STATE OF NEW JERSEY v. TYRONE HOWARD

NOT FOR PUBLICATION WITHOUT THE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.

TYRONE HOWARD,

Defendant-Appellant.

Before Judges Hoffman and Leone.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 13-14, Complaint No. W-2009-211-0338.

Alan Dexter Bowman argued the cause for appellant.

JenniferB. Paszkiewicz,Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).

PER CURIAM

Defendant Tyrone Howard appeals from an August 24, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

We derive the salient facts from the trial record. On March 26, 2009, defendant gave a sworn statement to the Westhampton Township Police Department following an incident with his estranged wife at their daughter's school. In his statement, defendant claimed that he was crossing a driveway outside the school with their daughter when his wife came within inches of striking them with her car. However, video footage from the school showed that his wife was not even in her car when defendant and their daughter were crossing the driveway, and that her vehicle never came dangerously-close to them. As described by the Law Division judge

The motor vehicle was stopped in fact, parked. Mrs. Howard wasn't even in it. She had exited her vehicle at the time that the defendant and [their] daughter [were] walking out of the school and crossing the driveway. There was no operation of the motor vehicle at all seen at that time. Nothing in the facts leads to any support for the defendant's allegations that Mrs. Howard threatened him with her car.

On appeal, defendant does not seriously dispute that the version of events depicted by his sworn statement was objectively inaccurate.

On August 31, 2009, a Burlington County grand jury indicted defendant on one count of fourth-degree false incrimination, N.J.S.A. 2C:28-4(a), which was later reduced to the disorderly-persons offense of filing a fictitious report, N.J.S.A. 2C:28-4(b)(1). As part of his defense, defendant claimed that he suffered from a diminished mental capacity which caused him to mistakenly believe his wife had driven close to him, so he did not know the report he filed was false. Following a two-day bench trial, defendant was convicted, subjecting him to forfeiture of his public employment as an investigator with the Essex County Prosecutor's Office. See N.J.S.A. 2C:51-2(a)(1). Defendant applied for a waiver of forfeiture, but the Burlington County Prosecutor denied the application, and the municipal court judge confirmed that the prosecutor did not abuse his discretion in doing so.

Defendant filed a notice of appeal in the Law Division, but ultimately withdrew the appeal and filed a PCR petition in municipal court. In his petition, defendant asserted ineffective assistance of trial counsel based on his attorney's failure to produce experts to support his defense of diminished mental capacity. Attached to his petition were psychological evaluations from a psychotherapist, Dr. Godfied K. Baning, and a psychologist, Dr. Paul M. Brala, indicating that defendant suffered from post-traumatic stress disorder (PTSD) as a result of a traumatic event in his childhood, when his mother struck and killed his father with her car.

Dr. Baning's report addressed defendant's mental condition and how it affected his perception of the incident with his wife. Dr. Baning explained

What happened to [defendant] in thinking his wife was going to kill him, has valid psychological explanation. . . . PTSD has periodic times in a person's life where intense stressful situation[s] make him/her think and act as if the traumatic episode was really happen[ing] to them at that time. This explains why Vietnam War Veterans continue to duck when a plane is flying by, some are not even able to fly because of the traumatic war events.

Notably, Dr. Baning did not offer an opinion regarding defendant's mental state at the time he issued his sworn statement to police.

Dr. Brala's report opined that defendant's mental condition caused a "temporarily diminished capacity" which "affected his behavior during and immediately after" the incident and "led him to overreact on the day in question." Dr. Brala concluded that defendant's "reportedly inaccurate estimation of the distance between [his wife's] car and himself was unintentional and directly caused by his diminished ability to read the situation accurately and function accordingly." Notably, before reaching this conclusion, Dr. Brala did not review defendant's statement to police, nor did he review the video footage from the school at the time of the altercation.

The same municipal court judge who presided over defendant's trial heard the PCR petition, and ultimately denied the petition. Defendant filed a notice of de novo appeal and, on August 21, 2014, Law Division Judge Thomas P. Kelly denied the petition without an evidentiary hearing. The judge made the following findings with regard to prejudice in the context of the Strickland1 standard

I find that if they had testified, Dr. Brala and [Dr.] Baning would not have impacted the outcome of this case. They would have been faced with a very difficult task of explaining what was on that video. I'm sure the State would have presented it and cross-examined based upon it. As I said, neither indicated in their reports . . . that they had reviewed it [or] were in any way familiar with it. They had apparently only reviewed information obtained from the defendant himself and I think [the video] would have impacted the value of their testimony in a significant way.

Defendant filed this appeal on November 18, 2014, raising the following arguments for our consideration

Point I

Appellant Was Denied Effective Assistance of Counsel And The Adjudication of Guilt Must Be Set Aside.

Point II

The Experts' Reports Constituted A Prima Facie Case Requiring An Evidentiary Hearing.

II.

To establish ineffective assistance of counsel, a petitioner for PCR must prove that: (1) trial counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

With regards to the first prong, a petitioner must prove his attorney made errors that were so egregious that the attorney was not functioning as "counsel," as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Although mistaken legal advice can effectively deprive defendants of their right to counsel, strategic decisions are "virtually unchallengeable" at the PCR level. See State v. Nash, 212 N.J. 518, 542 (2013). One strategic decision that is almost entirely insulated from a PCR challenge is the decision whether or not to call a witness at trial. Our review of such a decision is "highly deferential." State v. Arthur, 184 N.J. 307, 321 (2005) (citation omitted). A defendant in a PCR petition "must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. 2065, 80 L. Ed. 2d at 694-95).

With regards to the second prong, a petitioner must prove that he suffered prejudice due to his counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In this context, "prejudice" means a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). When determining whether a petitioner has demonstrated the need for an evidentiary hearing, "the PCR court should view the facts in the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citation omitted). However, the petitioner "must allege specific facts and evidence supporting his allegations," Porter, supra, 216 N.J. at 355; "bald assertions" of ineffective assistance are insufficient. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Having reviewed the record in its entirety, we affirm Judge Kelly's finding that defendant failed to meet the second prong of the Strickland test.

Defendant argues that the result of his trial would have been different, and he would not have been convicted, if his attorney had presented expert testimony during trial to support his diminished-capacity defense. To support this contention, defendant relies on two psychological reports, which conclude that he was unable to accurately perceive and describe the events that transpired at his daughter's school. We conclude, however, that these expert reports would not have changed the outcome of defendant's trial.

As explained by the Law Division judge, the expert reports are deficient in a few key respects. Dr. Baning's letter report does not opine about defendant's state of mind at the time he filed the false report. Rather, the scope of the report is limited to defendant's state of mind immediately after seeing his wife's car pull in to the school parking lot. Dr. Baning fails to address whether defendant's disorientation could have been sustained beyond the incident at his daughter's school, for the hour during which defendant bantered with the responding officers, drove to WTPD headquarters, and issued a sworn statement. The material issue in this case is whether defendant knew, at the time he filed the report, that his version of events was untrue. Dr. Baning's report does not speak to this issue, and thus does not support defendant's petition. See State v. Russo, 243 N.J. Super. 383, 394 96 (App. Div. 1990) (confirming that an expert opinion did not support a diminished-capacity defense because, among other reasons, it "declined to express any opinion at all as to defendant's state of mind on the day of the crime" (citing State v. Pitts, 116 N.J. 580, 607 10 (1989)), certif. denied, 126 N.J. 322 (1991).

Even more troubling, neither expert viewed the video footage of the incident. The video footage was the most important evidence produced at trial; it provided the only non-biased depiction of the altercation between defendant and his wife. Without considering this crucial piece of evidence, both experts were left to rely on defendant's version of events when developing their opinions.2 An opinion is no stronger than the facts on which it rests. State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Indeed, because defendant's experts were not presented with relevant evidence from the trial record, their opinions would be barred as net opinions. See N.J.R.E. 703; State v. Townsend, 186 N.J. 473, 494-95 (2006).

Defendant's counsel stated at argument before us that defendant would simply rely on the opinions in the reports at any evidentiary hearing. Absent any admissible expert opinion that defendant lacked the capacity at least an hour after the incident to distinguish the distance shown in the video from coming within inches of him, he has not produced sufficient competent evidence to support his petition for PCR. See generally State v. Chew, 179 N.J. 186, 215 20 (2004); State v. Savage, 120 N.J. 594, 618 19 (1990); State v. Breakiron, 108 N.J. 591, 619 (1987). Defendant has not shown a "reasonable probability" that the outcome of his trial would have been different if his attorney had produced experts. Fritz, supra, 105 N.J. at 58.

We decline to remand this case for an evidentiary hearing, because defendant failed to make a prima facie showing of ineffective assistance of counsel. See Cummings, supra, 321 N.J. Super. at 170.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

2 Considering that this case involves defendant's commission of a crime of dishonesty, we discern no reason why his version of events, as conveyed to these psychological experts, should be permitted to form the sole factual basis for their reports, particularly where video evidence of the incident was available.