STATE OF NEW JERSEY v. TIQUAN WHITEHURST

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIQUAN WHITEHURST,

Defendant-Appellant.

__________________________________________

April 25, 2017

Submitted March 7, 2017 Decided

Before Judge Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1973.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tiquan Whitehurst appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Following a jury trial, defendant was convicted of the first-degree murders of Joseph Cox and Charles Jackson, N.J.S.A. 2C:11-3(a)(1) and (2), and related weapons offenses. As we explained in our prior opinion, the evidence at trial revealed first responders to a motor vehicle accident found both victims in the front-seat of a car with mortal gunshot wounds and defendant unconscious in the backseat with a gun, later identified as the murder weapon, either in his hand or nearby. State v. Whitehurst, No. 5035-08 (App. Div. Jan. 6, 2012) (slip op. at 4). In a dying declaration, one victim told an EMT the "guy in the back seat shot me." Id. at 6. Expert forensic testimony opined both victims were shot from behind at close range, and defendant's cellphone records revealed a series of twenty-two calls that day to one of the victim's phones. Ibid. Defendant did not testify or present any witnesses at trial. Ibid.

The judge sentenced defendant to two consecutive life terms, each subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Id. at 2. We affirmed defendant's conviction on appeal, remanding the matter for re-sentencing on the State's cross-appeal. Id. at 17. The Supreme Court denied certification. 210 N.J. 479 (2012).

Defendant filed a pro se petition for post-conviction relief (PCR). After the court appointed PCR counsel, defendant claimed in a supplemental certification that trial counsel provided ineffective assistance (IAC) because he failed to retain an expert witness regarding defendant's documented post-arrest overdose of benzodiazepine. Defendant denied taking the drug at all and claimed the overdose resulted in his "inability to recall the shooting, or the events leading up to it." Defendant asserted trial counsel should have consulted an expert regarding a "diminished capacity" defense, or whether defendant was competent to stand trial as a result of the overdose. He also claimed that trial counsel failed to consult with him privately, particularly regarding defendant's "fundamental right to testify on [his] own behalf," and failed to review discovery with defendant.

Following oral argument, the PCR judge denied defendant's petition without an evidentiary hearing, and this appeal followed. We granted defendant's motion to supplement the record to include his medical records.

Defendant contends he established a prima facie IAC claim because trial counsel failed to consult with him, "induced" defendant not to testify and failed to investigate a diminished capacity defense or defendant's competency to stand trial. In a pro se supplemental brief, defendant argues PCR counsel was ineffective because he failed to bring to the PCR judge's attention the record of calls made to police on the evening of the murders. According to one entry in the "Event Chronology" in the appendix to defendant's pro se brief, a caller claimed "suspects [were] on foot." Defendant contends this record would have provided valuable support for the "third-party guilt" defense asserted at trial.

We have considered these arguments in light of the record and applicable legal standards. We affirm in part and remand the matter for further proceedings consistent with this opinion.

The standards that guide our review are well known. To establish an IAC claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Ibid. (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Id. at 58. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

Our Rules anticipate the need to hold an evidentiary hearing on IAC claims "only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and include "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "[W]e review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Any claim that trial counsel failed to consult adequately with defendant lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Defendant's certification provides only "bald assertions" about counsel's alleged deficiencies in this regard. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Furthermore, as the PCR judge noted, the trial transcript belies any claim that counsel "induced" defendant's election not to testify, or the decision was anything but defendant's knowing and voluntary choice.

We also reject defendant's IAC claim regarding a diminished capacity defense or competency to stand trial. The record demonstrates defendant was taken to the hospital from the crash scene in the early morning hours of December 3, 2006. Hospital records reveal defendant did not have benzodiazepine in his system. He was treated and released but remained in police custody at the county correctional center. The following day, defendant was brought to the hospital in a confused state. He was returned to the correctional center two days later with a diagnosis of benzodiazepine overdose.

We fail to see the relevance of these records to a "diminished capacity" defense, since the diagnosis of a drug overdose was made well after the homicide, and there was no evidence of drugs in defendant's system when he was taken from the scene. Nor do these hospital records alone support a claim that defendant was incompetent to stand trial years later.

We affirm the order under review with respect to the issues actually raised before the PCR judge. We turn, however, to an issue that was not raised during the hearing.

In his pro se brief, defendant alleges that PCR counsel provided ineffective assistance because he failed to bring to the court's attention the "Event Chronology," which seemingly reflects police activity surrounding the homicides and refers to a particular call about "suspects . . . on foot." However, defendant's unsworn brief does not explain when or how he came into possession of this document, or when or how he brought it to PCR counsel's attention. The brief only states PCR counsel was made aware of the report "in due time to present" it to the PCR judge.

"PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). The appropriate remedy for PCR counsel's failure to do so is a remand for a new PCR hearing. State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

Unlike in Hicks, where it was apparent that PCR counsel had failed to meet his obligations, we cannot conclude on the record before us that PCR counsel in this case failed to discharge his responsibilities under Rule 3:22-6(d). PCR counsel requested more time to prepare because trial counsel, who was under suspension, had failed to respond to repeated requests to turn over his file, but the judge earlier had denied the request. Apparently, shortly before the hearing, trial counsel did produce the file, which PCR counsel characterized as lacking everything but the State's motion for an extended term. PCR counsel relied, in large part, upon discovery provided by the prosecutor. At the hearing, PCR counsel supplied a certification from defendant, which we referenced above, signed the same day as the hearing.

Under these circumstances, it is apparent that PCR counsel was unable to fully investigate and assess the Event Chronology and have a meaningful discussion with his client regarding the document. These limitations were not the result of PCR counsel's ineffective assistance. We therefore remand the matter to the PCR court to permit defendant to supplement his petition and provide further briefing and oral argument regarding the Event Chronology. We do not express an opinion as to the significance of the document with respect to defendant's claim for PCR. On remand, the PCR judge need not address those IAC claims he already decided, and which we affirmed earlier in this opinion.

Affirmed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.