STATE OF NEW JERSEY v. MARVIN WORTHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2346-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN WORTHY,

Defendant-Appellant.

_______________________________

March 30, 2011

 

Submitted March 21, 2011 Decided

 

Before Judges Reisner and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Marvin Worthy appeals from an order entered October 8, 2009, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

 

I.

A jury found defendant guilty of conspiracy to murder Rashon Roy, N.J.S.A. 2C:5-2,1 first-degree murder of Roy, N.J.S.A. 2C:11-3, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. At the same trial, the jury convicted three co-defendants. The jury found co-defendants Renato Santos and Gregory Maples guilty of Roy's murder and conspiracy to commit Roy's murder. Santos was also convicted of possessing a weapon for an unlawful purpose. Lastly, the jury convicted James Irwin of hindering apprehension and theft, but acquitted him of attempted arson. A fifth indictee, Ernesto Barber, entered a plea of guilty for theft and testified for the State.

At sentencing, the court merged defendant's conspiracy conviction into the murder conviction and imposed a thirty-year sentence, with a thirty-year term of parole ineligibility, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a ten-year concurrent term on the weapons conviction, with a five-year period of parole ineligibility.

We affirmed defendant's conviction in an unpublished opinion that addressed both defendant's and Santos's appeal. State v. Santos, No. A-0065-04T4 (App.Div. Dec. 22, 2006); State v. Worthy, No. A-1846-04T4 (App.Div. Dec. 22, 2006). However, this court remanded, directing the trial court to correct the sentence by merging the weapons conviction into the murder conviction. The Supreme Court denied defendant's petition for certification. State v. Worthy, 190 N.J. 396 (2007).

Defendant then filed this PCR petition, in which he claimed that his trial counsel provided ineffective assistance by failing to conduct a reasonable pre-trial investigation that would have enabled him to obtain exculpatory statements from co-defendants Santos and Irwin, as well as non-defendants Steven Bennett and Jem Salamanca. Judge James Den Uyl, who did not preside at the trial, denied the petition without an evidentiary hearing in a thorough oral opinion issued on October 7, 2009. This appeal followed.

II.

We view defendant's claim of unexplored exculpatory evidence in light of the trial evidence, which we described in detail in our opinion affirming defendant's conviction, and we excerpt below:

At the trial, Hakim Shabazz testified that Halim Shabazz was his twin brother, and that the decedent, Rashon Roy, was his older brother. He testified that Roy, Santos, and Maples were involved in a "business relationship." According to Hakim, on April 25, 2002, he and his two brothers were riding around in a van with Maples, Santos, and several other people. During the ride, Maples "was saying that my brother [Roy] tried to get him killed in Philly:"

 

. . . .

 

Hakim also testified that during the argument in the van Maples "said . . . that he would kill us. That if he thought that my brother was trying to kill him, that he will kill all of us." . . .

 

Halim Shabazz also testified to the incident on April 25. According to Halim, Maples accused Roy of trying to have someone chase him in Philadelphia. . . . Maples then stated that "We going to handle this when my cousin [Worthy] get here." According to Halim, the group returned to Lakewood, picked up Worthy and dropped off Hakim. Thereafter, Maples, Worthy, Santos, Roy, and Halim set off in the van to spend the evening in Manhattan. However, instead of driving to Manhattan, Santos drove them to a "miniature golf place" near either Yonkers or Yankee Stadium, where all of the passengers got out to relieve themselves.

 

According to Halim, when he, Roy and Maples got back in the van, Worthy and Santos stayed outside the van and Worthy pointed a gun at Roy, while Santos pointed a gun at Halim. According to Halim's testimony, Santos and Worthy appeared to be taking direction from Maples:

 

Q. Where was Marvin Worthy?

 

A. Standing in front of my brother with a gun in his face.

 

. . . .

 

Q. Did Marvin Worthy say anything at that point?

 

A. He was just holding the gun. I couldn't really hear what he was saying because I was talking to Khaleef [Maples]. It was like, Khaleef, what's going on, man? .. .

 

And Khaleef [Maples] just said he put his head down and he was looking, like, at the steering wheel. And he was like, yo, get out the car. Get out the car. And I was, like, what? I was, like, Khaleef, what's going on? . . .

 

And I hear Red [Santos] at the side of me saying, don't run . . . . If you run, I shoot you . . . . And I looked and I seen [Renato] Santos with a gun in my face.

 

. . . .

 

They all got back in the van, with Worthy and Santos sitting with the guns "in their laps."

 

Halim testified that "Marvin Worthy turned around, looked at me in my face and said, I was going to shoot both of you all. I was going to kill both of you all." Worthy also "said he killed people before" and stated when they "were riding through Newark, he was, like, yeah, that's where them two boys got killed. Yeah, I did that." . . .

 

Ernesto Barber testified that he was in a business relationship with James Irwin, Maples, Worthy, Santos and Steven Bennett. Barber testified that on April 28, 2002, Maples, Worthy, Bennett and Irwin were all with Barber at Irwin's home in Lakewood. All five men left the house in a green Jeep Cherokee with Maples driving. During the ride Maples talked to Irwin about the incident in Yonkers, in which Santos and Worthy pointed guns at "Jamal." . . . According to Barber, during the same conversation in the Jeep, Worthy said that he and Santos had pointed guns "to the victim's head" but did not shoot him because he "was praying for his life." Maples then brought Irwin, Bennet [sic] and Barber back to Irwin's house and left.

 

Fifteen minutes later, Worthy came by in a beige Acura and picked up Irwin, Bennett and Barber to take them to Toms River. . . . Worthy stated "he's not afraid to shoot at anybody that tries him." Barber testified that Worthy picked up a gun at an apartment building in Toms River and showed it to them. . . . Worthy also told them the gun was loaded. After dropping off Bennett, Worthy drove Irwin and Barber to the High Point apartments in Lakewood. Worthy made several calls on his cell phone, and Bennett arrived at High Point some time later, driving a red car. Maples arrived next, in the same green Jeep he had been driving before.

 

As Barber, Worthy, Bennett and Irwin walked over to the Jeep, Barber saw that Maples, Roy and Santos were already in the Jeep. Maples was in the driver's seat with Santos behind him. Roy ("Jamal") was in the front passenger's seat. Barber testified that Worthy got into the Jeep on the rear passenger's seat behind Roy. Barber and Bennett walked back to Bennett's car, with Irwin following shortly after. Barber then saw Maples rush out of the Jeep and get into the beige Acura on the passenger side.

 

Then Barber saw Santos get out of the Jeep and run around to the front passenger side of the Jeep with "a gun in his hand." Roy tried to get out of the car, but Santos leaned on the door and prevented him from leaving. Barber then saw Santos open the door and "go, like, almost halfway in with the gun first." Worthy was still in the car. Barber then heard two shots and saw Santos backing out of the car door. Barber saw the victim leave the Jeep through the driver's side. He heard a third shot and saw Roy fall against a mini-van parked next to the Jeep. The victim started to run with Santos chasing him and shooting at him. When Roy fell, Santos "stood over him and shot him one time."

 

Worthy exited the car and went to the Acura. Bennett ran into the woods. Barber and Irwin ran to the Jeep and started backing up. Barber saw Santos run to the Acura and try to get in, but it left without him. Santos then ran to the Jeep, tried and failed to get in, but threw in the gun and some gloves. Barber testified that he and Irwin left in the Jeep and eventually crashed into a tree in the woods in Jackson. They attempted to "torch" the Jeep, and then buried the guns in the woods nearby. Barber was picked up by the police and questioned the next day. He confessed and led them to the buried guns.

 

. . . .

 

According to Officer Frey, who was called to the scene after the shooting, police found a green mini-van in the parking lot; the van bore the marks of a ricocheted bullet. . . . According to Detective Pozalante, neither blood nor bullet holes were found in the Jeep. Sergeant Armstrong, a fingerprint expert, testified that fingerprints from Maples, Barber, Roy, Santos, and Halim Shabazz were found in the Jeep.

 

Daniel Barrett, a firearms and ballistics expert, testified that most of the shell casings and bullet fragments found at the scene or in the victim could not be matched to any gun. However, one of the spent shell casings and one of the bullet fragments removed from the victim matched a Smith & Wesson pistol, which was the gun found buried in the woods encased in a white sock. Barber had identified Worthy's gun as having been wrapped in a white sock. Barrett could not match any of the shells to the other gun.

 

. . . .

 

Worthy testified in his own defense. He denied being involved in any of the activities alleged to have occurred on April 25, 2002. He denied being in Lakewood on April 28 and denied that he was in any way involved in the shooting of Roy. He admitted knowing Maples, Santos, Irwin, Bennett and the Shabazz brothers. He denied ever knowing Barber. He admitted that his mother owned a beige Acura and that he drove it on occasion.

 

In summary, the State presented evidence at trial that Santos, Maples, and Roy were involved in an undisclosed business. On April 25, 2002, while on a trip to Yonkers, New York with defendant, Roy, Santos, and several other men, Maples accused Roy of trying to have him killed. Defendant and Santos pointed guns at Roy and Roy's brother. Defendant boasted that he was capable of homicide. At Maples's direction, defendant and Santos shot Roy to death on April 28, 2002, in Lakewood.

 

 

 

III.

In appealing the denial of his PCR petition, defendant raises the following points:

THE TRIAL COURT ERRED IN DENYING THE DFEENDANT'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. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE WAS AT LEAST ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION, AND THE TRIAL COURT ERRED BY FAILING TO AFFORD HIM SUCH A HEARING.

 

Defendant claimed in his verified petition that Santos would have given a statement before trial that would have exculpated Worthy of all charges in the indictment. Defendant claimed that Irwin would have excluded him as one of the two shooters, but does not say whether Irwin would still have placed defendant at the scene or otherwise undermined his defense. Lastly, he claimed that a third person, Jem Salamanca, would have fully exculpated him. Defense counsel asserted in oral argument on the PCR petition before Judge Den Uyl that defendant also claimed that Steven Bennett would have stated that defendant was not a shooter. However, defendant did not include this assertion in his verified petition.

Having reviewed the record, we affirm substantially for the reasons set forth in Judge Den Uyl's well-reasoned oral opinion. Judge Den Uyl ultimately found that defendant had failed to establish a prima facie case of ineffective assistance of counsel because defendant provided the court with only bald assertions about the exculpatory evidence that trial counsel allegedly could have uncovered. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (stating that defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"). We add these comments.

This court applies the well-settled two-prong standard for reviewing an ineffective assistance of counsel claim. "[A] criminal defendant is entitled to the assistance of reasonably competent counsel, and . . . if counsel s performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant s conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987). In assessing whether counsel s performance was deficient, the petitioner must show that "'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

The PCR court s review of trial counsel s performance is deferential. '[J]udicial scrutiny of counsel s performance must be highly deferential.' . . . [A court] must avoid second-guessing defense counsel s tactical decisions and viewing those decisions under the distorting effects of hindsight. State v. Marshall, 148 N.J. 89, 157 (1997) (quoting Strickland v. Washington, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694)). "There is 'a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland v. Washington, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

A court reviewing a PCR petition should consider counsel's overall performance in the case as a whole, and avoid giving undue weight to isolated issues, mistakes, or miscalculations.

The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial."

 

[Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991) (citation omitted)).]

 

In assessing whether the deficient performance caused prejudice, the court must find there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. State v. Fritz, supra, 105 N.J. at 60-61 (quoting Strickland v. Washington, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698)). In other words, a trial counsel s deficiency must undermine one s confidence in the jury s verdict. State v. Allegro, 193 N.J. 352, 367 (2008); State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).

While the court must view trial counsel s performance deferentially, it must also view the facts alleged by petitioner favorably in deciding whether a prima facie claim has been established. State v. Preciose, 129 N.J. 451, 463 (1992) (stating that courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim ). On the other hand, as the trial judge noted, mere "bald assertions" will not suffice to establish a prima facie claim of ineffective assistance of counsel. State v. Cummings, supra, 321 N.J. Super. at 170.

Adequate pre-trial investigation is an essential element of effective assistance. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Yet, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Ibid. Moreover, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. State v. Cummings, supra, 321 N.J. Super. at 170.

Courts should "ordinarily . . . grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, supra, 129 N.J. at 462. In other words, a hearing should be held if the PCR petition involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

However, there is a practical aspect to the court's decision whether to hold a hearing. In short, a court need not hold a hearing if it will not further the court's analysis, or the petitioner's allegations lack the detail or support to warrant it.

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

 

[State v. Marshall, supra,, 148 N.J. at 158 (citations omitted).]

 

The mere assertion of issues of fact is not enough.

 

We do not mean to suggest that a post-conviction relief applicant is entitled to a plenary hearing in every case in which an issue of fact is asserted. A trial court judge, of course, after considering the papers submitted in support of and in opposition to the application, has the discretion to evaluate an issue as lacking adequate factual or legal merit.

 

[State v. Pyatt, supra, 316 N.J. Super. at 51.]

 

Applying those standards, the trial court correctly denied defendant's PCR petition without a hearing. Defendant claimed that he was provided ineffective assistance of counsel because his attorney failed to conduct an adequate pre-trial investigation that would have produced exculpatory statements from multiple witnesses.

The court need not resolve the issue of whether the investigation was adequate under the circumstances, when viewed with the deference accorded trial counsel's decisions. Even assuming for argument's sake that trial counsel was ineffective by conducting an inadequate investigation, defendant did not meet the second prong of the Strickland test, because he failed to provide the court with any cognizable evidence that the desired investigation would have borne fruit. Defendant produced no competent evidence that Irwin, Santos, Salamanca or even Bennett would have exculpated defendant. Indeed, defendant did not even mention Bennett in his verified petition.

In short, petitioner presented nothing but conclusory claims of what the uncalled witnesses would have said. Those claims were unsupported by affidavits or certifications on personal knowledge as required by State v. Cummings, supra, 321 N.J. Super. at 170. Thus, they are the kind of "bald assertions" that do not suffice to establish a prima facie case

that would warrant a hearing. Ibid. Consequently, no hearing was necessary and the petition was correctly denied.

A

ffirmed.

1 The indictment and judgment of conviction incorrectly designated conspiracy to commit murder as a second degree crime. It is a first-degree crime. N.J.S.A. 2C:5-4(a).