July 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAHIEM HOWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Ind. No. 05-05-00286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 19, 2012
Before Judges Axelrad and Parrillo.
Defendant Tahiem Howell appeals from an April 12, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) following an evidentiary hearing. He had unsuccessfully argued, and reasserts on appeal, that trial counsel was ineffective and had a clear conflict of interest in representing both him and a key prosecution witness on charges arising out of the same incident, and appellate counsel was ineffective in failing to raise all appropriate issues. We affirm.
On May 10, 2005, a Cape May County Grand Jury returned Indictment No. 05-05-00286, charging defendant and co-defendants, Sharod Thomas, Joel Gonzalez, and Daniel Edros, with attempted murder and various weapons offenses. Defendant was convicted of second-degree aggravated assault as a lesser-included offense of attempted murder, second-degree possession of a handgun for an unlawful purpose, and third-degree unlawful possession of a handgun. He was also convicted in a bifurcated non-jury trial of the second-degree offense of being a certain person who cannot possess a firearm. On June 16, 2006, the court sentenced defendant to a seven-year custodial term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the aggravated assault conviction with the other convictions running concurrently, and imposed appropriate fines and penalties.
The charges stemmed from a shoot-out akin to the "Wild West," spanning several blocks in the City of Wildwood, during the early morning hours of October 24, 2004. Defendant and his friends, co-defendants Thomas and Gonzalez shot at and wounded co-defendant Edros in his right shoulder. According to the State, Edros exchanged gunfire and wounded defendant and Gonzalez. The following witnesses testified for the State: Keisha Jones, a friend of defendant, Thomas and Gonzalez; Edros; Sharonda Simmons, Edros' girlfriend; April Robinson, an occupant of the apartment where Edros went after he was shot; Wildwood Police Officer Gary O'Shea; Detective Robert Harkins of the Cape May County Prosecutor's Office; and Detective Sergeant William Wheatley of the New Jersey State Police Ballistics Unit. Defendant did not testify and presented no witnesses on his behalf.
Defendant appealed, and in a per curiam opinion we affirmed his conviction and sentence. State v. Howell, No. A-2984-06 (App. Div. Mar. 9, 2009). The Supreme Court denied certification. State v. Howell, 199 N.J. 516 (2009).
In July 2009, defendant filed a pro se PCR petition, supplemented with a brief by counsel, alleging ineffective assistance of trial counsel in: (1) operating under a conflict of interest by having also represented Jones, a primary State's witness, in her bail hearing, and failing to aggressively cross-examine her; (2) failing to fully investigate the evidence from Edros' statements in his plea sentencing transcripts and fully investigate whether Rodolfo Jordan participated in the gun battle with Edros or whether an unnamed narcotics trafficker owned some of the weapons found in the area of the shooting; (3) failing to object, request a curative instruction, or move for a mistrial when Detective Harkins testified as to the recovery and path of two .44 caliber slugs recovered at 128 East Davis Street; and (4) in failing to file a motion for a new trial on the aggravated assault and weapons charges. Defendant also argued ineffective assistance of appellate counsel in failing to challenge the charge of possession of a weapon by a felon. According to defendant, appellate counsel should have renewed on appeal his defense at trial, which was that constructive possession of a weapon was insufficient for liability for that offense.
Judge Kyran Connor conducted an evidentiary hearing on March 22, 2010, in which defendant testified, as did his trial counsel, Steven Patrick, and the First Assistant Prosecutor of Cape May County, David Meyer, who tried the case for the State. Both Patrick and Meyer testified extensively regarding the conflict issue. Referring to a November 18, 2004 transcript of a bail hearing, Patrick testified that he made a perfunctory appearance on Jones' behalf as a pool attorney. He did not know anything about the case or charges, did not have a file, did not have any discovery, and there was no need to do any research on the case. The bail hearing on the charges was uncontested and consisted of Meyer initially representing that the $5000 cash bail should be converted to a ten percent bail, with Patrick responding, "that didn't leave me much to say." Shortly afterwards Jones made bail.
In early June 2005, Patrick received defendant's file from the Public Defender's Office after another attorney returned the file. Patrick promptly contacted Meyer and informed him he could not represent defendant if the State were going to pursue charges against Jones. Meyer assured Patrick the State was unlikely to indict Jones and the matter was probably going to be dismissed; Patrick relied on Meyer's representation. The charges were administratively dismissed against Jones in December 2005, and Patrick closed his file and sent a nominal bill to the Public Defender's Office on March 5, 2006. Meyer testified unequivocally that he did not offer Jones anything in exchange for her testimony at defendant's trial. Defendant testified he was not aware that Patrick had been representing Jones until after conclusion of his trial.
Judge Connor denied defendant's PCR petition at the conclusion of the hearing, memorialized in an order of April 12, 2010. He was not convinced defendant had established a conflict of interest or deficient cross-examination based on Patrick's prior representation of Jones to warrant a reversal of defendant's conviction. The judge recited the above testimony and noted the next conversation between the Prosecutor's Office and Jones did not occur until March 29, 2006, when Meyer interviewed her right before trial. The judge found the cases defendant relied on, State v. Bellucci, 81 N.J. 531 (l980) and State v. Sanders, 260 N.J. Super. 491 (App. Div. l992), to be inapposite.
The judge noted that in Bellucci, where the Court reversed the defendant's conviction based on the potential for a conflict of interest by defense counsel, the attorney who represented the defendant in his prosecution for several gambling offenses also represented two co-defendants up until they entered guilty pleas, supra, 81 N.J. at 535, and then "worked with one hand tied behind his back because of his divided loyalties." Here, however, Jones was not indicted, was not a co-defendant, and no one alleged she was a participant in the shooting.
In Sanders, we reversed a defendant's conviction where, "[o]ver defendant's vigorous objection, the attorney who represented him in prior bail proceedings was permitted to defend his co[-]defendant at their joint trial where their defenses were mutually antagonistic." Supra, 260 N.J. Super. at 493. As explained by Judge Connor, in the present case it was Jones, not defendant, who Patrick represented at the bail hearing, she was never a major player in the underlying crime, Patrick and she shared no confidential information, and Patrick never saw or spoke to her from the time of the bail hearing until she testified as a State's witness at trial over a year and one-half later.
The judge also noted the differences between Jones' initial recorded statement to police and her trial testimony, and concluded defense counsel was "prudent to limit his aggression and  probably smart to leave [it] well enough alone." Jones initially told the police she was walking with defendant, Thomas and Gonzales after having left the nightclub when they heard gunshots, and by the time they ran to the van, defendant and Gonzalez had been shot.
At trial, Jones recanted the statement, claiming she told the police this "story" just to satisfy them and had simply repeated what she had heard Gonzalez tell the other officer at the hospital. Jones testified about her close relationship with the three men. She said she saw them together the night before the shooting, but she was at home and was not present at the time of the shooting. According to Jones, in response to a call from her boyfriend advising that defendant and Gonzalez had been shot and were at the hospital, she reached Thomas on his cell phone and was informed that he had just dropped defendant and Gonzalez off at the hospital. She claimed Thomas then picked her up in the van and brought her to the hospital.
Judge Connor found the line of questioning defendant suggested Patrick should have pursued with Detective Harkins regarding the typical location of a gun stash would not have "been gotten by without a vigorous objection from Mr. Meyer, which [he thought] would be arguably pretty meritorious" and, overall, would not have been "terribly productive." The judge was also satisfied that Patrick had made a discretionary decision not to move for a new trial after analyzing the facts in light of the standard of review and case law. See R. 3:20-l. The judge noted that if we had felt there was a miscarriage of justice, we could have reached the issue on direct appeal. See State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).
The judge also addressed and rejected the balance of defendant's arguments of ineffective assistance of trial and appellate counsel. He ultimately concluded that although PCR counsel was "thorough" and "diligent" in his assertion of claims on defendant's behalf, none of defendant's arguments had merit. This appeal ensued.
On appeal, defendant argues:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IN THE COURT BELOW.
A. TRIAL COUNSEL OPERATED UNDER A CONFLICT OF INTEREST.
B. TRIAL COUNSEL CONDUCTED INSUFFICIENT PRETRIAL INVESTIGATION.
C. TRIAL COUNSEL WAS INEFFECTIVE DURING TRIAL.
D. INEFFECTIVENESS AT SENTENCING.
E. APPELLATE COUNSEL ON DIRECT APPEAL WAS DEFICIENT.
Based on our review of the record and applicable law, we are satisfied that none of defendant's arguments have merit and were more than amply addressed and rejected by Judge Connor. We affirm substantially for the reasons articulated in his comprehensive oral opinion following the evidentiary hearing without the need for additional discussion. R. 2:11-3(e)(2). We add the following brief comments.
None of the issues raised by defendant are sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (l984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced the defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey). In many respects, defendant's claims of insufficient pretrial preparation are nothing more than bare allegations, which are insufficient to support a PCR application. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (l999). Moreover, we "will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.), certif. denied, 181 N.J. 546 (2004).
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