SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Ambrose Harris (A-95-06)

Argued October 23, 2007 -- Decided December 4, 2007

PER CURIAM

Ambrose Harris was convicted of capital murder and sentenced to death. On July 30, 1998, the Supreme Court affirmed his conviction and sentence by a 4-3 vote. In a separate opinion filed August 2, 2000, a majority of the Court held that Harris's sentence was not disproportionate.

Harris filed a petition for post-conviction relief on February 27, 2001. The trial court denied that petition on October 30, 2002, and the Supreme Court affirmed that decision on October 19, 2004. On July 19, 2006, Harris filed a second post-conviction relief petition with the trial court in which he contended that his capital sentence should be vacated based on the Court's decision in State v. DiFrisco, 187 N.J. 156 (2006). The State filed a motion to have the Supreme Court directly certify the matter while it was pending in the Law Division. Counsel for Harris joined in the request, which was granted on February 6, 2007.

In State v. DiFrisco, the Supreme Court vacated a capital sentence based on a unique set of votes by individual Justices. Of the members of the Court who heard DiFrisco's direct appeal, three voted to reverse the capital sentence. In the then separate proportionality review proceeding, a fourth member of the Court who had sat on the direct appeal found that DiFrisco's sentence was disproportionate. In deciding DiFrisco's petition for post-conviction relief, a majority of the Court concluded that had his direct appeal and proportionality review been conducted as one proceeding (as is now done in all capital cases), a majority of the members of the Court who sat on the direct appeal would have cast votes to overturn DiFrisco's capital sentence.

Ambrose Harris contends that because a total of four Justices, over time, have voted to overturn his death penalty sentence, the Court should apply DiFrisco to him. The State argues that Harris's position requires an impermissible aggregation of votes by a former Justice and the Justice who succeeded him.

HELD: Defendant Ambrose Harris is not entitled to any relief under State v. DiFrisco. His petition for post-conviction relief is denied. To the extent that Harris seeks an extension of DiFrisco, the application also is denied.

1. The holding in DiFrisco was based on a review of the votes of the same Justices who sat on both the direct appeal and the proportionality review proceeding. In the within matter, Harris could reach a "fourth" vote only by counting Justice Handler's vote twice -- once as a vote to reverse on the direct appeal and once as his successor's (Justice Long) vote to reverse on the proportionality review proceeding. DiFrisco does not compel that result. (pp. 3-4)

2. To the extent the State argues the Court should re-examine its holding in DiFrisco, the Court declines to reach an argument that is unnecessary for the disposition of the application before it. (p. 4)

The petition for post-conviction relief is DENIED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in the Court's opinion.

SUPREME COURT OF NEW JERSEY

A- 95 September Term 2006

STATE OF NEW JERSEY,

Plaintiff,

v.

AMBROSE HARRIS,

Defendant.

Argued October 23, 2007 – Decided December 4, 2007

On certification to the Superior Court, Law Division, Mercer County.

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for defendant (Yvonne Smith Segars, Public Defender, attorney).

Daniel I. Bornstein, Deputy Attorney General, argued the cause for plaintiff (Anne Milgram, Attorney General of New Jersey, attorney).

PER CURIAM

In State v. DiFrisco (DiFrisco V), 187 N.J. 156, 179 (2006), a majority of this Court vacated the capital sentence of defendant Anthony DiFrisco (DiFrisco) based on its finding of a unique set of votes by individual Justices. Of the members of the Court who heard DiFrisco’s direct appeal, three voted to reverse the capital sentence (Justices Clifford, Handler, and Stein) and, thereafter, in a bifurcated review of DiFrisco’s application for proportionality review of the sentence, a fourth member of the original direct-appeal Court (Justice O’Hern) found that the capital sentence was disproportionate. Id. at 163. Thus, a total of four members, who reviewed both DiFrisco’s direct appeal and his proportionality review, voted to overturn his capital sentence. See id. at 160. The DiFrisco V Court reasoned that had the direct appeal and proportionality review been conducted together, as now is our practice, a majority of the members of the original direct-appeal Court would have cast votes to overturn the capital penalty and impose a life sentence. Id. at 178-80. On those specific and likely non-recurring set of voting facts, the DiFrisco V Court therefore determined that DiFrisco’s capital sentence must be vacated. Ibid.

Defendant Ambrose Harris (Harris) now claims that the holding in DiFrisco V requires that his death sentence be vacated because a total of four Justices, over time, have voted to overturn his death penalty.1 The State refutes that claim, pointing out that Harris can assert a “total” of four votes to overturn his capital sentence only by impermissibly aggregating the votes of Justices who have replaced former Justices. That, the State contends, is not what occurred in DiFrisco’s proceedings.

We directly certified Harris’s pending motion for relief from the trial court, State v. Harris, 189 N.J. 647 (2007), and now deny his application. The unique set of votes that were cast by the individual members of this Court who reviewed, in separate proceedings, DiFrisco’s sentence is not replicated in Harris’s proceedings.

As highlighted in our earlier recitation of the individual Justices’ votes in DiFrisco’s proceedings, the holding in DiFrisco V, supra, was based on the votes of four of the same Justices who sat on both the direct appeal and on the capital penalty’s proportionality review. 187 N.J. at 178-79. When one examines the history of Harris’s direct appeal and his proportionality review, it is apparent that the original members of the Court who heard his direct appeal never provided four votes to overturn his sentence, even if the votes taken in his proportionality review are considered. One can only find a “fourth” vote to overturn Harris’s capital sentence by, in effect, counting Justice Handler’s vote twice, which would be the case if we counted the vote cast by his successor (Justice Long) in the proportionality review. Simply put, DiFrisco V does not compel the relief that Harris seeks.

In conclusion, our holding in DiFrisco V was based on a tally of votes cast by the original members of DiFrisco’s sentence-reviewing Court, albeit during bifurcated proceedings. Harris cannot match those unique circumstances. He is not entitled to relief under DiFrisco V. To the extent that Harris seeks an extension of DiFrisco V, his request is denied. To the extent that the State argues that we should re-examine the DiFrisco V holding, we decline to reach an argument that is unnecessary for disposition of the application before us. See, e.g., State v. Delgado, 188 N.J. 48, 64 n.10 (2006) (declining to address defendant’s due process argument that was not necessary to appeal’s disposition).

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in the Court’s opinion.

NO. A- 95 SEPTEMBER TERM 2006

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff,

v.

AMBROSE HARRIS,

Defendant.

DECIDED December 4, 2007

Chief Justice Rabner PRESIDING

OPINION BY Per Curiam

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST

DENY

CHIEF JUSTICE RABNER

X

JUSTICE LONG

X

JUSTICE LaVECCHIA

X

JUSTICE ALBIN

X

JUSTICE WALLACE

X

JUSTICE RIVERA-SOTO

X

JUSTICE HOENS

X

TOTALS

7

1 Of the members of the Court who heard Harris’s direct appeal, three voted to vacate the sentence (Justices Handler, Stein, and Coleman). State v. Harris (Harris I), 156 N.J. 122, 253 (1997), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). Thereafter, in the proportionality review, only Justice Long, who did not sit on Harris’s direct appeal, voted to vacate Harris’s capital sentence. State v. Harris (Harris II), 165 N.J. 303, 385 (2000). Justice Long had succeeded to Justice Handler’s position on the Court after Harris I was decided.