STATE OF NEW JERSEY v. TIMOTHY HEARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY HEARD,

Defendant-Appellant.

_______________________________________________

August 6, 2013

Submitted April 16, 2013 Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-07-1104.

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

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Timothy Heard appeals from the denial of his petitions for post-conviction relief (PCR) without an evidentiary hearing. We set forth the substantial prior procedural history by reference to our earlier opinions:

A Middlesex County Grand Jury returned a twenty-five count indictment charging defendant, and co-defendants, Jalonn Lassiter and Kyle Parker-Hall, with criminal offenses in the burglary of [a residence on] Central Avenue, New Brunswick, and in the armed robberies, aggravated sexual assaults and kidnapping of the victims who resided [on] Stone Street, New Brunswick, which occurred on March 8, 2004. After a jury trial, defendant was found guilty of third-degree burglary . . ., N.J.S.A. 2C:18-2 (count six), which is a lesser offense of the original charge in the indictment as the jury could not agree whether the offense was committed while armed; third-degree theft of property in excess of $ 500, . . ., N.J.S.A. 2C:20-3 (count seven); second-degree conspiracy to commit armed-burglary, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:18-2(a) (count one); and second-degree burglary [at] Stone Street, N.J.S.A. 2C:18-2 (count eight). Defendant was acquitted of second-degree possession of a weapon (handgun), N.J.S.A. 2C:39-4a (count five) and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count seventeen).

No verdict was reached on the charges of third-degree possession of the weapon (box cutter) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and the five counts of first-degree robbery, N.J.S.A. 2C:15-1, (counts nine through thirteen).

On March 11, 2005, defendant's motion for a new trial was denied. After merger of count one, defendant was sentenced on count eight to a ten-year prison term with an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2; and on counts six and seven, to four-year prison terms to be served concurrently with each other but consecutively with the term imposed on count eight. This resulted in an aggregate prison sentence of fourteen years with an eight and one-half year period of parole ineligibility.

[State v. Timothy Heard, No. A-5401-04 (App. Div. Oct. 3, 2007) (Heard I) (slip op. at 1-3).]

We affirmed defendant's convictions, but remanded the matter for resentencing in light of the decision in State v. Natale, 184 N.J. 458 (2005). Id. at 7. Defendant's petition for certification was denied. State v. Heard, 195 N.J. 522 (2008).

"While his appeal was pending, in June 2005, defendant was retried on those charges previously resulting in a mistrial. Defendant was found guilty on all counts, i.e., third-degree possession of the box cutter for an unlawful purpose, and five counts of armed robbery in the first-degree." State v. Timothy Heard, No. 6520-06 (App. Div. Apr. 30, 2009) (Heard II) (slip op. at 3-4). "With respect to counts nine through thirteen, five counts of robbery in the first-degree, the judge sentenced defendant to a term of fifteen years with an 85% NERA parole disqualifier on each count. The judge ran the sentence imposed on count eleven, the first-degree robbery of M.L., consecutively to the other four robbery sentences, all of which he ran concurrently to each other. The judge merged count three, the weapons offense, into the robbery counts." Id. at 29-30.

We affirmed defendant's conviction and sentence, remanding only for amendment of the judgment of conviction to vacate a financial penalty; we preserved defendant's ability to raise claims of ineffective assistance of trial counsel. Id. at 34. Defendant's petition for certification was denied. State v. Heard, 200 N.J. 209 (2009).

In August and September 2009, defendant filed two pro se petitions for PCR, respectively challenging the convictions from the first and second trials. As to Heard I, defendant raised claims of legal error by the trial judge, as well as allegations that trial and appellate counsel provided ineffective assistance. Specifically, among other things, defendant asserted that trial counsel provided ineffective assistance by failing to argue for dismissal of count eleven, the robbery of M.L. and to call Parker-Hall as a witness. Defendant also asserted that appellate counsel provided ineffective assistance by failing to raise on appeal legal error regarding count eleven and trial counsel's deficiency in this regard.

As to Heard II, defendant raised claims of legal error by the judge in the second trial, and specific claims of ineffective assistance of trial counsel, including failure to: properly cross-examine M.L.; call Parker-Hall as a witness; and object to summation comments by the prosecutor.1 Appointed counsel's PCR brief essentially reiterated these specific arguments.

A hearing on the petitions took place on August 5, 2011, before a judge who was not the trial judge. In a comprehensive oral opinion, the judge denied defendant's petitions, and this appeal ensued.

Before us, defendant raises the following arguments:

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. . . . .2

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S CONCESSION DURING HIS MOTION FOR A JUDGMENT OF ACQUITTAL THAT AN ESSENTIAL ELEMENT OF ROBBERY ARISING OUT OF COUNT [ELEVEN] EXISTED WHEN, IN FACT, NO TESTIMONY WAS EVER ELICITED INDICATING ANYTHING OF VALUE WAS TAKEN FROM THE VICTIM (M.L.).

C. TRIAL COUNSEL WAS REMISS BY FAILING TO CALL CO-DEFENDANT KYLE PARKER-HALL AT EITHER THE FIRST OR SECOND TRIAL[].

POINT II: THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO CHALLENGE THE TRIAL COURT'S RULING WITH RESPECT TO COUNT [ELEVEN] ON APPEAL.

In a pro-se supplemental brief, defendant argues:

POINT I: THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S IMPROPER CLOSING ARGUMENT DURING THE SECOND TRIAL.

POINT II: THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO ELICIT KEY INFORMATION DURING THE CROSS-EXAMINATION OF M.L. REGARDING THE KNIFE USED DURING THE INCIDENT.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

To establish a claim of ineffective assistance of counsel, 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, he 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 that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. We apply the same standard to claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). The court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted) ("[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie case, defendant must 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." R. 3:22-10(b); see also State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (same). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).

We apply these standards to the specific issues raised on appeal.

Claims Regarding Count Eleven -- Points I(B), II and Point II in the supplemental brief

Count eleven of the indictment charged defendant and his co-defendants with first-degree robbery of M.L. In her testimony at the first trial, M.L. never indicated that any of her personal property was stolen. Trial counsel did not move for acquittal. R. 3:18-1 As noted, the jury was unable to reach a unanimous verdict on count eleven. At the second trial, M.L. specifically testified that her cell phone was taken. Defendant was convicted of count eleven, and the judge imposed a consecutive sentence on that robbery conviction.

Before the PCR judge, defendant contended that trial counsel provided ineffective assistance during the first trial by not moving for a judgment of acquittal. The PCR judge concluded that when the State's evidence was viewed in its entirety, and applying the standards applicable to a Rule 3:18-1 motion, had trial counsel made such a motion, it would have been denied. Thus, defendant failed to establish the second prong of the Strickland/Fritz test.

Before us, defendant reiterates the claim that trial counsel was ineffective for not moving for a judgment of acquittal, and appellate counsel was ineffective for not presenting the issue on direct appeal. We disagree.

"At the close of the State's case . . ., the court shall . . . order the entry of a judgment of acquittal . . . if the evidence is insufficient to warrant a conviction." R. 3:18-1. However, a defendant's motion must be denied if, "'viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).

"A person is guilty of robbery if, in the course of committing a theft, he . . . [i]nflicts bodily injury or uses force upon another[,] or . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury[,] or . . . [c]ommits or threatens immediately to commit any crime of the first or second degree." N.J.S.A. 2C:15-1(a). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Ibid. "Robbery is a crime . . . of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).

At the first trial, the State's favorable evidence and inferences included the following: M.L. resided at the Stone Street address and occupied a certain bedroom; when police responded and investigated, that bedroom was ransacked; defendant and his cohorts forced all the occupants into a bathroom and demanded money, credit cards and keys; the demands for money and valuables continued during the episode; Dargan testified that he saw M.L. lying face down on bed, albeit in a different bedroom, and defendant was rummaging through the drawers; without specific reference to M.L., the State's main investigator testified that cell phones were stolen from four of the victims. This evidence would have been sufficient to withstand any motion for acquittal on Count Eleven, since, even without M.L. stating she was the victim of a theft, the jury could have found that defendant was attempting to commit a theft under circumstances that made him guilty of first-degree robbery.

It follows defendant cannot demonstrate that trial counsel's failure to move for acquittal affected the outcome. Fritz, supra, 105 N.J. at 58. The same analysis applies per force to defendant's claim that appellate counsel provided ineffective assistance by failing to raise the issue on appeal.

In his pro se submission, defendant contends that counsel provided ineffective assistance during the second trial because he failed to adequately cross-examine M.L. regarding the alleged weapon used during her assault. As noted above, at the time of the second trial, defendant faced only one weapons offense, i.e., possession of "a boxcutter type knife with purpose to use it unlawfully," count three of the indictment.

At the second trial, M.L. testified that a knife was placed to her throat. In her prior statement to police, she stated that she never saw the knife, but that someone told her it was a "switchblade." Trial counsel failed to cross-examine her about this alleged inconsistency.

Other evidence demonstrated that defendant was at Parker-Hall's apartment approximately a week after the events, along with Dargan, when police executed a search warrant and found two knives and a box cutter. Heard II, supra, (slip op. at 13). The State produced Sampson Coleman as a witness; he claimed defendant admitted that he held a knife to M.L.'s neck. Ibid.

The PCR judge noted that the identity of the particular knife was irrelevant and, "whether the object was a knife or a switchblade would have not affected the outcome of th[e] trial." We agree. Defendant's specific arguments on appeal lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Calling Parker-Hall as a Witness -- Point I(C)

Although it is not part of the appellate record, we gather from the State's filed opposition to defendant's PCR petitions that Parker-Hall provided a full statement to police regarding his participation in the crimes alleged in the indictment. On October 19, 2004, before defendant's first trial, pursuant to a plea bargain and while under oath, Parker-Hall pled guilty to various charges for events that took place at both Central Avenue and Stone Street. Parker-Hall agreed to provide truthful testimony at the trial of any co-defendant.3

However, in a letter dated October 24, 2004, Parker-Hall claimed that defendant was not involved in any of the crimes and was "a couple of blocks down the street during these crimes." He further claimed that since he was taking "full responsibility for [his] actions," he hoped that co-defendants Lassiter and Dargon would do the same, and "[i]f not," Parker-Hall was "willing to[] testify on [defendant's] behalf." In a second "affidavit" dated November 28, Parker-Hall claimed defendant never entered the Stone Street house, and that he and Dargan "plotted to[] and did make false statements against [defendant] . . . ."

Parker-Hall subsequently moved to set aside his guilty plea. In support of the motion, Parker-Hall certified that he was not guilty of the crimes to which he previously pled guilty. However, before Parker-Hall's motion was heard, the State received a letter from an inmate in the county correctional center who overheard conversations between defendant and Parker-Hall while incarcerated together. This inmate claimed that Parker-Hall acknowledged his guilt of the crimes but wanted to withdraw his guilty pleas so as to nullify any obligation to testify against defendant, a fellow gang member. Parker-Hall ultimately withdrew his motion to retract his guilty plea.

At defendant's first trial, the State introduced several letters written by defendant, including a letter found outside his cell the night before defendant testified. It suffices to say that in the letter, defendant explains how Parker-Hall should testify so as exonerate defendant of aggravated sexual assault. The letter makes it clear that trial counsel fully appreciated Parker-Hall's testimony would not help defendant's case.

The PCR judge concluded "that calling Parker-Hall as a witness had at least as much potential to prejudice the defendant's case as it did to benefit it." He characterized Parker-Hall as "an incredible witness." The judge conclude trial counsel's decision was "clearly sound trial strategy" and did not evince ineffective assistance.

We agree. Defendant's arguments to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Prosecutor's Summation during Second Trial -- Point I in supplemental brief

Defendant contends that trial counsel provided ineffective assistance by failing to object to comments made by the prosecutor in the second trial regarding the sexual assault of M.L., for which defendant was acquitted in the first trial. We provide the context by quoting from one of our earlier opinions:

Prior to trial, defendant objected to admission of any evidence regarding the sexual assaults. In denying defendant's application, the trial judge concluded that:

[T]he sexual assault that allegedly took place at the time of the armed robberies is part of the same criminal activity. And also, since the State is required to prove for the armed robbery counts that force was used and there was the infliction of bodily injury upon the various victims, then clearly the State should be allowed to establish that as part of the use of force [and] the infliction of bodily injury [] some of the victims were sexually assaulted.

The judge further stated:

[T]he State is alleging here that this defendant acted in concert with others during the commission of these crimes. And it does have to demonstrate the credibility of the complaining witnesses, if you will. And clearly to the extent that a complaining witness testifies as to a sexual assault and then there is confirmatory evidence in the form of DNA analysis or other corroboration, I think the State is entitled to admit that evidence . . . for purposes of demonstrating the credibility of the witnesses.

However, recognizing that defendant was acquitted of aggravated sexual assault at the first trial, the judge ordered the State "to restrict the details of these sexual assaults as much as possible . . . since [they] are not counts at this point that the State in any way can prosecute." The judge also indicated he would give appropriate instructions to the jury at various stages of the trial.

[Heard II, supra, (slip op. at 15-16).]

On direct appeal, defendant challenged the denial of his motion for a new trial, one of the supporting grounds being the prosecutor's comments in summation regarding the sexual assaults. Id. slip op. at 28. The trial judge denied defendant's motion, finding the summation comments "were consistent with his initial ruling admitting the sexual assault evidence and were not unduly prejudicial." Id. (slip op. at 29). We affirmed based upon the trial judge's reasoning. Ibid.

Defendant now reasserts essentially the same argument under the rubric of ineffective assistance.4 We reject the claim as lacking sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant was represented by the same counsel in the two trials.

2 Subpoint A sets forth the "prevailing legal principles regarding claims of ineffective assistance of counsel . . . ."

3 Lassiter and Dargan had already entered guilty pleas that included agreements to testify truthfully at any co-defendant's trial. Dargan testified against defendant.

4 In his pro se filing on direct appeal, defendant also asserted that trial counsel was ineffective for failing to object. As noted, we permitted defendant to preserve his claims of ineffective assistance for PCR review.