STATE OF NEW JERSEY VS. TAHIR T. SUTTON (13-09-0422, WARREN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3660-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAHIR T. SUTTON,
Defendant-Appellant.
________________________
Submitted December 2, 2021 – Decided December 10, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 13-09-0422.
Joseph E. Krakora, Public Defender, attorney for
appellant (John J. Bannan, Designated Counsel, on the
brief).
James L. Pfeiffer, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Tahir T. Sutton appeals from the January 21, 2020 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We set forth the following pertinent facts of this matter in our prior
opinion on defendant's and co-defendant Dionte Powell's direct appeals of their
convictions and sentences:
In the early morning hours of March 15, 2013,
two men wearing dark clothing, hoodies, masks, and
gloves entered the employee breakroom of a
convenience store gas station. Both were carrying
handguns and one held a backpack. Once inside, the
men encountered two employees and demanded money.
The two men took approximately $1[,]000 from the
employees and some cigarettes and cigar packages from
the store shelves. As the men ran from the store, one
of them dropped his gun and a piece of it broke off
when it hit the floor. The man retrieved the gun, but
left the broken piece behind.
Approximately forty minutes later, a patrol
officer using a radar device observed a car traveling
over the speed limit. The officer activated his overhead
lights and siren, but the driver of the car refused to stop.
The officer pursued the vehicle until it crashed into a
telephone pole. Four occupants got out of the car and
all but one ran away. The officer was able to detain a
female passenger. The officer saw that the rear window
of the car was broken, there was a small sledgehammer
on the backseat, and the ignition had been broken with
a screwdriver. The officer also observed a backpack on
the rear floor of the car.
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At the police station, the female passenger
identified Powell as the driver of the car and Sutton as
one of the passengers. She told the police that she
called Powell to ask for a ride to her mother's house.
Shortly after she got into the car, the police chase
began.
The police located the registered owner of the
car, who gave his written consent to a police search of
the vehicle and all of its contents, including "[a]ny and
all containers found therein." Inside the backpack, the
police found two handguns, packages of cigars and
cigarettes, two ski masks, and other clothing. One of
the guns was broken and the piece found at the store fit
the missing part of the gun. Sutton's thumb print was
found on the exterior of the car. DNA found on one of
the ski masks matched Sutton, and DNA on the other
mask matched Powell. DNA on cigarette butts found
in the car also matched Sutton.
The police set up a surveillance outside the
female passenger's home. At approximately 6:00 a.m.,
the police saw Powell and Sutton walking down the
street. Their physical characteristics and clothing
matched the robbery suspects. The police arrested
defendants. A search incident to that arrest disclosed
that each defendant was carrying approximately $500.
[State v. Sutton, Nos. A-5597-14 and A-0414-15 (App.
Div. Sep. 22, 2017) (slip op. at 1-3), certif. denied, 232
N.J. 394 (2018).]
Based on these facts, a Warren County grand jury charged defendant and
Powell with:
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second-degree conspiracy to commit robbery, N.J.S.A.
2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1) (count one);
second-degree burglary, N.J.S.A. 2C:18-2(b) (count
two); first-degree robbery, N.J.S.A. 2C:15-1(a)(1)
(count three); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count
four); third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count five); third-degree theft of
an automobile, N.J.S.A. 2C:20-3 (count six); fourth-
degree resisting arrest, N.J.S.A. 2C:29-2(a) (count
eight); and fourth-degree obstructing administration of
law or other governmental function, N.J.S.A. 2C:29-1
(count nine). The indictment also separately charged
Powell with second-degree eluding, N.J.S.A. 2C:29-
2(b) (count seven).
[Id. at 3-4.]
On the first day of trial, Powell's attorney made an oral application to
sever the trial and try each defendant separately pursuant to Bruton v. United
States, 391 U.S. 123 (1968) (holding the Sixth Amendment right to confront
witnesses precluded a court from admitting into evidence a co-defendant's out-
of-court statement implicating the defendant in the crime at a joint trial).
Defendant's attorney joined in Powell's motion.
The law governing a severance motion is clear. "Two or more defendants
may be tried jointly 'if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense
or offenses.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (Brown I) (quoting
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R. 3:7-7). Courts generally prefer to try co-defendants jointly, "particularly
when 'much of the same evidence is needed to prosecute each defendant.'" Id.
at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990) (Brown II)). "That
preference is guided by a need for judicial efficiency, to accommodate witnesses
and victims, to avoid inconsistent verdicts, and to facilitate a more accurate
assessment of relative culpability." Ibid.A single joint trial, however, may not take place at the expense of a
defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996).
When considering a motion for severance, a trial court should "balance the
potential prejudice to defendant's due process rights against the State's interest
in judicial efficiency." Brown II, 118 N.J. at 605 (quoting State v. Coleman, 46
N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance.
Brown I, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a
motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does
not have the right to severance simply because he or she believes a separate trial
"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J.
Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super.
225, 231 (App. Div. 1975)).
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Here, Powell's attorney stated he discussed the case with defendant's
counsel the day before and learned that defendant's attorney planned to concede
in his opening statement that defendant had been in the car at some point prior
to the robbery and subsequent pursuit. Powell's attorney argued that defendant's
position conflicted with his client's defense that he had never been in the car and
was not involved in either the robbery or the car chase. In response, defendant's
attorney stated his defense strategy "could be" antagonistic to Powell's position.
However, defendant's attorney also made clear defendant would not assert that
Powell was involved in the robbery or present in the car.
After considering the parties' arguments, the trial judge denied defendants'
severance motion. The judge concluded that Bruton did not apply because
defendant had not made an out-of-court statement implicating Powell in any of
the offenses. In addition, the judge found that defendant's and Powell's defenses
were not "so antagonistic, mutually exclusive or irreconcilable as to require
severance." Both defendants planned to argue they were not present during the
robbery or the eluding incident that followed, and neither planned to implicate
the other in any of the offenses.
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Following the joint trial, the jury convicted defendant and Powell of the
charges set forth in the indictment. Sutton, (slip op. at 4). The judge then
sentenced defendant to an aggregate fifteen-year prison term. 1 Id. at 5.
Defendant and Powell each appealed their convictions and sentences.
Ibid. We consolidated these appeals for purposes of issuing a single opinion.
Id. at 1. Neither defendant challenged the trial court's denial of their severance
motion. Id. at 5-7. For the reasons set forth in our opinion, we affirmed
defendant and Powell's convictions for counts one through six, reversed
defendant's convictions under counts eight and nine and Powell's convictions for
counts seven, eight, and nine, and remanded the matter to the trial court for
correction of the judgments of conviction. Id. at 7-14. On the remand, the trial
court granted the State's motion to dismiss counts eight and nine of the
indictment against defendant.
Defendant filed a timely PCR petition. In his brief, defendant argued that
defendant's "[t]rial counsel [d]id not [e]ffectively [a]rgue for [s]everance" and
his "[a]ppellate [c]ounsel was ineffective for [n]ot [r]aising this [s]everance
[i]ssue on [a]ppeal." Defendant asserted his trial attorney "did not cite any case
law" in support of the motion and "did [not] explain in detail exactly how
1
The judge sentenced Powell to an eighteen-year term. Id. at 4-5.
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prejudicial a joint trial would be for [defendant]." Defendant also alleged his
appellate attorney should have challenged the judge's denial of the motion "since
there was a good pre-trial record devoted to this [issue]."
After conducting oral argument, Judge John H. Pursel rejected each of
these contentions in an oral decision. The judge concluded defendant failed to
satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687
(1984), which requires a showing that trial counsel's performance was deficient
and that, but for the deficient performance, the result would have been different.
Judge Pursel found there was simply no legal basis for the Bruton
severance motion because neither defendant nor Powell made an out-of-court
statement implicating the other in any of the offenses, and their defenses were
therefore not antagonistic or mutually exclusive. Thus, regardless of the length
or comprehensiveness of defendant's trial attorney argument on the motion, he
would not have succeeded.
For similar reasons, Judge Pursel ruled that defendant's appellate attorney
properly exercised her discretion in choosing not to challenge the trial judge's
denial of the severance motion in her appellate brief. The judge noted that the
attorney was successful in securing the dismissal of two of the convictions and
identifying mistakes in the judgments of conviction that needed to be corrected.
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Therefore, the judge found that defendant's appellate counsel did not perform
ineffectively in connection with defendant's appeal. 2
On appeal, defendant raises the same contentions he unsuccessfully
presented before Judge Pursel. He asserts:
POINT I
BECAUSE [DEFENDANT] RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR PCR.
(A) Legal Standards Governing Applications For
[PCR].
(B) Trial and Appellate Counsel were Ineffective For
Failing to Appropriately Argue for a Severance
of the Trial.
POINT II
IN THE ALTERNATIVE, BECAUSE THERE ARE
GENUINE ISSUES OF MATERIAL FACT IN
DISPUTE, THE PCR COURT ERRED IN DENYING
AN EVIDENTIARY HEARING.
(A) Legal Standards Governing [PCR] Evidentiary
Hearings.
2
Powell also filed a PCR petition and argued his appellate attorney was
ineffective because he did not challenge the denial of the severance motion.
State v. Powell, Docket No. A-2163-19 (App. Div. Mar. 31, 2021) (slip op. at
10-11). The trial court denied the petition and another panel of this court
affirmed that determination. Id. at 14-18.
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(B) In the Alternative, [defendant] is Entitled to an
Evidentiary Hearing.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution o f the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
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performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that counsel "rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific
errors of counsel undermined the reliability" of the proceeding. United States
v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Where, as here, a defendant asserts his attorney was ineffective by failing
to file a motion, he must establish that the motion would have been successful.
"It is not ineffective assistance of counsel for defense counsel not to file a
meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007).
In addition, an appellate attorney is not ineffective for failing to raise
every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div.
2007). Instead, appellate counsel is afforded the discretion to construct and
present what he or she deems are the most effective arguments in support of the
client's position. Ibid.Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
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for the reasons detailed at length in Judge Pursel's oral opinion. We discern no
abuse of discretion in the judge's consideration of the issues, or in his decision
to deny the petition without an evidentiary hearing. We are satisfied that the
trial and appellate attorneys' performances were not deficient, and defendant
provided nothing more than bald assertions to the contrary. 3
Affirmed.
3
In his PCR petition, defendant asserted his "jury was tampered with" because
"[p]eople in the hallways were asking jurors" whether defendant and Powell
were guilty. Defendant also stated his trial attorney "failed to ask questions [he]
instructed him to during trial that would have proven [his] innocence."
Defendant did not repeat these allegations in the brief his assigned counsel filed
prior to oral argument before Judge Pursel and the judge did not address these
complaints in his oral decision. Defendant now asserts that the matter should
be remanded to permit the judge to consider these contentions. We disagree.
First, defendant waived these contentions by omitting them from his counseled
brief. In any event, we considered defendant's argument about the alleged jury
tampering in our opinion on defendant's direct appeal and concluded it lacked
"sufficient merit . . . to warrant discussion in a written opinion." Sutton, (slip
op. at 6-7). In addition, defendant's certification in support of his petition does
not provide any details concerning the nature of the questions he presented to
his attorney at the trial. Thus, defendant's argument on this point was
unsupported by cognizable evidence and was a classic "bald assertion" that did
not warrant consideration. Cummings, 321 N.J. Super. at 170.
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