea offer during the
hallway discussion, and Lee rejected it. We are obliged to defer to the PCR
judge's fact-finding. The PCR judge did not observe Lee's demeanor when he
testified, because he testified before a different judge. But, the PCR judge, in
effect, characterized Lee's testimony as "post hoc assertions" of what he might
have done. Furthermore, Lee never flatly denied that counsel raised the plea
offer in the hallway conference. He said he did not understand everything trial
counsel said in the hallway discussion, and he did not "recall" her mentioning
the revived plea offer. And, although he claims he inquired about the plea offer
at counsel table, he did not expressly say he wanted to accept it.
As noted, on appeal, Lee does not directly challenge the trial court's
finding that trial counsel communicated the plea offer. Had trial counsel failed
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to communicate the offer at all, her ineffectiveness would not be open to debate.
Missouri v. Frye, 566 U.S. 134, 145 (2012). Rather, Lee argues that his trial
counsel was ineffective because she rushed; she did not secure more time; and
she did not convey in sufficient depth the reasons why she believed Lee should
have accepted the plea agreement.
The PCR court found that a more extensive discussion was not required
to satisfy the constitutional right to effective assistance, because Lee understood
the pros and cons of the plea offer; he rejected it pre-trial; he understood the
DNA development; and he rejected the plea offer mid-trial. Essentially, the PCR
court found that trial counsel was not deficient; and Lee suffered no prejudice.
We shall not disturb the PCR court's conclusion.
As trial counsel testified, she and Lee reviewed the plea offer during
extended discussions before trial. The plea offer that the State revived after the
DNA mix-up was the same one Lee had rejected. He was familiar with it; and
he was familiar with trial counsel's argument. Although there was an additional
factor favoring the plea offer in trial counsel's mind – the DNA mix-up – Lee
understood the ramifications of that development, too.
We do not minimize the potential value of a more extensive discussion.
A more experienced and assertive attorney may have asked for more time. She
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may have gotten some, but that is by no means certain. Trial counsel testified
that if she had more time, she would have encouraged Lee to think about what
was best for him – implying that testifying against Canty was the main stumbling
block. Whether more time might have led Lee to make a different decision is
not the test. Nor is the test whether the trial attorney could have done a better
job. The question is whether she provided the minimal level of competence
required by the Constitution. We shall not disturb the PCR court's determination
that she did.
Affirmed.
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