STATE OF NEW JERSEY v. TYRIUS GREEN

NOT FOR PUBLICATION WITHOUT THE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.

TYRIUS GREEN,

Defendant-Appellant.

__________________________________

April 30, 2014

Submitted April 8, 2014 Decided

Before Judges Hayden and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-05-0329.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (John P. Boyle, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Tyrius Green, appeals from the April 26, 2012 order denying his petition for post-conviction relief (PCR). Defendant was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1),(2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. On July 8, 2005, defendant was sentenced for murder to life imprisonment with a thirty-year period of parole ineligibility. The court merged the two weapons offenses and imposed a concurrent ten-year sentence on the charge of possession of a weapon for an unlawful purpose. In an unpublished opinion, we affirmed defendant's conviction on all three counts and affirmed his sentence for murder, but remanded for correction of the sentences imposed on the weapons offenses. State v. Green, No. A-2832-05 (App. Div. June 17, 2008). The Supreme Court denied defendant's petition for certification. State v. Green, 196 N.J. 596 (2008).

In his PCR petition, defendant alleged various improprieties in his trial, including an assertion of ineffective assistance of counsel on various grounds. Based upon a review of the written submissions of both parties and oral argument, the PCR judge (who had not presided over the trial) denied defendant's petition without granting an evidentiary hearing.

On appeal, defendant has not sought review of all of the issues raised in his PCR proceeding. He has narrowed his focus to two of the items, as set forth below, and the denial of his request for an evidentiary hearing. More particularly, defendant argues:

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. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT TO THE TRIAL COURT'S CHARGE TO THE JURY REGARDING IDENTIFICATION WHEN THE COURT ERRONEOUSLY INDICATED SEVERAL WITNESSES HAD IDENTIFIED THE DEFENDANT IN COURT AS HAVING BEEN THE PERPETRATOR.

C. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO CLARIFY THROUGH CROSS-EXAMINATION OF TWO STATE'S WITNESSES THE MISLEADING IMPRESSION ARISING OUT OF THE STATE'S QUESTIONING THAT THE WITNESSES HAD IDENTIFIED THE DEFENDANT IN COURT AS THE PERPETRATOR.

POINT II

RULE 3:22-5 DID NOT OPERATE AS A PROCEDURAL BAR TO PRECLUDE THE DEFENDANT'S CONTENTIONS FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.

We reject defendant's arguments and affirm.

The two substantive points defendant raises are related to each other, both pertaining to identification. The State called five witnesses who were present when an individual shot and killed Edgerton "Dred" Munroe in Trenton on August 14, 2003, at about 10:30 p.m. The witnesses were Kenute Brown, Carol Guerra, Avia Fowler, Linda Brown, and Willie Peters. All of these individuals had known defendant from the neighborhood for many years.

Guerra and Fowler gave statements to the police shortly after the shooting. The statements were reduced to writing, and they initialed and signed them. In the statements, each identified defendant as the shooter. However, at trial, Guerra and Fowler recanted and said they did not know who the shooter was. Their written statements were admitted into evidence, and they were questioned about them in their trial testimony.

None of the five witnesses specifically identified defendant in the courtroom as the person who shot Munroe. All of them did identify defendant as Tyrius Green, a person they had known for many years.

When the trial judge charged the jury, he included an identification charge, which suggested that unspecified witnesses had identified defendant in court as the shooter. More particularly, the charge included the following:

Now, the State, in trying to meet that burden, presented the testimony of several witnesses who identified the defendant. You will recall that these witnesses identified the defendant in court as the person who committed the offenses charged. The State also presented testimony that on a prior occasion before this trial witnesses made such an identification -- identified the defendant as the person who was, you may conclude circumstantially or directly or however you conclude, that the defendant was -- the identification of the defendant was based upon observations and perceptions they made of the perpetrator at the time the offense was being committed.

In his PCR petition, defendant contended that his trial counsel was deficient for not objecting to this charge because no in-court identification of defendant as the perpetrator was made.

In a related argument, defendant contended that by virtue of the sequence of the prosecutor's questioning of Guerra and Linda Brown, the prosecutor created an impression that they were indeed identifying defendant in court as the shooter. These witnesses were first asked a series of questions about the details of the shooting, followed by questions about whether the witnesses were familiar with defendant and could identify him in the courtroom. Of course, being familiar with defendant for many years, they did identify the individual in the courtroom as defendant.

Defendant claims this line of questioning was improper and deceptive. Defendant further contends that his trial counsel was deficient for not objecting or, alternatively, clarifying on cross-examination that the witnesses were merely identifying the person charged as the defendant in the case as Tyrius Green, but not identifying him as the person who shot Munroe.

In his direct appeal, defendant raised these issues under a single point heading as follows:

POINT II

THE TRIAL JUDGE'S ERRONEOUS IDENTIFICATION CHARGE, WHICH WAS UNACCEPTABLY VAGUE AND CONTAINED GROSS MISSTATEMENTS OF FACT, WAS CLEARLY CAPABLE OF LEADING THE JURY TO A VERDICT IT OTHERWISE WOULD NOT HAVE REACHED. THE SEVERE POTENTIAL FOR PREJUDICE CAUSED BY THIS ERRONEOUS CHARGE IS EVEN GREATER WHEN THE CHARGE IS EVALUATED AGAINST THE PROSECUTOR'S INSIDIOUS PRESENTATION OF GUERRA'S AND BROWN'S IDENTIFICATION TESTIMONY. (NOT RAISED BELOW).

[State v. Green, supra, slip op. at 9.]

In rejecting these arguments, we concluded that the identification instruction as a whole was adequate and, while "not perfect," did not constitute a mistake that had the capacity to prejudice defendant and lead to an unjust result. Id. at 17. We considered the misstatement "fleeting" and one which "did not concern an element of an offense or some other legal issues." Id. at 18-19. The misstatement "related to the judge's recollection or recounting of events that occurred in open court and in the presence of the jury." Id. at 19. We noted that the judge had instructed the jury, "Regardless of what counsel may have said, regardless of what I may have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as sole judges of the facts." Ibid. We therefore found no basis for reversal as a result of the misstatement in the identification instruction. Ibid.

We also rejected defendant's argument about the questioning of Guerra and Linda Brown. While noting that the line of questioning may have been considered deceptive, we were "not convinced that this questioning constituted plain error." Id. at 20.

We now address the arguments defendant presents in this appeal. In Point II, defendant argues that he should not be procedurally barred from raising his substantive claims in the PCR proceeding by Rule 3:22-5, which provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding. . . ." We first note that the PCR judge found the claims that are now before us procedurally barred because of the prior adjudication on direct appeal, but he nevertheless considered each of defendant's claims on the merits and found them substantively deficient. We agree in both respects.

A PCR proceeding is not a substitute for direct appeal, R. 3:22-3, and it may not be utilized to re-litigate issues already decided on the merits. State v. Cerbo, 78 N.J. 595, 605 (1979). If the claim made in the PCR proceeding is either identical or substantially equivalent to the issue previously adjudicated, it is barred by Rule 3:22-5. State v. Marshall, 173 N.J. 343, 351 (2002).

The claims defendant has made here are identical or substantially equivalent to those raised on direct appeal. They have been adjudicated adversely to defendant, and he does not have the option of now re-litigating them in a collateral proceeding. The claims are barred by Rule 3:22-5.

The claims also lack substantive merit. A review of the trial transcript, including the summations of both counsel, makes it abundantly clear that this trial was all about identification of the person who shot and killed Munroe. Throughout their summations, both counsel presented arguments to the jury highlighting the discrepancies between the identifications Guerra and Fowler made in their statements to the police soon after the crime and their denial of those identifications in the courtroom.

The prosecutor made extensive arguments as to why the jury should accept the written statements and reject the in-court testimony. Defense counsel argued extensively and repeatedly that the witnesses were lacking in credibility, they lied one time or the other and should not be believed, and to accept one statement over the other would be nothing more than flipping a coin and could not constitute proof of guilt beyond a reasonable doubt. As we said in our prior opinion on direct appeal,

it is highly unlikely that a jury which sat through a . . . trial in which the primary evidence was victim identification testimony, and then heard summations which discussed those identifications at length, was unaware of the specific identifications covered by the identification instruction.

[State v. Green, supra, slip op. at 14 (citing State v. Walker, 332 N.J. Super. 535, 550 (App. Div. 1999)).]

Even if we were to assume, for purposes of analysis, that trial counsel was deficient for not objecting to the instruction, the second-prong of the Strickland/Fritz1 test was met because the error did not raise a reasonable probability that, but for such error by counsel, the results of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. For the reasons we have expressed, this fleeting misstatement in the identification instruction did not have the capacity to undermine confidence in the outcome of defendant's trial.

We likewise find no merit regarding the method of direct examination by the prosecutor of Guerra and Linda Brown. With respect to this issue, we cannot find that either prong of the Strickland/Fritz test was satisfied. Our review of the questioning of those witnesses does not reveal any obvious deception that would have induced a reasonably competent attorney to object. Nor would a reasonably competent attorney necessarily revisit the issue on cross-examination, which might open the door to further questioning by counsel and consideration by the jury of the fact that these witnesses had in fact identified defendant as the perpetrator when speaking to the police.

Counsel's conduct is presumptively within the wide range of reasonable professional assistance to a criminal defendant and, to rebut this presumption, a defendant has the obligation to prove that his attorney's action did not amount to sound trial strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Courts should refrain from second-guessing strategic decisions.

We also find the second prong lacking. While we are not persuaded that "clarification" was required to assure that the jury understood that the in-court identifications of defendant were only identifying who he was and not that he was the perpetrator, such clarification would not have affected the outcome of the trial.

Finally, defendant argues that the PCR judge erred in denying his request for an evidentiary hearing. Such a hearing is discretionary with the trial court and is warranted only if a defendant has made a prima facie showing of entitlement to relief. State v. Preciose, 129 N.J. 451, 462 (1992). It is necessary only if "there are material issues of disputed fact that cannot be resolved by reference to the existing record." R. 3:22-10(b).

We agree with the PCR judge that no evidentiary hearing was warranted here. Viewing the evidence in the light most favorable to defendant, there has been no prima facie showing of entitlement to relief. Further, defendant has directed us to no material facts in dispute that would be subject to resolution at an evidentiary hearing. On the contrary, the factual predicates underlying defendant's claims are contained in the trial record. The PCR judge did not err in refusing defendant's request for an evidentiary hearing.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).