SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3188- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. TARI D. TURPIN, Defendant-Appellant.

__________________________

Submitted April 23, 2024

– Decided September 11, 2024 Before Judges Sumners and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14- 05

- 0885. Jennifer Nicole Sellitti, Public Defender, attorney for the appellant (David J. Reich, Designated Counsel, on the briefs ). Esther Suarez, Hudson County Prosecutor, attorney f or the respondent (Meagan E. Free, Assistant Prosecuto r , on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3188

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This matter returns to us after a remand to the post-conviction relief (PCR) judge to conduct an evidentiary hearing. The hearing wa s to address why trial counsel did not, as t o shooting A.M., 1 : (1) argue in summation that defendant Tari D. Turpin was not reckless; and (2) request a jury causation charge. Following the hearing, the judge denied defendant r elief

. For the reasons set forth below, we vacate defendant's conviction as to A.M. and remand for new trial.
I The parties are fully familiar with the facts and procedural history as set forth in our prior opinions on defendant's direct a ppeal and PCR petition , and therefore, only a brief summary is necessary to pro vide context to this opinion

. State v. Turpin, No. A- 1745 -15 (App. Div. June 8, 2017), certif. denied, 231 N.J. 539 (2017) (Turpin I) ; State v. Turpin, No. A- 1236 -18 (July 6, 2020) (Turpin II)

. On August 25, 2013, at about 4:30 a.m., defendant, with his two infant children and the children's mother, were riding a PATH train from New York to Jersey City when they got into an argument with a f emale passenger, D.D.

1 We use initials to identify the victims to protec t their privacy.3 A- 3188

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Defendant pulled out a gun from his pocket, and the n returned it to his pocket. After defendant pull ed the gun out of his pocket again, D.D.'s friend, A. M, intervened. D.D. testified that before she and her brother could get off the train,
A.M. "co mes out of nowhere" and "swings at [] defendant." According to A.M., he put his left hand over defendant's pocket contai ning the gun, and his right hand on defendant's wrist to keep defendant from pu lling out the gun. Defendant fired the gun, shooting off three fingers of A.M.'s left hand and shooting himself in the leg. When the train reached the Jersey City s tation, defendant exited, still holding the gun. He then paused, turned, and fired two shots at D.D ., hitting her once in the leg and shattering her ankle. Defendan t fled, discarding the gun, which was later recovered by the police. Defendant was arrested a few blocks from the train station. A jury found defendant guilty of two counts of seco nd-degree aggravated assault

–– against D.D. and A.M. , creating a risk of injury, and several weapons offenses. He was sentenced to an aggregate term of thirty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, consistin g of an extended prison term of twenty years for shooting D.D., with a consecutive ten-year term for shooting A.M. We affirmed defendant's conviction and senten ce. Turpin I , slip op. at. 3.4 A- 3188

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Defendant next sought PCR relief, raising numerous cla ims of ineffective assistance of counsel. The PCR judge dismissed the petition, and defendant appealed. We affirmed in part and reversed in part , remanding for an evidentiary hearing with respect to defendant's argument that t rial counsel was ineffective
in defend ing against the charge of aggravated assault upon A.M

. Turpin II , slip
op . at 4. We reasoned: 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 fo r carrying a loaded gun onto a public train, the jury 's consideration of A.M.'s conduct may have resulted i n 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 requeste d 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 no t request a jury charge regarding causation, defendan t 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 char ge was not requested. If at the hearing, the PCR judg e determines defendant satisfies his claim that couns el's performance fell below professional norms, the judg e5 A- 3188

- 21 should determine the probability of whether the jur y's verdict on aggravated assault against A.M. might ha ve been different. [Id. slip op. at 22 .] In the ensuing evidentiary hearing, 2 trial counsel testified that he consider ed whether to make an argument against recklessness

. He stated:

I made a deliberate decision not to address the recklessness. It was a strategic decision. I did that because quite frankly, the evidence that was presen ted at trial of recklessness was overwhelming from the issue of [defendant] bringing a loaded firearm onto a crowded PATH train to him pulling it out with respe ct to [D.D.] to him, again, attempting to pull the gun out with regard to [A.M.]. I made, again, a strategic decision not to argue that because I felt that evid ence was so overwhelming that[,] if I looked the jury in the face and said that [defendant] was not reckless[,] I would lose all credibility with them. So [,] therefore, I focused on the fact that [defenda nt] did not knowingly or purposefully shoot [A.M.]
As for a causation charge, trial counsel stated : I did . . . not ask for a causation charge because I felt the facts that were in the record did not warrant a causation charge. And I say that because the testimo ny as I recollect with regard to the shooting of [A.M. ] was

2 When a dispute arose regarding the PCR court's ruli ngs limit ing crossexamination of trial counsel, PCR counsel was grant ed a stay pending a motion to our court for le ave to appeal. We denied leave to appeal, as did our Supreme Court. See generally State v. Turpin , 249 N.J. 450 (2022).6 A- 3188

- 21 that the incident occurred that [defendant] had pul led out the gun and threatened [D.D.] with it. He then put the gun back, or holstered the gun . . . or put the gun back, concealed the weapon. [A.M.] saw that incide nt, became upset, some time lapsed, and [A.M.] then got into [defendant's] face. [Defendant ] tried to pull out the weapon, [A.M.] put his left hand, which was his dominant hand if I recall, on the outside of [defen dant's] pocket and put his right hand on his wrist. Those facts . . . and then in the struggle the gun went off. A nd those facts, to me, didn' t lead or didn’t create the factual record needed to say that [A.M.] was the supersedin g cause of the discharge. I say that because there w as not testimony in the record that [A.M.] had his hand on the trigger, there was no testimony in the record that [A.M.] had his hand in his pocket, so I didn’t believe tha t the facts warranted. Also, that decision was reaffirme d by the fact that [defendant] chose not to testify. So based on the testimony of [A.M] and the failure of [defen dant] to testify I did not ask for that charge because .

. . I didn’t think the facts would lead to a superseding causation charge. Trial counsel acknowledged on cross-examination he had argued in his summation to the jury that A.M., not defendant, was the aggressor, and that A.M. started the fight, grabbed defendant's pocket, and the g un went off. There is no indication in the hearing record that counsel ever discussed this trial strategy with defendant or obtained his approval to offer no defense to recklessness. The PCR judge issued an order and written decision denying relie f. The judge accepted "[t]rial counsel's decision to not addres s recklessness in summation . . . [ as ] a strategically sound decision based on the facts presented7 A- 3188

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at trial. " The judge also rejected the claim that trial counsel's failu re to request a causation charge was ineffective assistance. As for trial counsel's summation, the PCR judge reasoned:

Here, there is no question that [defendant's] reckl ess conduct was the cause of A.M.'s serious bodily inju ry, thus satisfying the statutory requirements for reck less aggravated assault. [Defendant] submits, "[r]eason ably competent counsel would have argued . . . that even if [defendant's] conduct was initially reckless . . . [,] A.M.'s injury was caused by his superseding event t hat took place when he approached [defendant], hit him and grabbed his pocket." Contrary to [defendant 's ] recounting of the events, however, the Appellate Division asseverated in their factual findings, "[defendant] began to pull the gun back out of his pocket, and . . . A.M. [] intervened." [3] The [Appellate] Division continued, "A.M.[] [then] . . . put his left hand over the pocket containing the gun[] and put his ri ght hand on [defendant's] wrist in an effort to keep hi m from pulling out the gun. [Defendant] fired the gu n, shooting off three fingers of A.M. 's left hand but also wounding himself in the leg ."

. . . . Further, [defendant's] assertion that "A.M.'s injur y was caused by his superseding event” is without merit. When [defendant] brandished a loaded handgun during a verbal altercation with another on an occupied tr ain car, the result risked and the actual result, regardles s of A.M.'s actions, are one in the same

– serious bodily injury to another. There was nothing extraordinary or

3 As noted later, defendant disputes that the record uneq uivocally establishes he pulled out his gun a second time.8 A- 3188

- 21 abnormal about A.M.'s effort to keep [defendant] fr om pulling out his weapon. Rather, attempting to protect yourself or others from the use of a deadly weapon, here a handgun, is "a normal and reasonably foreseeable result" of [defendant's] initial conduct. [See Sta te v. Pelham, 176 N.J. 448, 465 (2003).] [ (A ll alterations in original but "defendant('s)") ]. Regarding the causation charge, the PCR judge determined: [Defendant] fails to overcome the strong presumptio n that trial counsel rendered adequate assistance bec ause he has not shown that trial counsel's decision to f orego requesting a causation charge was unreasonable or t hat he suffered prejudice as a result. Specifically, i t was not unreasonable for trial counsel to forego reques ting a causation charge because, after reviewing the facts of this case, [defendant's] conduct was the but-for cause of the injury to A.M., and A.M.'s conduct was not a n intervening cause. Accordingly, [ de fendant] fails to show that trial counsel's failure to request a caus ation charge constitutes ineffective assistance of counse l. Defendant appeals, arguing:
POINT ONE
THE PCR COURT SHOULD HAVE FOUND TURPIN'S DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO ADAPT HIS SUMMATION TO A JURY INSTRUCTION HE KNEW WAS COMING AND IN FAILING TO REQUEST A SEPARATE JURY CHARGE CONCERNING CAUSATION WHICH WOULD HAVE HELPED THE JURY CONSIDER THE DEFENSE'S VERSION OF EVENTS.
A. Introduction.9 A- 3188

- 21 B. Ignoring A Forthcoming Jury Instruction Does Not Constitute The Reasonable Exercise Of Professional Judgment.
C. Defense Counsel Was Not Compelled To Concede Recklessness.
D. In View Of The Evidence Cited In His Own Summation , Defense Counsel Had No Valid Reason Not To Argue Causation Or Request A Causation Charge.
E. Defense Counsel's Contention At The Evidentiary Hearing That A Causation Charge Was Unwarranted Was Based On A Factual Version Which Favored The State And Differed Dramatically From The Factual Version He Had Presented Previously During His Summation.
F. The Version Of Events Cited By The PCR Court In A Portion Of Its Decision Differed From The Final Version Discussed In This Court's Decision Directing A Remand To The PCR Court.
G. The PCR Court’s Suggestion That Turpin Was Not Entitled To A Jury Charge Concerning Causation Was Contrary To Settled Law; The PCR Court Erred In Concluding That The Holding In State v

. Pelham Extends To This Case.
H. Turpin Has Established That His Counsel' s Assistance Was Ineffective.

II10 A- 3188

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When petitioning for PCR, the defendant must establ ish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); S tate v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that " would provide the court with an adequate basis on which t o rest its decision." State v. Mitchell, 126 N.J. 56 5, 579 (1992). To establish a prima facie claim of ineffective as sistance of counsel, the defendant is obligated to show not only the way cou nsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Stat e v. Fritz, 105 N.J. 42, 58

- 60 (1987). Under the first prong of this test, the de fendant must demonstrate that "counsel made errors so serious that counsel w as not functioning as the 'counsel' guaranteed the defendant by the Sixth Ame ndment." Strickland, 466
U.S. at 687

. Under the second prong, the defendant must show "th at counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability that, b ut for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.11 A- 3188

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"Mere dissatisfaction with a 'counsel's exercise of judgment' is insufficient to warrant overturning a conviction." State v. Nas h, 212 N.J. 518, 542 (2013) (quoting State v. Echols, 199 N.J. 344, 358 (2009)) . Rather, "a [petitioner] must establish that trial counsel's actions did not equa te to 'sound trial strategy.'" State v. Castagna , 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U .S. at 689). Where, as here, the PCR judge conducts an evidenti ary hearing, we must uphold the judge's factual findings, "'so long as t hose findings are supported by sufficient credible evidence in the record.'" Stat e v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted)). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [th e judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders , 192 N.J. at 244). However, a "PCR [judge's] interpretation of the law" is afforded no deference and is "reviewed de novo." Nash, 212 N.J. at 540-41 (citing State v. H arris, 181 N.J. 391, 415-16 (2004), cert if . denied, 545 U.S. 1145 (2005)). Applying these standards, we are constrained to reverse and remand for a new trial regarding defendant's conviction for aggr avated assault of A.M. We12 A- 3188

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ordered an evidentiary hearing be held because "the jury's consideration of A.M.'s conduct may have resulted in a different out come on the conviction for aggravated assault of A.M. had counsel addressed de fendant's reckless state of mind or lack thereof and requested a causation char ge." Turpin II , slip op. at 22. We disagree with the PCR judge's determination that trial counsel's strategic decision to forgo arguing defendant was not reckles s and not to request a jury causation charge was reasonable. We conclude that, had trial counsel's strategy not been employed, there was a reasonable probabili ty the jury c ould have found defendant not guilty of aggravated assault against A.M. At trial, there were tw o different versions of the incident. Th e State contended defendant pull ed the gun out of his pocket a second time before A.M. grabbed his hand causing a struggle resulting in A.M. being sh ot in the hand. Trial counsel summed up arguing that before A.M. wa s shot in the hand , A.M. injected himself into the dispute D.D. had with def endant and defendant' s mother's children , tried to hit defendant, and attempted to take contr ol of the gun in defendant's pocket. Whether defendant's reckles sness caused A.M. to be shot was the prime issue for the jury to determine wheth er defendant was guilty of second- de gree aggravated assault.13 A- 3188

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To find a person guilty of second-degree aggravated assault, the jury must determine "if the person . . . [a]ttempts to cause seri ous bodily injury to another, or causes injury purposely or knowingly or under ci rcumstances manifesting extreme indifference to the value of human life rec klessly causes such injury[.]" N.J.S.A. 2C:12-1(b)(1) (emphasis added). Each menta l state individually satisfies the statute for second-degree culpability

. Where a jury must determine if a defendant acted r eckless ly , "the State must prove at least one of two forms of causation: (1) 'the actual result must be within the risk of which the actor is aware'; or (2 ) 'if not, the actual result must involve the same kind of injury or harm as the prob able result.' " State v. Parkhill , 461 N.J. Super. 494, 501 (App. Div. 2019) (citing N. J.S.A. 2C:2-3(c)); see also State v. Buckley, 216 N.J. 249 , 263 ( 2013)

. We agree with defendant's arguments regarding the p roofs the State was required to show recklessness

. He contends, c iting Buckley, 216 N.J. at 264, that under the first prong , " the State was required to prove to the jury beyond a reasonable doubt in this case that [defendant] was aware that showing his gun had created a risk of serious injury." And citing State v. Eldridge, 388 N.J. Super. 485, 500 (App. Div. 2006), he contends that under the second prong the State had to prove "that A.M.'s injury was not ' too accidental in its occurrence14 A- 3188

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or too dependent on [A.M.'s] volitional act to have a just bearing on [defendant's] liability.'" Although the indictment charged only purposeful or knowing aggravated assault upon A.M., the trial court denied defendant ' s Reyes 4 motion to dismiss the aggravated assault charge for lack of proof of intent and also granted the State’s request for a charge of recklessness. Aware that recklessness was now an alternative state of mind for the jury’s consideration, defense counsel neither argued defendant's lack of recklessness in summatio n nor requested a causation charge. Significantly, there was no testimony that defendant agreed with this strategy as trial counsel clearly stated on the rec ord that he made the strategic decision not to argue recklessness on summation or to request a ca usation charge. We disagree with the PCR judge that this was sound strategy. If the jury declined to find defendant acted purposefully or kn owingly, defendant faced the same second-degree culpability if the jury neverthe less found his conduct reckless. Trial counsel's strategy that he did not want to lose credibility with the jury by arguing defendant was not reckless in shoot ing A.M. wa s un reasonable. As defendant argues before us, considering he "perc eived [a] threat of a drunken

4 State v. Reyes, 50 N.J. 454 (1967).15 A- 3188

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crowd screaming at him and pushing him against the wall of the train while his two young children and their mother sat nearby[,]" trial counsel could have
reasonabl y argued to the jury that he was not reckless. Trial counsel could have "characterized [defendant's] action [of showing the gun] as a spontaneous defensive gesture, as distinguished from a reckless action taken in conscious disregard of a known risk " and "emphasized that [defendant] had put the gun back in his pocket before A.M. assaulted [defendant], grab bed the pocket where the gun was located, and the gun went off. " Furthermore, trial counsel could have asserted defendant was not reckless because he could not have expected A.M.'s aggressiveness in re igniting a dispute that had de -escalat ed

. We fully appreciate defendant's conduct in displayi ng a loaded gun on a crowded train during a heated dispute with drunken passengers is dangerous

. Yet, the fact remains that the only reasonable defe nse was for trial counsel to stress that defendant did so to de -escalate the situation, not to shoot anyone, and A.M. escalated the situation, which led to him bein g shot. A s we stressed in our
remand decision , not argu ing against recklessness effectively amounted to no defense by tacitly admitting to reckless aggravated assault. Trial counsel's strategic explanation is unavailing and particularl y concerning as the record presents no evidence that counsel discussed this approach with defendant. At16 A- 3188

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minimum, before unilaterally adopting a trial strat egy not to refute the State’s equally serious alternative allegation that defenda nt acted recklessly, counsel should have consulted defendant, whose sole provinc e it is to decide when and whether to assert his innocence. See McCoy v. Louisiana, 584 U.S. 414, 422 (2018) (recognizing counsel may not strategically c oncede guilt when a client's trial objective is to profess innocence). Turning to trial counsel's decision not to request a causation charge , this was also ineffective assistance. Our high Court he ld, "[w]hen . . . divergent factual versions give rise to different theories of causation, the trial court should provide the jury with appropriate instructions, dep ending on which version it chooses to accept." State v. Martin , 119 N.J. 2, 16

- 17 (1990). In Parkhill , we held the trial court erred in not giving a causatio n charge

. 461 N.J. Super. at 499. We ordered a new trial , "[b]ased on the victim's actions and defendant's contention that the victim caused the accident, the court should have delivered the model jury charge on causation, consistent with N.J.S.A. 2C:2-3(c). " Id. at 497

. Thus, where causation is at issue and a separate c ausation charge is not given, there is a "clear capacity to produce an unj ust result. " Martin, 119 N.J. at 34; see also Parkhill, 461 N.J. Super. at 499; E ldridge, 388 N.J. Super. at 500.17 A- 3188

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The causation charge under N.J.S.A.2C:2-3 regarding reckless conduct provides: Causation has a special meaning under the law. To

establish causation, the State must prove two eleme nts, 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.

. . . . Second, [for reckless conduct] that the actual resu lt must have been within the risk of which the defenda nt was aware. If not, it must involve the same kind o f 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 jus t bearing on the defendant's liability or on the grav ity of his/her offense. [alteration in original] [Model Jury Charges (Criminal), "Causation (N.J.S.A

. 2C:2-3)" (approved June 10, 2013).] The facts here supported a causation charge because the State had to prove defendant was responsible for causing A.M. to be sho t. Defendant was not required to prove that A.M. pulled the trigger or e ven how A.M. was shot

. The State was required to prove beyond a reasonable dou bt that defendant caused A.M.'s injury. Because the re were two different versions of the shooting ,18 A- 3188

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including one indicating that A.M. was the instigat or , a causation charge was warranted. In conclusion, we express no view on the outcome at a new trial. Vacating defendant's conviction and sentence for second-degr ee aggravated assault as to A.M. is not a suggestion that the jury could not ha ve convicted defendant of th e offense. Rather, we conclude there wa s a reasonable probability based on the facts presented that trial counsel was ineffective for failing to argue defendant was not reckless in shooting A.M., given it was an independent alternative basis for the offense, and for failing to request a causa tion jury charge given A.M.'s conduct. Reversed as to the second-degree aggravated assault of A.M. and remanded for retrial. We do not retain jurisdictio n.