STATE OF NEW JERSEY VS. ANDRE MELLS (11-12-2140, 11-12-2142, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2575-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,
v.

ANDRE MELLS, a/k/a
RAHMEL JONES, RAMEEL
JONES, JOSH MELLS, RAHJAN
MILLS, ANDRE WHITE,
AUNDRE MELLS, ANDRE
MELS, TYREE WHITE,
JAMALE EDWARDS, TYRELL
WHITE, and TYREE SCOTT.

     Defendant-Appellant.
____________________________

                   Submitted June 1, 2020 – Decided May 4, 2021

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 11-12-2140
                   and 11-12-2142.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Brian D. Driscoll, Designated Counsel, on
                   the brief).
             Theodore N. Stephens II, Acting Essex County
             Prosecutor, attorney for respondent (Lucille M.
             Rosano, Special Deputy Attorney General/Acting
             Assistant Prosecutor, of counsel and on the brief).

       The opinion of the court was delivered by

OSTRER, J.A.D.

       Defendant Andre Mells appeals from the trial court's denial of post-

conviction relief after an evidentiary hearing on some of his claims. Mells

collaterally challenges his convictions for first-degree purposeful murder and

related second-degree weapons offenses.

       On appeal, he contends that his trial counsel provided ineffective

assistance by not obtaining his consent before urging the jury to consider lesser-

included offenses, and by not filing a Brady1 motion where the State failed to

preserve, or to provide the defense with, crime-scene video footage. He also

argues that trial counsel ineffectively addressed inconsistencies in three

eyewitnesses' descriptions, and responded ineffectively when one eyewitness

quoted the victim's identification of defendant. Mells argues:

             POINT I

             THE COURT ERRED IN FINDING THAT THE
             CLAIMS OF INEFFECTIVE ASSISTANCE DID NOT


1
    Brady v. Maryland, 

373 U.S. 83

(1963).
                                                                            A-2575-18
                                        2
           PREJUDICE DEFENDANT AND WOULD NOT
           HAVE CHANGED THE RESULT OF THE TRIAL.

           POINT II

           THE COURT ERRED IN FAILING TO FIND
           COUNSEL      RENDERED       INEFFECTIVE
           ASSISTANCE   FOR    FAILURE   TO    GET
           DEFENDANT'S PERMISSION TO ARGUE FOR THE
           LESSER INCLUDED CRIMES.

           POINT III

           THE COURT SHOULD ORDER A NEW TRIAL
           BECAUSE COUNSEL VIOLATED HIS SIXTH
           AMENDMENT RIGHT TO CHOOSE THE
           OBJECTIVE OF HIS DEFENSE.             MCCOY V.
           LOUISIANA, 584 U.S. ___ (2018)[.] [(]NOT RAISED
           BELOW[)].

           POINT IV

           THE COURT ERRED IN FAILING TO FIND
           COUNSEL INEFFECTIVE FOR FAILURE TO FILE
           A MOTION FOR THE STATE'S FAILURE TO
           PRESERVE AND TURN OVER THE VIDEO
           RECORD. BRADY V. MARYLAND, 

373 U.S. 83

           (1963).

     We affirm.

                                    I.

     We presume the reader's familiarity with the underlying case, which we

detailed on direct appeal. State v. Mells, No. A-1035-14 (App. Div. Apr. 3,



                                                                     A-2575-18
                                    3
2017) (Mells I). As we address the points on appeal, we will highlight relevant

facts from the trial and the PCR hearing.

      First, we consider Mells's argument that trial counsel ineffectively

addressed inconsistencies in eyewitness testimony, as well as one eyewitness's

disclosure that the dying victim named defendant.

      Because the court rejected this aspect of defendant's petition without an

evidentiary hearing, we review its related findings de novo.       See State v.

O'Donnell, 

435 N.J. Super. 351

, 373 (App. Div. 2014).

      Three eyewitnesses testified at trial: Deborah Jones, Arlene Hopkins, and

LaStarr LaGrier. Jones and Hopkins gave mutually-consistent testimony; but

LaGrier, in a recorded statement, claimed she saw things that Jones and Hopkins

did not.

      Jones was a security guard and a resident at the apartment complex where

the homicide occurred. She testified that her boyfriend dropped her off at the

complex on an early afternoon in May. While still in the car, she heard multiple

pop-pop sounds that she thought were firecrackers. After exiting the car, and

while she was standing by a fence, she saw the victim sitting on the ground a

little over forty-five feet away. And she saw defendant — whom she had known

for twelve years — approach the victim and then, at close range, shoot him three


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or four times with a firearm he held in his right hand. After defendant fled,

Jones went to help the victim as best she could until police, and an ambulance,

arrived.

      Jones testified that nothing obscured defendant's face. He wore a black-

and-white striped shirt, black pants ending above his ankles, and a white kufi.

Jones spoke to police on the day of the homicide, and identified defendant in a

photo array two weeks later. She also identified defendant in court and referred

to him as "Dre" in her testimony.

      Jones's mother, eyewitness Arlene Hopkins, testified that she heard

several shots from her second-floor apartment. When she looked down from her

window, she saw the victim collapse. She told him she would call 911. Then

someone approached and spoke to the victim — and shot him again.

      Much like her daughter, Hopkins said that the shooter wore a black-and-

white or blue-and-white shirt, black or dark blue pants, and a white or off-white

kufi. But Hopkins could only see the side of the shooter's face; she did not know

who he was until the victim named him. After she heard the victim say "Dre,"

Hopkins understood the shooter to be Andre Mells, whom she knew from the

neighborhood.




                                                                           A-2575-18
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      As we discussed in our prior opinion, the State had agreed not to elicit the

victim's statement.2 Mells I, slip op. at 4. After Hopkins disclosed it, defense

counsel requested a mistrial, which the trial court denied. Instead, the court

curatively instructed the jury to disregard the victim's naming of the shooter.

      But the court did not instruct the jury to disregard Hopkins's photo-array

identification. The State had agreed not to elicit the victim's statement — but it

never agreed to suppress the photo-array identification. According to Hopkins,

about two weeks after the homicide, she identified Mells as the shooter from a

photo array. She implied that she relied on the victim's statement when she

made this identification; specifically, she stated, "I did basically point out Andre

based on his name." However, in court, she declined to identify defendant as

the shooter, stating, "I can't say he's the actual shooter but that's the photograph

I -- I observed."

      Evidently to end on a positive note, the prosecutor returned to Hopkins 's

photo identification in the following exchange:

             Q.     . . . Who is in S-28?

             A.     Andre.

2
  The State apparently did so to moot a defense request to suppress the statement
on hearsay grounds. So, the trial court never ruled on the statement's
admissibility. We held that it was admissible as an excited utterance. Mells I,
slip op. at 14-16.
                                                                              A-2575-18
                                            6
            Q.   And you identify him as what, Miss Hopkins?
            What did you tell the police he did?

      But her identification of defendant drew on the victim's naming, which

the court had directed her to avoid.       Apparently in a quandary, Hopkins

answered:

            A.    His name is Dre --

      The prosecutor cut in,

            Q.   I mean -- I mean what did you tell him he did?
            Not what his name is.

            A.    What do you mean, what he did?

            Q.   What did he do -- what did you identify him as
            doing?

            A.    Shooting, not -- okay.

      On cross-examination, defense counsel evidently tried to suggest that

Hopkins selected defendant from the photo array because she discussed the case

with her daughter, who believed defendant was the shooter. Hopkins repeated

that she was unable to identify the shooter when he first approached and shot

the victim. Counsel elicited that Hopkins discussed the case with her daughter

and that, "by and by," Hopkins went "to the Prosecutor's Office and looked at

some photos and picked out a picture of Dre." Then, counsel again inquired

about Hopkins's discussions with her daughter.

                                                                        A-2575-18
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        LaGrier, the third eyewitness, gave a statement (which the police video-

recorded) more than two months after the homicide. At the time, she faced

multiple pending drug-related charges. At trial, LaGrier recanted her earlier

statement. She said that she was not present at the shooting and that she did not

recall what she previously told police. After a Gross3 hearing, the trial court

permitted the State, through the detective who interviewed LaGrier, to present

her recorded statement to the jury. 4

        In her statement, she evidently said she saw defendant shoot the victim.

Unlike Jones and Hopkins, LaGrier said that defendant's face was partly

obscured by a mask. She also said that defendant carried two weapons.

        LaGrier's statement about the guns was consistent with the evidence that

the shooter or shooters used .38 and .45 caliber bullets. By contrast, Jones said



3
    State v. Gross, 

121 N.J. 1

(1990).
4
   Defendant has not included, in the record on appeal, the video recording or
the transcript — as redacted — that was presented to the jury. A party must
include "such other parts of the record . . . as [he] should reasonably assume will
be relied upon by the respondent in meeting the issues." R. 2:6-1(a)(1)(I). An
appellate court need not attempt to review an issue when the relevant portions
of a record are missing. Cmty. Hosp. Grp. v. Blume Goldfaden Berkowitz
Donnelly Fried & Forte, P.C., 381 N.J. Super 119, 127 (App. Div. 2005). We
note also that the transcript was marked for identification, but not apparently
admitted into evidence. Consequently, the trial transcript should have included
a verbatim record of the recording replayed at trial. R. 1:2-2.
                                                                             A-2575-18
                                         8
she saw only one weapon. But she did not see the first shots, which felled the

victim.

      LaGrier also said that multiple persons were "beefing" and shooting,

although she did not identify anyone other than defendant. Jones and Hopkins

only saw one man shooting (although they both heard shots, or what may have

been shots, before making any observations). LaGrier was the only eyewitness

who said she saw defendant flee in a car (a white Chevrolet Lumina).

      On cross-examination, defense counsel elicited that three days after

LaGrier provided her incriminating statement, she secured a favorable

disposition of her pending drug matters; furthermore, she had recently secured

admission to Drug Court after violating probation. Defense counsel also elicited

LaGrier's statement that if she did tell police that she saw defendant kill the

victim, it would have been a lie. In addition, counsel highlighted differences

between LaGrier's testimony and that of Jones and Hopkins, and the detective's

decision not to pursue other leads suggested by LaGrier's statement.

      To secure PCR based on defense counsel's approach to the eyewitnesses'

inconsistencies and Hopkins's reference to the victim naming defendant,

defendant must satisfy both prongs of the test established in Strickland v.

Washington, 

466 U.S. 668

, 687 (1984); see State v. Fritz, 

105 N.J. 42

, 58 (1987)


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                                       9
(adopting the test for claims of ineffective assistance). That is, defendant must

show, by a preponderance of the evidence, State v. Holland, 

449 N.J. Super.

427

, 435 (App. Div. 2017), that (1) counsel "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment," 

Strickland, 466 U.S. at 687

; and (2) that there is a "reasonable

probability that, but for counsel's unprofessional errors, the result . . . would

have been different,"

id. at 694.

      Defendant failed to satisfy the first prong. Regarding the eyewitnesses'

testimony or statements, defense counsel ably tried to paint LaGrier's video

statement as a fabrication by a person seeking favorable treatment. As for

Jones's and Hopkins's testimony, defense counsel elicited from both women that

they conferred before they selected defendant from the photo array. Defense

counsel also tried to raise questions about the witnesses' ability to see the shooter

clearly.

      Regarding Hopkins's reference to the victim naming defendant, we are

unpersuaded that defense counsel, to provide constitutionally-effective

assistance, had to confirm in advance that the State had properly prepared its

witness not to volunteer evidence that the State had already agreed not to elicit.

Doing so may have been worthwhile, but it was not constitutionally mandated.


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Furthermore, after the disclosure, defense counsel vigorously argued for a

mistrial.

      And as we have already held, defendant did not suffer prejudice from the

disclosure. The jury was presumed to follow the court's curative instruction,

and, in any event, the victim's hearsay statement was admissible. Mells I, slip

op. at 15, 18-19.    In considering a petition for PCR based on ineffective

assistance of counsel, "the ultimate focus of inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged" and whether "the

result . . . is unreliable" because of counsel's failures. 

Strickland, 466 U.S. at

696

. In short, because defendant was not entitled to suppress the naming, its

inadvertent disclosure did not deny him a fair trial.

      Nor did defense counsel provide ineffective counsel when Hopkins later

referred to defendant as "Dre" during direct examination, or when defense

counsel himself referred to "Dre" during cross-examination. The State was free

to elicit that Hopkins identified defendant in the photo array. And defense

counsel may have used the name "Dre" to suggest that Hopkins selected

defendant from the array only after conferring with her daughter, who believed

defendant guilty.




                                                                            A-2575-18
                                       11
                                         II.

      Defendant also argues that counsel was ineffective when he neglected to

file a Brady motion concerning the State's failure to turn over surveillance video.

      At the PCR hearing, the investigating detective testified that he viewed

the video recording taken by a surveillance camera from atop a medical school

building, but he decided not to retain a copy of the video. He testified that the

camera did not record anything of evidential value; in particular, the video

lacked sufficient detail to help anyone identify the shooter. The detective

surmised that the camera might have been used to monitor traffic.

      Defense counsel testified that he did not file a Brady motion because he

concluded that the camera was too far away to help the defense, and the video

was "[o]ne less thing to deal with." He explained, "I didn't need any . . . evidence

of a guy running around with a kufi highlighted on that."

      The PCR court credited the detective's testimony and concluded that the

video did not contain material evidence. Therefore, a Brady motion would not

have changed the outcome of the trial.

      We discern no error. We defer to the PCR court's factual finding — based

on its credibility assessment of the evidentiary-hearing witnesses — that the

video contained no useful evidence. See State v. Nash, 

212 N.J. 518

, 540 (2013)


                                                                              A-2575-18
                                        12
(stating that a reviewing court must defer to the PCR court's fact-findings if

"sufficient credible evidence in the record" supports those findings, because the

PCR judge is better situated to assess witness credibility).

      Due process requires the State to disclose exculpatory evidence upon

request. 

Brady, 373 U.S. at 87

. "[T]o establish a Brady violation, the defendant

must show that: (1) the prosecution suppressed evidence; (2) the evidence is

favorable to the defense; and (3) the evidence is material." State v. Martini, 

160

N.J. 248

, 268-69 (1999). Evidence is "material" "if there is a 'reasonable

probability' that timely production of the withheld evidence would have led to a

different result at trial." State v. Brown, 

236 N.J. 497

, 520 (2019).

      Based on the court's finding, the evidence was neither favorable to the

defense, nor material. A Brady motion would have failed. And it is not

ineffective assistance of counsel to withhold a meritless motion. State v. O'Neal,

190 N.J. 601

, 619 (2007).

                                       III.

      Finally, defendant argues that his trial counsel was ineffective because (1)

he failed to obtain defendant's permission to argue for lesser-included crimes,

including manslaughter; and (2) his summation's references to recklessness were

both improper and prejudicial to defendant.


                                                                            A-2575-18
                                       13
      In summation, counsel tried to argue that the eyewitnesses had wrongly

identified defendant as the shooter. He pointed out that, because Jones saw

someone shoot a person who was already on the ground, she did not see "the

whole thing." He also suggested that Jones was actually up in her mother's

apartment when the shooting occurred.

      Counsel further argued that Hopkins could not make an identification

because she did not have a direct view. He suggested, too, that upon hearing

gunshots, Hopkins's first instinct was to protect the children she was watching

that day, not to look out the window.

      He also highlighted discrepancies between LaGrier's testimony and that

of Jones and Hopkins. He challenged LaGrier's motive, arguing that she would

"come in with any story" to get help in dealing with her pending charges.

      Defense counsel argued in the alternative that, even if defendant was the

shooter, he did not commit murder; rather, he committed one or more "lesser

included crimes":

            I submit to you, as I've indicated in my opening, Mr.
            Mells is not guilty of murder. He's not guilty of a
            purposeful and knowing murder. These circumstances
            that culminated in this result of Mr. Denmark [the
            victim] was something that, I submit, was developing.
            Some conflict between these individuals, and
            somebody was trying to send him a message. The intent
            was not to kill, recklessly causing death. Those are

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                                        14
           words that you're gonna [sic] hear by the Judge.
           Causing serious bodily injury resulting in death under
           circumstances manifesting extreme indifference to the
           value of human life. That's some of what's going on
           here.

     And after arguing that the eyewitness identifications were not accurate

beyond a reasonable doubt, counsel continued to press the "lesser included

crimes" argument:

           And it's just -- it's not -- we're talking about did he do
           it? Or didn't he do it? It's what did he do? If your
           conclusion is that Mr. Mells is the shooter, or part of
           what's going on that resulted in [the victim's] demise[,]
           I submit to you there's ample testimony here that are
           [sic] this is not a situation where one individual walks
           up to another individual and then shoots him ten times.
           There's a history. We can infer that, that there's a
           history. And as a result of that which we can infer, this
           is not purposeful and knowing murder. It's not
           purposeful and knowing. It's the result of recklessly
           [sic].

                 Who's living recklessly? That's for you to
           determine. But at the end of the day, that's what we're
           dealing with here and, I submit to you, the lesser
           included offenses . . . are more applicable to the facts
           and circumstances of this case that we know of, because
           I submit to you there's a lot that's unknown here.

     This alternative argument dominated counsel's summation. Counsel also

repeatedly suggested that the victim lived recklessly and engaged in reckless




                                                                        A-2575-18
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behavior, prompting multiple sustained objections and the court's admonition

that there was no evidence regarding the victim's behavior.

      Counsel testified at the PCR hearing that he disclosed his strategy to

defendant, although counsel did not obtain defendant's permission to argue for

the lesser-included offenses. Counsel stated, "I advised him . . . that, you know,

the case could be tried to a circumstance where the jury could have an

opportunity to consider a lesser included offense of . . . aggravated manslaughter

or manslaughter." Counsel added he advised defendant that "[m]aybe even a

self-defense might have been arguable, arguably relevant." Counsel called it a

"one-way discussion," because defendant was disengaged, asserting that, as a

sovereign person, the State lacked jurisdiction over him.

      Counsel testified that his purpose in summation was two-fold: firstly, to

place reasonable doubt in the jurors' minds about the shooter's identity;

secondly, if the jurors believed that defendant was the shooter, to convince them

that the "person [who was] running around doing these things . . . [was] more

acting in a reckless behavior [sic] as . . . opposed to purposeful and knowing."

      At the hearing, defendant testified that his trial counsel met him in the jail

only once, for about forty-five minutes, and that counsel met him away from the

jail for sessions of only ten to fifteen minutes. Defendant asserted that counsel


                                                                              A-2575-18
                                       16
"never asked [his] opinion or . . . consent regarding conceding guilt or reckless

[sic] in -- in hopes that it might -- in the hopes that the jury might find [him] not

guilty." Defendant also stated that he never discussed trial strategy with his

attorney. Notably, though, defendant did not testify that had counsel asked

permission for the "lesser included crimes" strategy, defendant would have

refused it.

      The PCR court found defense counsel more credible than petitioner.

Specifically, the court found that defense counsel "did confer with Petitioner

regarding affirmative defenses prior to trial." The court stated:

              While some of counsel's word choices in isolation
              could be read to suggest that Petitioner was the person
              who acted recklessly, taken in context it is clear that
              counsel's argument does not concede that Petitioner
              was the shooter. Furthermore, counsel testified at the
              evidentiary hearing in this PCR that it was his strategy
              to argue against the crime of murder, and in the
              alternative — if the jury believed that Petitioner did in
              fact shoot and kill the victim — that the jury should
              return a verdict of aggravated manslaughter instead of
              murder. Given the overwhelming evidence introduced
              at trial that Petitioner shot the victim, this was a valid
              strategy and did not prejudice Petitioner's defense.

      We shall not disturb the PCR court's determination. As the Supreme Court

recognized, some trial decisions are for the attorney to make, and others "are

reserved for the client." McCoy v. Louisiana, 

138 S. Ct. 1500

, 1508 (2018).


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                                         17
            Trial management is the lawyer's province: [c]ounsel
            provides his or her assistance by making decisions such
            as "what arguments to pursue, what evidentiary
            objections to raise, and what agreements to conclude
            regarding the admission of evidence." Some decisions,
            however, are reserved for the client — notably, whether
            to plead guilty, waive the right to a jury trial, testify in
            one's own behalf, and forgo an appeal.

            [Ibid. (citation omitted) (quoting Gonzalez v. United
            States, 

553 U.S. 242

, 248 (2008)).]

      Where does one place the decision to submit a lesser-included charge to

the jury? The decision is tactical, drawing on an attorney's experience; yet it

may affect the ultimate verdict. As Professor Uviller observed:

                   Apart from disagreements concerning the entry
            of an insanity plea, perhaps the most troubling source
            of contention is the decision whether to consent to
            submitting to the jury counts or charges lower than,
            or included in, the most serious count of the indictment.
            Tactically, the choice is whether to "go for broke," that
            is, have the jury vote up or down on the gravest charge,
            or to provide a possible locus of compromise. Part
            gamble, part experience, it is difficult to say whether
            this vital choice belongs among the defendant's
            reserved prerogatives or has been ceded to the wisdom
            and caution of counsel.

            [H. Richard Uviller, Calling the Shots: The Allocation
            of Choice between the Accused and Counsel in the
            Defense of a Criminal Case, 52 Rutgers L. Rev. 719,
            748 (2000) (footnote omitted).]




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                                       18
      The ABA's Criminal Justice Standards used to suggest that the defendant,

after conferring with counsel, should have the final word on whether to submit

lesser-included offenses; but the Standards do so no longer. 5 See Simeon v.




5
  ABA Standards "are guides to determining what is reasonable" in assessing
reasonably effective assistance of counsel. 

Strickland, 466 U.S. at 688

. The
commentary to the 1980 standards stated:

                   It is also important in a jury trial for the defense
            lawyer to consult fully with the accused about any
            lesser included offenses the trial court may be willing
            to submit to the jury. Indeed, because this decision is
            so important as well as so similar to the defendant's
            decision about the charges to which to plead, the
            defendant should be the one to decide whether to seek
            submission to the jury of lesser included offenses. For
            instance, in a murder prosecution, the defendant, rather
            than the defense attorney, should determine whether the
            court should be asked to submit to the jury the lesser
            included offense of manslaughter.

            [ABA Standards for Crim. Just., Standard 4-5.2 cmt. at
            4-68 (2d ed. 1980).]

By contrast, the 1993 standards stated only: "It is also important in a jury trial
for defense counsel to consult fully with the accused about any lesser included
offenses the trial court may be willing to submit to the jury," and omitted the
statement that the client's decision controls. ABA Standards for Crim. Just.:
Prosecution Function & Def. Function, Standard 4-5.2 cmt. at 202 (3d ed.1993).
The latest edition of the standards states that an attorney must defer to a client
regarding "any other decision that has been determined in the jurisdiction to
belong to the client." ABA Crim. Just. Standards for the Def. Function, Standard
4-5.2(b)(ix) (4th ed. 2017).
                                                                            A-2575-18
                                       19
State, 

90 P.3d 181

, 183-84 (Alaska Ct. App. 2004) (comparing ABA Standards

for Criminal Justice, Standard 4-5.2).

      Neither defendant nor the State point to binding New Jersey authority on

the issue of who — attorney or client — gets to decide whether to seek a lesser-

included instruction. Nonetheless, without establishing a general rule for all

situations involving lesser-included offenses, we are satisfied that defense

counsel here provided effective assistance because, as the PCR court impliedly

found, he conferred with defendant, and then exercised informed judgment to

argue for a lesser-included offense in the face of "overwhelming" evidence that

defendant was the shooter.6

      There is persuasive authority for that conclusion. See, e.g., Cannon v.

Mullin, 

383 F.3d 1152

, 1167 (10th Cir. 2004) (rejecting ineffective-assistance

claim where trial counsel asserted self-defense argument and, in the alternative,

argued lesser included offense, stating that "whether to argue a lesser-included

offense is a matter to be decided by counsel after consultation with the

defendant"), abrogated on other grounds, Simpson v. Carpenter, 

912 F.3d 542

,



6
  We recognize that the PCR court did not expressly find that defense counsel
conferred with defendant about lesser-included offenses. But, the court implied
as much, by crediting defense counsel over defendant, and by expressly finding
that defense counsel conferred with defendant, albeit about affirmative defenses.
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                                         20
576 n.18 (10th Cir. 2018); 

Simeon, 90 P.3d at 184-85

(rejecting ineffectiveness

claim where attorney declined to request lesser-included offenses and defendant

did not show that tactical choice to be unreasonable).

      Even if defense counsel did not disclose his strategy, we are unconvinced

that failure alone would constitute ineffective assistance, particularly absent

evidence that petitioner would have objected and dissuaded counsel. Some

courts have held that the failure to confer need not render an attorney's decision

regarding lesser-included offenses ineffective. See Mathre v. State, 

619 N.W.2d

627

, 628-30 (N.D. 2000) (rejecting ineffectiveness claim where trial counsel did

not confer with the defendant before deciding not to seek instructions on lesser-

included offense). In Van Alstine v. State, 

426 S.E.2d 360

, 363 (Ga. 1993), the

court declined to find that the failure to consult regarding lesser-included crimes

invariably constitutes ineffective assistance.      Although noting that "it is

critically important" that defense lawyers confer on such matters, the court

concluded that defense counsel was not ineffective because no evidence

suggested that the client would have rejected counsel's strategy had counsel

consulted him. Ibid.7


7
  We acknowledge that some courts have held that defense counsel must defer
to a client's wishes on the lesser-included question. See, e.g., People v.


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                                       21
      Defendant also misplaces reliance on the United States Supreme Court's

decision in McCoy. In McCoy, the Court held that an attorney must abide by a

defendant's expressed objection to a strategy of admitting 

guilt. 138 S. Ct. at

1509

. An attorney's failure to do so is a structural error that is subject neither

to harmless-error review nor to the Court's ineffective-assistance-of-counsel

jurisprudence.

Id. at 1510-11.

      For three reasons, McCoy provides no help to defendant. First, defendant

did not testify in the PCR hearing that he objected to counsel's decision to argue

lesser-included offenses, although the PCR court impliedly found that counsel

consulted with him. One of McCoy's holdings is directly on point: the Supreme

Court held that when an attorney consults with a defendant who does not protest

as McCoy did, but rather acquiesces in the strategy of admitting guilt, then

counsel's implementation of the chosen strategy does not violate the client's




Brocksmith, 

642 N.E.2d 1230

, 1232 (Ill. 1994) (following the 1986 supplement
to the ABA Standards). However, some defendants have complained (with
varying results) when the attorney did defer. Compare In re Trombly, 

627 A.2d
855

, 855 (Vt. 1993) (rejecting argument that defense lawyer was ineffective "by
requesting at the client's insistence that the court not instruct the jury that
attempted manslaughter is a lesser included offense of attempted murder"), with
Arko v. People, 

183 P.3d 555

, 560 (Colo. 2008) (reversing conviction where
trial court deferred to "defendant's decision over the objection of defense
counsel" and refused to give lesser-included instruction).
                                                                            A-2575-18
                                       22
Sixth Amendment rights.

Id. at 1505, 1509

(discussing Florida v. Nixon, 

543

U.S. 175

(2004)).

      Second, in McCoy, the attorney actually admitted his client's guilt. But

here, the PCR court found (with the support of sufficient credible evidence in

the record) that Mells's trial counsel did not admit defendant's guilt. Rather,

counsel urged the jury members to find that Mells did not shoot the victim. He

did encourage them to convict him of a lesser-included offense — but only if

they believed that Mells did shoot the victim.

      Third, courts have declined to apply McCoy retroactively to collateral

challenges of convictions. See Smith v. Stein, 

982 F.3d 229

(4th Cir. 2020);

Christian v. Thomas, 

982 F.3d 1215

(9th Cir. 2020). Defendant presents no

argument why we should do so here.

      Affirmed.




                                                                         A-2575-18
                                      23

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