STATE OF NEW JERSEY VS. ROGER HOWARD (13-07-1891, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4490-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER HOWARD,
Defendant-Appellant.
_______________________
Submitted November 9, 2020 – Decided December 11, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 13-07-1891.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Lafferty, IV, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Roger Howard appeals the March 19, 2019 Law Division order
denying his petition for post-trial conviction relief (PCR) without an evidentiary
hearing. For reasons that follow, we vacate a portion of the order and remand
on two issues: 1) for an evidentiary hearing on whether counsel provided
ineffective assistance of counsel by not questioning witnesses about a segment
of surveillance videotape, and 2) for the PCR court to address defendant's
ineffective assistance of counsel claims raised in his February 19, 2019 pro se
supplement to the amended PCR petition. We affirm the March 19, 2019 order
on all other issues.
I.
We glean the facts from our prior opinion. See State v. Howard, No. A-
5705-13 (App. Div. Mar. 1, 2017).
In October 2012, cousins A.T. and Q.D. were walking
on New York Avenue in Atlantic City with three other
friends on their way to Q.D.'s house a few blocks away.
The group stopped at a convenience store called "501"
and went in. While in the store, A.T. was approached
by a person dressed in a dark-colored hoodie with a
mask of some type pulled down around his neck, and
asked A.T., who was wearing "Obsidian Jordan 12"
sneakers, about the size of his shoes. A.T., who wore a
size thirteen sneaker, said the sneakers were size eight.
After that person left the store, A.T. peeked outside to
see if the person was gone and, being satisfied, the
group left.
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Once outside, they proceeded toward Q.D.'s house, but
three members of the group crossed to the other side of
the street, leaving A.T. and Q.D. together. Shortly
thereafter, A.T. and Q.D. were accosted from the
shadows of a dark alleyway by an individual holding a
gun in his hand and wearing a mask. After instructing
A.T. to go into the alleyway, the assailant addressed
Q.D. with his childhood name, and told Q.D. that he
could leave. When A.T. would not go into the alley and
started to back away from the assailant, and Q.D. would
not leave his cousin, the assailant told them to run and
as A.T. and Q.D. did so, the assailant started shooting.
One bullet struck A.T. in the left leg and a second shot
stuck him in the right leg, breaking his femur and
incapacitating him. The assailant shot Q.D. in the leg
as well, but Q.D. was able to continue running for a
short distance. With A.T. incapacitated, the assailant
approached him, laid the gun down between A.T.'s legs,
took his sneakers, rifled through his pockets and then
left with the gun.
Ten shell casings were found by the police in three
different locations at the scene of the attack. A
surveillance video from the convenience store showed
the exchange between A.T. and the suspect, although
there was no audio.
A.T. and Q.D. told the police, both at the scene and
again at the hospital, that they could not identify who
shot them. It was not until later when a second photo
array was shown to A.T. that he identified defendant as
the shooter. Q.D. testified that defendant came to his
home several days after the shooting and denied that he
was the shooter, apparently to counter word on the
street to the contrary. Although Q.D. would not
initially identify defendant as his attacker, he ultimately
did so based on a photo array. Both victims were
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familiar with defendant. A.T. went to high school with
him and Q.D. played football with him when they were
younger. The victims both expressed they were
initially fearful of identifying their assailant.
[Id., slip op. at 2-4.]
Defendant was indicted in 2013 on charges including: first-degree
attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2) (counts one
and two); first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts five and six);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count
seven), second-degree possession of a weapon for unlawful purposes, N.J.S.A.
2C:39-4(a) (counts eight and nine); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7) (counts ten and eleven), fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4) (counts twelve and thirteen), and fourth-degree
possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count
fourteen). Counts four and nine were dismissed before trial. Defendant was
convicted of the remaining counts. His motion for a new trial was denied.
Defendant was sentenced to a nineteen-year term under count one subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive
eighteen-year term under count two subject to NERA and a consecutive
eighteen-month term under count fourteen. The remaining counts were merged.
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We affirmed his convictions and sentence. Id. (slip op. at 2). The New
Jersey Supreme Court denied certification. State v. Howard, 230 N.J. 551
(2017).
Defendant filed a PCR petition on March 12, 2018 contending ineffective
assistance of his trial counsel for not conducting a pre-trial investigation about
A.T.'s knowledge of firearms. Assigned counsel filed an amended petition in
December 2018 raising multiple issues of ineffective assistance. The amended
petition alleged that defendant's trial attorney was ineffective for not advising
him to take a twelve-year plea offer, and for not discussing the strengths and
weaknesses of his case or his maximum sentence exposure. Defendant rejected
the plea offer but now claims he would have taken it. His mother and father
certified that defendant was willing to accept the offer.
Defendant claimed his trial counsel failed to speak with 501 store
employees who saw him go into the store later that night wearing a blue, green
and white sweatshirt and hat, not a dark colored hoodie with a Champion logo.
His counsel did not ask defense witnesses about the portion of the surveillance
video that showed this or ask to have that part of the tape introduced as evidence.
The amended PCR petition alleged that defendant's youth should have
been considered at sentencing, that defense counsel's questioning violated State
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v. Bankston, 63 N.J. 263 (1973), that he did not investigate the criminal history
of the lead detective and was ineffective at sentencing. Appellate counsel did
not raise an issue about prosecutorial misconduct. Defendant requested an
evidentiary hearing. He also submitted an unsigned and undated certification in
support of the amended PCR where he "retract[ed] any claims of innocence."
On February 19, 2019, defendant filed a "Supplemental Addendum in
Support of P.C.R. Petition" raising that the trial court erred by not charging
aggravated assault with a weapon as a lesser included offense and that his trial
counsel was ineffective by not objecting to the term "and/or" in the jury charge
and verdict sheet.
The PCR court denied the petition. The court noted defendant did not
provide support for his claim that counsel did not adequately discuss the
strengths and weaknesses of his case or counsel him adequately about the plea
offer. Defendant was not prejudiced by this because he maintained that he was
innocent of the charges. The PCR court rejected defendant's claim under
Bankston because it should have been raised in the direct appeal and because
the detective's testimony was not improper. The PCR court found the
surveillance film likely was not introduced as evidence due to trial strategy and
that did not prejudice defendant. Information about the detective's criminal
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history was based on an article published four years after defendant's trial and
was not relevant to counsel's performance during trial. The PCR court rejected
defendant's claim that appellate counsel should have raised issues about
prosecutorial misconduct. The court found that defendant's claims about his
sentence were barred under Rule 3:22-5 because both his conviction and
sentence had been affirmed. Howard, slip op. at 2. Defendant was not a juvenile
when these offenses were committed, making the cases cited regarding juvenile
offenders inapplicable. The PCR court denied defendant's request for an
evidentiary hearing because he had not shown a prima facie case for PCR relief.
On appeal, defendant's counsel raises these arguments:
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION WITHOUT AN
EVIDENTIARY HEARING WHERE IT BASED ITS
DECISION SOLELY ON DEFENDANT'S
REPEATED DECLARATIONS OF INNOCENCE
AND WHERE IT DID NOT MAKE ANY FACTUAL
FINDINGS INVOLVING THE ATTORNEY-CLIENT
DISCUSSIONS ABOUT THE STRENGTHS AND
WEAKNESSES OF THE CASE.
A. The performance of defendant's trial attorney was
deficient where he did not review with defendant the
strengths and weaknesses of the case before defendant
rejected the formal plea offer.
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B. But for the failure of defendant's trial attorney to
explain to defendant the strengths and weaknesses of
the facts of his case, defendant was prejudiced because
he would not have rejected the State's plea offer.
C. The PCR court erred where it found that
defendant did not establish a prima facie case which
warranted an evidentiary hearing.
POINT TWO
THE PCR COURT ERRED WHERE ITS REJECTION
OF DEFENDANT'S CLAIM THAT HIS TRIAL
ATTORNEY'S FAILURE TO INTRODUCE INTO
EVIDENCE PERTINENT VIDEO FOOTAGE WAS
BASED ON PURE SPECULATION THAT THE
ATTORNEY'S DECISION WAS STRATEGIC.
POINT THREE
THE PCR COURT'S DENIAL OF DEFENDANT'S
PETITION SHOULD BE REVERSED IN ORDER TO
CONDUCT AN EVIDENTIARY HEARING ON HIS
APPELLATE COUNSEL'S DECISION TO NOT
ADDRESS THE PROSECUTORIAL MISCONDUCT
DURING CLOSING ARGUMENT INVOLVING
INFERENCES ABOUT DEFENDANT'S PRE-
ARREST SILENCE.
POINT FOUR
THE PCR COURT ERRED WHERE IT
DETERMINED THAT THE BANKSTON ISSUE
WAS BARRED PROCEDURALLY.
POINT FIVE
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THE PCR COURT'S FAILURE TO ADDRESS THE
ISSUES RAISED BY DEFENDANT IN HIS PRO SE
BRIEF REQUIRES A REMAND FOR REVIEW.
Defendant filed a pro se brief in which he argues:
POINT ONE
BECAUSE OF THE INEFFECTIVE ASSISTANCE
OF PCR COUNSEL, THE FAILURE OF THE PCR
COURT TO ADDRESS THE DEFENDANT'S PCR
CLAIMS SUPPORTED BY CERTIFICATIONS, AND
FAILURE TO ORDER AN EVIDENTIARY
HEARING CONTRAVENES PRECEDENT SET
FORTH IN STATE V. PORTER, 216 N.J. 343 (2013),
THEREFORE THE ORDER DENYING RELIEF
SHOULD BE REVERSED.
II.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz, l05 N.J. 42 (1987). In order to prevail on an ineffective assistance of
counsel claim, defendant must meet a two-prong test by establishing that: (l)
counsel's performance was deficient and he or she made errors that were so
egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists "a
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reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland, 466 U.S. at 687, 694.
Our review of the PCR court's findings of fact is deferential. State v. Pierre,
223 N.J. 560, 576 (2015). We "uphold the PCR court's findings that are
supported by sufficient credible evidence in the record." State v. Nash, 212 N.J.
518, 540 (2013). The PCR court's interpretation of the law and legal conclusions
are reviewed de novo. Id. at 540-41.
Defendant is entitled to an evidentiary hearing on a PCR petition if he or
she establishes a prima facie case in support of PCR. To establish a prima facie
case, a defendant must demonstrate a "reasonable likelihood of succeeding
under the test set forth in Strickland . . . ." State v. Preciose, 129 N.J. 451, 463
(1992).
A.
Defendant claims his trial counsel was ineffective by not reviewing the
strengths and weaknesses of the case before defendant rejected the plea offer.
He argues that even if he did maintain his innocence, counsel still needed to
review the pros and cons with him. He claims he was prejudiced because he
would not have rejected the plea offer.
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When a defendant's ineffective assistance of counsel claim is based on the
rejection of a plea bargain due to the advice of counsel, the defendant
must show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer
would have been presented to the court (i.e., that the
defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence,
or both, under the offer's terms would have been less
severe than under the judgment and sentence that in fact
were imposed.
[Lafler v. Cooper, 566 U.S. 156, 164 (2012).]
Our Supreme Court has held that a defendant may not enter a plea of guilty while
maintaining his innocence. State v. Taccetta, 200 N.J. 183, 195-96 (2009). The
court reasoned that doing so would be tantamount to perjury, and that "[c]ourt -
sanctioned perjury is not a permissible basis for the entry of a plea in this State."
Ibid.
We agree with the PCR court that defendant has not satisfied either prong
of Strickland on this issue. It is not sufficient merely to allege baldly that his
counsel should have talked with him more about the merits and drawbacks of
his defense. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)
(providing that a PCR petitioner "must allege facts sufficient to demonstrate
counsel's substandard performance."). Defendant's certifications provided no
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specifics about what he and his counsel discussed, what counsel should have
discussed, or what he did or did not understand. This was not sufficient to show
constitutionally deficient performance by his trial counsel.
Defendant asserts the discussions with counsel were not adequate because
he rejected the plea offer resulting in prejudice. However, defendant
consistently maintained his innocence of the charges. During his sentencing, he
told the court he was innocent. "I believe I was an innocent person in this case
and you all still found your way to manage to convict me on something I
necessarily really didn't do like." He maintained this in his PCR certification.
In this appeal, he is arguing that the additional video tape will support his claim
of innocence. Indeed, his counsel has asked for a new trial. 1
Whether counsel discussed the pros and cons of his case in a level of detail
required to meet constitutional performance standards does not equate to
prejudice where defendant maintained his innocence and could not have pleaded
guilty without committing perjury. See Taccetta, 200 N.J. at 194.
1
Defendant's undated and unsigned certification to the PCR court that "I retract
any claims of innocence" is not consistent with this.
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B.
Defendant contends his counsel provided ineffective assistance by not
asking to introduce a portion of the surveillance video tape from the 501 store
during the trial. Defendant argues that had the later portion of the surveillance
footage been entered into evidence, it would have corroborated the testimony of
defense witnesses who testified that defendant was wearing a white, green, and
blue hoodie with a zipper the night of the shooting, and not the gray Champion
hoodie that the shooter was described to have been wearing. He claims the PCR
court erred by determining that counsel's decision not to use this portion of the
tape was trial strategy. Counsel asked for the entire tape to be admitted but this
was after the charge and deliberations began. The full tape was not shown to
the jury.
The PCR court concluded based on the State's argument that not using
witnesses to introduce this portion of the surveillance video was trial strategy.
The PCR court observed:
It is possible counsel did not wish to further highlight
the video, as it was a particularly damaging piece of
evidence against his client and he may have believed
the risks outweighed the possible rewards. Although
defendant's witnesses identified defendant as the
second male on the video, there were no neutral third-
party witnesses to support those claims. Additionally,
had that portion of the video been discussed, the State
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could have argued defendant had ample time to change
his clothes as he lived nearby. Moreover, the State
could have used that portion of the video to suggest
defendant purposely went home, changed his clothes,
and then came back to the store in order to try to
establish his own alibi. Therefore, it is possible counsel
anticipated such an outcome and decided against
opening the door for the State to make such an
argument.
Where counsel has "thoroughly investigate[d] law and facts, considering
all possible options, his or her trial strategy is 'virtually unchallengeable.'" State
v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, 466 U.S. at 690-91).
However, "strategy decisions made after less than complete investigation are
subject to closer scrutiny." Ibid. Perhaps attempting to admit the tape at the
end was part of counsel's strategy, but none of that can be gleaned from the
record. What is in the record is that when counsel seemed to realize the tape
was not part of the evidence, he made an attempt to include it but this was after
the charge to the jury when it already had commenced deliberations. Much
earlier in the trial, the parties had marked a condensed version of the tape that
was shown to the jury separately from the complete tape. Defense counsel did
not question witnesses about the longer version. Whether something changed
in the strategy or whether counsel realized an error was made cannot be
ascertained on this record. We are satisfied that the answer to whether this was
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trial strategy lies outside the current record and that an evidentiary hearing is
necessary to resolve whether it was a deliberate strategic choice not to have the
footage admitted into evidence, or a failure to meet the standard of
"reasonableness under prevailing professional norms." Strickland, 466 U.S. at
688.
To show prejudice, defendant has to show that a reasonable probability
exists that the result of the proceeding would be different. State v. Castagna,
187 N.J. 293, 315 (2006). Arguably, this portion of the video could have been
used to challenge the State's theories. This satisfied the second prong of
Strickland.
C.
Defendant contends his appellate counsel did not address the prosecutor's
alleged misconduct during his closing argument. Defendant alleges the
prosecutor equated defendant's silence after the shootings and before his arrest
as evidence of guilt.
Although defendant is entitled to the effective assistance of appellate
counsel, "appellate counsel does not have a constitutional duty to raise every
non[-]frivolous issue requested by the defendant." State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 754
A-4490-18T1
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(1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App. Div. 2007)
(holding that appellate counsel is not "required to advance every claim insisted
upon by a client on appeal").
The prosecutor's comments were made about defendant's failure to turn
himself in prior to contact with the police. This is not prohibited by State v.
Muhammad, 182 N.J. 551, 569 (2005), which provides that a prosecutor may
not comment on "a defendant's silence when it arises 'at or near' the time of
arrest, during official interrogation, or while in police custody." Muhammad
explained the "in circumstances not involving official interrogation or a
custodial setting, silence significantly preceding arrest is admissible if 'it
generates an inference of consciousness of guilt that bears on the credibility of
the defendant when measured against the defendant's apparent exculpatory
testimony.'" Id. at 572 (quoting State v. Brown, 118 N.J. 595, 615 (1990)).
Defendant did not show that appellate counsel provided ineffective assistance
where there was not a reasonable probability the claim of prosecutorial
misconduct would have satisfied Muhammad.
D.
Defendant alleges the PCR court erred by ruling that his claim under
Bankston was procedurally barred. 63 N.J. at 263. Bankston "makes clear that
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both the Confrontation Clause and the hearsay rule are violated when, at trial, a
police officer conveys, directly or by inference, information from a non -
testifying declarant to incriminate the defendant in the crime charged." State v.
Branch, 182 N.J. 338, 350 (2005). At trial one of the officer's testified "I do not
know that it was learned through the relatives of the victims that they knew who
robbed them and shot them, and the name Roger Howard came up." When asked
how the relatives would know this, the officer said "They told their family
members what happened to them." We agree with the PCR court this issue could
have been raised previously and now is barred by Rule 3:22-4(a). However,
even if it were below standard for trial counsel not to make a Bankston objection,
there was no prejudice in this case where there was testimony at trial from the
victims that defendant shot them.
E.
Defendant argues the PCR court should have addressed issues raised by
him in his pro se supplement to the amended PCR petition and that a remand is
needed to address them. The State concedes that a remand is needed for the
PCR court to address the ineffective assistance of counsel issues that were
raised. We remand these issues.
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Affirmed in part; vacated and remanded in part for the PCR court to
address the defendant's pro se supplement to the amended PCR petition dated
February 19, 2019, and for an evidentiary hearing regarding defendant's
ineffective assistance claim on the issue of the surveillance video tape. We do
not retain jurisdiction.
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