Date: 06-22-2016

Case Style: STATE OF NEW JERSEY VS. TYRONE HOWARD

Case Number: A-1713-14T1

Judge: George S. Leone

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Jennifer B. Paszkiewicz, Assistant Prosecutor

Defendant's Attorney: Alan Dexter Bowman

Description: 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
A-1713-14T1 3
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.
A-1713-14T1 4
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.
A-1713-14T1 5
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 crossexamined 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. 1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
A-1713-14T1 6
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
A-1713-14T1 7
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).
A-1713-14T1 8
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
A-1713-14T1 9
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
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.
A-1713-14T1 10
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.

Outcome: We decline to remand this case for an evidentiary hearing,
because defendant failed to make a prima facie showing of
ineffective assistance of counsel.

Plaintiff's Experts:

Defendant's Experts:

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