STATE OF NEW JERSEY VS. TYRONE HOWARD

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

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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.

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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.

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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)).

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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

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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).

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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

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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.

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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.