STATE OF NEW JERSEY v. TIVON NEALS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0207-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIVON NEALS, a/k/a TIVON E. NEALS,

Defendant-Appellant.

___________________________________

April 10, 2012

 

Submitted December 14, 2011 - Decided

 

Before Judges Cuff and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 03-09-01213 and 04-09-1061.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

 

PER CURIAM

Defendant Tivon Neals appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

Following a trial on two indictments, Neals was convicted of first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a)(1); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); fourth-degree retaliation against a witness or informant, contrary to N.J.S.A. 2C:28-5(b); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a). After merging the possession of a weapon for an unlawful purpose charge into the murder charge, the trial judge sentenced Neals to incarceration for fifty years, subject to an eighty-five percent period of parole ineligibility. On the unlawful possession of a weapon conviction, the judge imposed a concurrent four-year term. The judge also merged the terroristic threat conviction into the retaliation conviction, and imposed a consecutive prison term of four years with a one-year period of parole ineligibility.

Neals appealed his convictions and we affirmed. The Supreme Court denied certification. State v. Neals, No. A-5053-04 (App. Div. June 25, 2007), certif. denied, 196 N.J. 86 (2008).

In December 2008, Neals filed his PCR petition, arguing primarily that he received ineffective assistance of trial counsel. Neals' assigned counsel supplemented his pro se petition, arguing, in part, that Neals' appellate counsel was also ineffective.

The trial judge heard argument on the petition on February 2, 2010. In a written opinion filed the same day, the judge dismissed the petition, concluding that Neals failed to establish that he received constitutionally ineffective assistance from either trial or appellate counsel. The judge also concluded that some of Neals' arguments were barred under Rule 3:22-5. This appeal followed.

B.

The following facts, taken from our opinion on the direct appeal, were adduced at trial:

On August 2, 2003, defendant Tivon Neals, M.L., and Thomas T. were traveling to their friend s house in New Jersey to spend the weekend together. They drove in Thomas T.'s mother's red, two-door Mitsubishi Eclipse. A nine millimeter gun that belonged to Thomas T.'s mother was in the car. Thomas T. brought the unloaded weapon to show it to his friends and then placed it on the floor in the backseat of the car.

 

Defendant and M.L. lived in the same apartment building in Brooklyn, New York, and shared a group of friends, all of whom referred to defendant as "T." M.L. had been to New Jersey on prior occasions to visit H.C., nicknamed "H.," and Thomas T., a close, long-time family friend who lived in Cinnaminson. M.L. was "good friends" with defendant, but this was their first visit together to New Jersey. Thomas T. did not know defendant as well, although he met him previously at M.L.'s Brooklyn apartment.

 

The trio were staying in Camden for the weekend with H.C.'s grandfather. During the evening of August 4, 2003, defendant and H.C. got into an argument at the home of H.C.'s relatives. M.L. decided that he and defendant should return to Brooklyn. Despite the late hour, Thomas T. agreed to drive them to the train station in Trenton. At some point before leaving to take them to the train station, Thomas T. placed his mother s nine millimeter gun into the trunk because he did not want to have a gun in the car while driving such a noticeable car at a late hour. He explained that he gave the unloaded gun to M.L. to take with him to New York and that the gun was already in M.L.'s bag in the trunk.

 

At approximately 10 or 11 p.m., the young men were on their way to the station. Defendant occupied the passenger seat beside Thomas T. and M.L. sat in the backseat behind Thomas T. On the way to the train station, M.L. and defendant teased Thomas T. about "Jersey's country," so Thomas T. drove them to Burlington City to prove that New Jersey had a "hood." Thomas T. was unfamiliar with the Burlington City area and got lost.

 

Meanwhile, in Burlington City, James Nesbitt, a thirty-year-old resident, sat in front of his house, which was located at the corner of York Street and Clarkson Street. At approximately 12:30 a.m., a heavyset 5'7" tall, African-American male named Anthony McNair tried to sell Nesbitt pornographic DVDs, which he carried in his hands, but Nesbitt declined to purchase them. The man walked away towards Clarkson Street while Nesbitt continued speaking with a friend.

Moments later, Thomas T. reached the intersection of York and Clarkson Streets and began making a right-hand turn. Thomas T. noticed a heavyset black man motioning to him. The man was the same person who had tried to sell the pornographic DVDs to Nesbitt. Thomas T. stopped the car. M.L., who had been lying down in the backseat, sat up thinking they were at the Trenton train station. He did not recognize the area and noticed that a black, middle-aged man was standing behind the car, motioning towards them. Thomas T. put the car in reverse towards the black male and stopped the car in front of him.

 

McNair approached the driver s side window and either leaned forward towards the window or actually leaned into the car. McNair asked Thomas T. "what do you need?" to which Thomas T. responded "what's you mean?" Thomas T. believed that McNair was trying to sell him something, although he did not see anything in his hands.

McNair reached toward his side with his right hand as he started to pull up his shirt. Thomas T. testified that he was not alarmed by McNair's action and did not see anything at the man's waistband or underneath his shirt. Although the dynamics of the car and Thomas T.'s head slightly obstructed M.L.'s view from the backseat, he was able to see McNair and saw him motion towards his navel. Like Thomas T., M.L. was not alarmed by McNair's movement and noticed that Thomas T. did not appear anxious.

Suddenly, M.L. heard a "bang" like a gunshot. At the same time, Thomas T. saw a flash in front of his face as he heard the sound of a loud "big pop." Both M.L. and Thomas T. noticed that McNair was no longer standing at the car window. M.L. thought McNair fired into the car and hid down. Then he smelled gun powder and felt a ringing sensation in his ears. Thomas T. was in shock and did not move. M.L. thought Thomas T. had been shot because he remained motionless.

 

M.L. saw defendant nudge Thomas T., who started the vehicle and sped off. He drove into Pennsylvania and returned to New Jersey. During this ride, M.L. saw Thomas T. retrieve a bullet shell from somewhere in the car and hand it to defendant. M.L. does not know what defendant did with the bullet shell, but believes he threw it out the window. Afterwards, M.L. laid down, traumatized, and listened to the music in the car. He does not recall the particulars of any conversation with Thomas T. or defendant. Thomas T. recalled that M.L. and defendant told him McNair had a gun.

 

Thomas T. drove M.L. and defendant to the Hamilton station, but no trains were running. He then drove them to the Trenton station where they took a train to Brooklyn.

 

. . . .

 

During [a subsequently recorded] conversation [with defendant], Thomas T. mentioned that a shooting involving a red Eclipse was being broadcasted in the news. He stated, "I don't know how that shit happened, yo" to which defendant responded, "Nigger got the fever. (Laughing) That shit ain't no mother fucking play toy. You understand? . . . When it bangs on a nigger, it takes niggers out." The State contends defendant then made the following statement:

 

Word to mothers, so nahmean, I, nahmean? I didn't wanna do it but, at the same time, it's better him than us. Nahmean? It's better him than you. 'Cause that nigger had an ax. He was gonna give it to you. And I know he got, you know, got laid with something on his waist so, unless niggers took it off him, that's how they found him.

 

The State alleges the following colloquy occurred between Thomas T. and defendant:

 

[THOMAS T.]: I didn't even see that shit but son, yo, this shit crazy. I didn't even see that shit pull out, yo.

 

VOICE: Yeah, son. I had it in my lap, son.

 

. . . .

 

VOICE: Fucking niggers nahmean? Niggers, I told niggers, yo, don't, nahmean? I ain't sleeping on niggers or whatever. Soon as, son, see, you see the black on that hammer, nahmean, nigger hold some for a second and that's all it took, man. He out the game now, so, fuck him. Dead men don't talk. You know? Nahmean?

 

. . . .

 

VOICE: No. No. Fuck that. What are, what're they gonna say? They need, son, the shell is out the game, the hammer's out the game.

 

[THOMAS T.]: Yeah. What'd you do with, what'd you do with that shit?

 

VOICE.: Shit, I threw that shell in the fucking woods, "B". That shit is out.

 

[THOMAS T.]: Oh, you threw it, you threw it in the City?

 

VOICE: Son, after we, no, we was in fucking, uh, Philly when that shit happened. Remember when you got on the mother-fucking causeway and just went through?

 

[THOMAS T.]: Oh, that bridge?

 

VOICE: Yeah. After that, son, this is like one. Nahmean? We went to Philly already. Nahmean? So fuck it. And then we just came back. . . . It was three niggers in the fucking car.

 

. . . .

 

[THOMAS T.]: . . . you still got the broom handle, son? Or you ditched that shit?

 

VOICE: Son, fuck, nigger, I didn't boost no mother fucking broom handle. Nigger, I got that shit. Them shit's too hard to come by to fuck around. . . .

 

. . . .

 

VOICE: Nobody. I didn't see nobody. It was just dark. Fucking, what time was it? Fucking twelve/one o'clock in the morning almost. Nahmean?

 

. . . .

 

VOICE: Yo, but also just, yo, just also just wipe down your little car and shit. Try to get, nahmean, make sure there ain't no mother fucking bullshit residue or nothing in there from no mother fucking, nahmean, the gun powder type shit. Just wipe it down. Put some nice little mother fucking turpentine, whatever you gonna do with it, and that shit.

 

. . . .

 

[THOMAS T.]: This nigger died, yo. That nigger died, though, son.

 

VOICE: Well, he was weak then. Man, that was the only one. Nahmean?

 

[THOMAS T.]: He didn't have to die.

 

. . . .

 

[THOMAS T.]: Yo, you shot that nigger in the face, though, son.

 

VOICE: Did I?

 

[THOMAS T.]: Yeah.

 

. . . .

 

VOICE: You want me, you want me to cry for him, man? What if that've been you? 'Cause that's exactly what he would've did to you. He'd've did the same fucking thing to you. Sacrifice for it.

 

. . . .

 

VOICE: . . . Niggers did what they had to do to stay alive. You, you still breathing. I'm still breathing. M[.L.]'s still breathing. . . .

 

[State v. Neals, supra, slip op. at 3-15 (footnotes omitted).]

 

II.

Neals raises the following issues on appeal through counsel:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S PRESENTATION OF ALTERNATIVE BUT INCONSISTENT DEFENSES INSTEAD OF FOCUSING UPON THE ONLY VIABLE DEFENSE INVOLVING SELF-DEFENSE AND DEFENSE OF OTHERS, THEREBY EFFECTIVELY DESTROYING ANY CREDIBILITY THE DEFENSE HAD WITH THE JURY AND PRECLUDING ANY POSSIBILITY OF A FAVORABLE VERDICT FROM THE JURY.

 

C. SINCE THE ONLY VIABLE DEFENSE CENTERED AROUND THE CONTENTION THAT DEFENDANT ACTED IN SELF-DEFENSE, TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT CHARGE THE JURY REGARDING DEFENSE OF OTHERS AS WELL.

 

He raises the following additional issues in his supplemental pro se brief:

POINT I: THE PCR COURT ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW IN DENYING APPELLANT'S CLAIM THAT HE WAS DENIED THE RIGHT TO SELF REPRESENTATION WHEN THE TRIAL COURT FAILED TO CONDUCT A FARETTA/REDDISH/CRISAFI INQUIRY INTO THE DEFENDANT'S REQUEST TO WAIVE TRIAL COUNSEL.

 

POINT II: THE PCR COURT ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW IN DENYING THE DEFENDANT CLAIM THAT HE WAS GIVEN INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL BEING A WITNESS TO MATERIAL FACTS IN DISPUTE.

 

POINT III: THE DEFENDANT IS ENTITLED TO A NEW FIRST POST CONVICTION RELIEF HEARING ON THE GROUNDS THAT PCR COUNSEL FAILED TO RAISE AND ARGUE THE CLAIMS IN THE DEFENDANT'S VERIFIED PETITION FOR POST CONVICTION RELIEF CONTRARY TO THE RULES SET FORTH IN STATE V. WEBSTER.

 

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

 

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

 

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

 

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

B.

Neals' primary argument on appeal is that the trial judge erred in denying PCR because his trial counsel was ineffective by failing to present a meaningful defense. Neals contends that he was prejudiced by defense counsel's decision to present two inconsistent theories at trial: (1) that the State did not prove that Neals was the shooter; and (2) that, even if the jury concluded that he was the shooter, Neals acted in self-defense. Neals also argues that defense counsel was ineffective because he failed to request a charge on defense of others, N.J.S.A. 2C:3-5, in addition to self-defense.

The implementation of a failed trial strategy does not generally satisfy the first prong of the Strickland test. Because of the strong presumption that counsel was acting effectively, an attorney's strategy at trial is not generally second-guessed. See State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988).

While there was strong evidence that Neals was the shooter, there was no direct testimony to that effect. Defense counsel argued that one of the other occupants of the car could have been the shooter, attempting to create a reasonable doubt that Neals was the one who shot McNair. He also argued that, if the jury concluded that McNair had a gun, the shooting could have been self-defense on the part of whoever was the shooter. The two theories were not mutually exclusive and, given the strength of the evidence against Neals, not so unreasonable as a matter of strategy as to be constitutionally deficient. We will not second-guess it on the record before us.

Even assuming that the strategy amounted to ineffective representation, satisfying the first Strickland prong, Neals has failed to present a prima facie case that, but for counsel's ineffectiveness, the outcome of the trial would probably have been different. As the Supreme Court held in State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)), it "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Just as there was strong evidence that Neals was the shooter, there was also strong evidence that McNair did not have a weapon, but was merely attempting to sell DVDs to the occupants of the car. Consequently, had the only articulated defense been self defense, as Neals now argues should have been the case, there is no reason to believe the jury would have been persuaded.

With respect to the failure to request a charge on defense of others, we find no prima facie case that the result of the trial would have been different. The jury clearly concluded that Neals was the shooter and rejected the notion of self defense, which was charged by the trial judge. There is no reason to believe that the jury would have concluded that Neals shot McNair to protect his passengers, but not to protect himself.

C.

Neals raises three issues in his pro se supplemental brief. The first two issues relate to his efforts to represent himself with respect the charge that he had threatened a witness in court, as to which he alleged that his defense attorney was a witness and should have disqualified himself. The third relates to issues raised in his pro se PCR petition that he maintains were not pursued by his PCR counsel.

Having reviewed those issues in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The first two issues were not raised on direct appeal, although they could and should have been. See R. 3:22-4(a). They were considered by the trial judge as part of his consideration of the PCR petition and found to be without merit. We agree.

The trial judge correctly concluded that defense counsel's testimony would not have exculpated Neals. More importantly, it would, in all likelihood, have been adverse to Neals. As we recognized in our previous opinion, one witness testified that he heard Neals say to M.L., "wait until you get back up north," and another witness testified that he heard Neals say, "you faggot, when you get up north, you're going to get popped." State v. Neals, supra, slip op. at 29. Because defense counsel heard the word "north," his testimony would have confirmed the claim that Neals used that word in court after M.L.'s testimony. In any event, that issue of disqualification and self-representation could and should have been raised on direct appeal.

In his third point, Neals contends that his PCR counsel breached his obligation to raise issues before the trial court that were mentioned in his pro se PCR petition. He relies on State v. Webster, 187 N.J. 254, 257 (2006), which requires appointed counsel to argue issues that he or she deems to be legitimate arguments and to bring other arguments espoused by the client to the attention of the PCR judge.

Neals first contends that PCR counsel failed to argue that defense counsel was ineffective because he did not "correct perjured testimony" given by Thomas T. In fact, Thomas T.'s credibility was raised in Point VI of counsel's PCR brief, albeit in a slightly different wording. It was rejected by the trial judge. In addition, we found the issue of that witness's credibility to be without merit on direct appeal.

The other issue raised by Neals relates to an alleged Brady1 violation concerning a witness statement. Neals is correct that the issue was not raised in defense counsel's brief, and not otherwise brought to the judge's attention. However, Neals' pro se petition provides no basis for that claim. Our review of the record convinces us that it is without merit.

Because we conclude that Neals failed to present a prima facie case of constitutionally ineffective assistance of counsel on any issue, we affirm the trial judge's dismissal of Neal's PCR petition without an evidentiary hearing.

Affirmed.

1 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).