STATE OF NEW JERSEY v. TYSHEIM MURPHY

NOT FOR PUBLICATION WITHOUT THE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.

TYSHEIM MURPHY,

Defendant-Appellant.

__________________________

November 22, 2016

Submitted October 25, 2016 - Decided

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0858.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tysheim Murphy appeals from a June 20, 2014 order denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons stated by Judge Bernard E. DeLury, Jr. in his written opinion dated October 1, 2014.

The case history and the trial evidence were detailed in Judge DeLury's opinion and in our opinion deciding defendant's direct appeal. State v. Murphy, A-4420-10 (App. Div. May 16, 2012), certif. denied, 212 N.J. 459 (2012). In summary, the victim was lured to an apartment in a rooming house, at the invitation of a woman acquaintance, Amy Curran. When the victim arrived, two men emerged from the bathroom and robbed him at gunpoint, taking cash and a cell phone. Defendant and his co-defendant, Raheem Hayes, were arrested shortly after the robbery, and the victim identified them as the robbers. When he was arrested, defendant had the victim's cell phone in his possession.

Defendant did not testify at the trial, but he presented an alibi witness who claimed he was with defendant, standing on a street corner, at the time the robbery occurred. Co-defendant Hayes testified that he had a dispute with the victim over a drug deal, and that the victim thereafter falsely accused him of robbery. Hayes testified that he did not know defendant Murphy and that Murphy had nothing to do with the incident.

As argued to the jury by his attorney, Murphy's defense was that he was not involved in the incident at all, and was the victim of mistaken identification. In support of that defense, Murphy's counsel strenuously attempted to keep from the jury any evidence that Murphy knew Amy Curran or that he had a prior relationship with her.

Prior to the trial, defense counsel had initially considered calling Curran as a trial witness, which would have involved arranging for her to be brought in from an out-of-state prison where she was incarcerated. However, that strategy changed shortly before the trial began.

In defendant's presence, defense counsel placed on the record an extensive explanation of his strategic reasons for deciding not to call Curran as a witness. In particular, he explained to the trial judge that Curran's possible testimony would place defendant at the apartment where the victim claimed he was robbed, and in many other respects would match the victim's version of events. Her testimony would undercut the defense strategy, which was to convince the jury that defendant had nothing to do with the incident. Defendant - who had repeatedly addressed the court to express concerns in previous pre-trial proceedings - expressed no disagreement with this strategy.

Defendant was convicted of first-degree armed robbery N.J.S.A. 2C:15-1, and associated offenses, and was sentenced to thirty-eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On his direct appeal, defendant argued that the trial court should not have allowed the State to admit evidence of his prior association with Curran. He presented that contention, as well as others, in the following points

POINT I: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR SEVERANCE AND/OR MISTRIAL MADE AFTER THE OPENING STATEMENT BY COUNSEL FOR CO-DEFENDANT HAYES.

A. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS UNDULY PREJUDICED BY THE DANGER OF "GUILT BY ASSOCIATION" THAT WAS AGGRAVATED BY THE OPENING STATEMENT.

B. THE TRIAL COURT MISAPPLIED THE "LAW OF THE CASE" DOCTRINE.

C. THE TRIAL COURT'S MISPLACED CONFIDENCE IN ITS ABILITY TO ISSUE AN ADEQUATE AMELIORATING INSTRUCTION RENDERED THE DEFENDANT'S TRIAL UNFAIR.

POINT II: THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO APPLY APPROPRIATE N.J.R.E. 404(B) CRITERIA IN ADMITTING EVIDENCE OF A PRIOR ASSOCIATION BETWEEN THE DEFENDANT AND "AMY."

POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S OVERZEALOUSNESS IN SUMMATION (NOT RAISED BELOW).

POINT IV: THE MOTION COURT ERRED IN NOT DISMISSING THE INDICTMENT BECAUSE THE PROSECUTOR'S INADEQUATE INVESTIGATION AND MANNER OF PRESENTATION RESULTED IN THE SUBMISSION OF "HALF TRUTHS" AND UNDERMINED THE DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY.

POINT V: THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT VI: IMPOSITION OF THE EXTENDED TERM BASE SENTENCE OF 38 YEARS IMPRISONMENT ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND REPRESENTED A MISAPPLICATION OF THE COURT'S DISCRETION.

A. THE TRIAL COURT APPLIED INAPPROPRIATE SENTENCING CRITERIA IN GRANTING THE PROSECUTOR'S MOTION TO IMPOSE AN EXTENDED TERM SENTENCE.

B. IMPOSITION OF A 38 YEAR BASE TERM ON THE DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE.

We affirmed defendant's conviction but remanded for resentencing.1 Defendant filed a PCR petition on December 20, 2012, which was supplemented by a March 20, 2014 brief filed by his appointed counsel. In his petition, defendant claimed his trial attorney should have called Curran as a witness. He also asserted that his trial counsel did not adequately consult with him, and submitted jail records which he asserted showed that the attorney only visited him once at the jail. He further asserted that his trial counsel was ineffective in cross-examining witnesses. In a supplemental pro se submission, defendant claimed that, had he known earlier that his attorney was not going to call Curran as a trial witness, he would have accepted the State's pre-trial plea offer of seven years in prison.

In a lengthy written opinion, Judge DeLury considered and rejected all of defendant's PCR arguments, concluded that defendant had not presented a prima facie case of ineffective assistance of counsel, and denied the petition without an evidentiary hearing. Citing State v. Fritz, 105 N.J. 42, 52 (1987), Judge DeLury noted the great deference due to an attorney's trial strategy, and he found that trial counsel was not ineffective in deciding not to call Curran as a witness. See also State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

Judge DeLury also found no evidence that trial counsel misled defendant about his intent to call Curran as a witness. Rather the record reflected that the issue "had been debated back and forth" and trial counsel finally decided as a strategic matter that Curran's testimony would be more harmful than helpful to the defense. Judge DeLury also considered the record of the plea negotiations, which clearly indicated that defendant was never willing to accept a plea deal involving more than a five-year sentence, which the State was not willing to offer.

On this appeal, defendant presents the following argument

I. THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING IN ORDER TO DETERMINE WHETHER PETITIONER'S TRIAL COUNSEL WAS INEFFECTIVE.

In a supplemental pro se brief, defendant presents these arguments

Point I

THE PCR JUDGE ERRED [WHEN] IT DETERMINED THAT NO EVIDENTIARY HEARING WAS REQUIRED BECAUSE NO EVIDENCE OUTSIDE OF THE RECORD WOULD HAVE BEEN USEFUL IN RESOLVING THE CLAIM (DA135) CONTRARY TO THE CONSTITUTION OF THE UNITED STATES AND THE LAWS OF NEW JERSEY.

Point II

THE PCR JUDGE ERRED WHEN IT DETERMINED THAT APPELLANT FAILED TO PRESENT EVIDENCE TO ESTABLISH A PRIMA FACIE CLAIM THUS NEGATING APPELLANT'S REQUEST FOR AN EVIDENTIARY HEARING CONTRARY TO THE CONSTITUTION OF THE UNITED STATES AND THE LAWS OF NEW JERSEY.

Point III

THE PCR JUDGE ERRED IN HIS RULING THAT APPELLANT WOULD NOT HAVE TAKEN THE PLEA EVEN HAD HE KNOWN THAT AMY CURRAN WAS NOT GOING TO TESTIFY AT HIS TRIAL.

After reviewing the record, we find no merit in any of those contentions, R. 2:11-3(e)(2), and as previously noted, we affirm for the reasons stated by Judge DeLury. We add the following comment.

Unlike State v. Jones, 219 N.J. 298, 301-02 (2014), where an evidentiary hearing was required to determine why defense counsel failed to call an alibi witness, in this case trial counsel fully explained his strategic reasons for deciding not to present Curran as a witness. Instead, counsel presented an alibi witness, and co-defendant Hayes gave testimony which, if believed, would have completely exculpated defendant without placing defendant at the crime scene. We find no basis to conclude that defendant's trial attorney rendered ineffective legal representation. We also find no error in Judge DeLury's decision to reject the PCR petition without an evidentiary hearing, because defendant failed to present a prima facie case of ineffective assistance. See State v. Preciose, 129 N.J. 451, 463-64 (1992).

Affirmed.

1 We affirmed the sentence after remand, on an Excessive Sentencing calendar. State v. Murphy, A-2378-12 (App. Div. April 10, 2013).