Opinion
DOCKET NO. A-5144-12T3
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TORY TYLER, Defendant-Appellant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1042. Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, on the brief). PER CURIAM
Defendant Tory Tyler appeals from the dismissal of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
The facts are set out at length in our opinion on defendant's direct appeal, State v. Tyler, No. A-4153-07 (App. Div. Nov. 19, 2010) (slip op. at 2-4). We synopsize them here. Defendant fatally stabbed his girlfriend's ex-boyfriend, Gerald Cooper. Cooper, who had just been released from prison, arrived in the middle of the night at the woman's home having only just learned she had been seeing defendant while Cooper was incarcerated. Cooper woke the woman and defendant by throwing things against the first-floor window of the room in which they were sleeping. After words were exchanged, defendant's girlfriend went outside to "get rid of" Cooper.
When she told Cooper to leave, he punched her in the face and threw her against a parked car. Defendant ran to her aid and began trading punches with Cooper. The woman testified that at some point she saw defendant pick up a knife from the ground and stab Cooper in the area of his left shoulder. Cooper continued to punch defendant. When the woman's mother came outside and yelled at the men to stop fighting, they ran off. Cooper, however, fell to the ground within a block. The knife to his shoulder had severed his carotid artery. Defendant got into a taxi and left the scene at his girlfriend's urging.
Defendant was apprehended and cooperated with the police, telling them where he had discarded the knife. Cooper died as a result of the wound to his shoulder. The medical examiner testified that he sustained fourteen knife wounds, several to his face.
Defendant was indicted on charges of murder, N.J.S.A. 2C:11-3(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He rejected the State's plea offer and elected to go to trial, asserting a passion/provocation defense. Tried to a jury, he was acquitted of murder but found guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and the weapons offenses. After merging the weapons convictions into the manslaughter conviction for sentencing purposes, the judge imposed the maximum term of thirty years imprisonment subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:4 3-7.2. We affirmed defendant's conviction and sentence on direct appeal, State v. Tyler, No. A-4153-07 (App. Div. Nov. 19, 2010), and the Supreme Court denied certification, 206 N.J. 329 (2011).
Defendant thereafter filed a timely petition for PCR alleging he received ineffective assistance of counsel in connection with his conviction and sentence, as well as ineffective assistance of appellate counsel. Defendant claimed he was not properly advised regarding evaluation of the State's plea offer, and that his counsel misinformed him of the offer and the material consequences of the plea. He claimed he would have accepted a plea had he known his counsel was not planning on having him testify, and that the absence of his testimony significantly undermined his passion/provocation defense. Defendant also contended his counsel was ineffective for failing to object to the verdict sheet and its reference to the term "lesser included" which confused and misled the jury. He claimed his appellate counsel failed to file his pro se supplemental brief which had argued the trial court erred in refusing to set aside the verdict or modify the jury's findings to passion/provocation manslaughter, and that the verdict sheet was flawed and misled the jury, leading to an unjust result. He finally claimed he was denied a fair trial because the jury was inflamed by the victim impact statements, and his counsel was ineffective for failing to argue that his statements to the police were not voluntary.
After hearing argument on the petition, the judge, who had also presided over defendant's trial, determined to hold an evidentiary hearing to explore defendant's allegations regarding the advice he received in connection with evaluating the State's plea offer and his decision not to testify at trial.
Both defendant and his trial counsel testified at the evidentiary hearing. Defendant's counsel testified he had been retained almost immediately upon defendant's arrest and had a good rapport with defendant and his family. The lawyer, a very experienced criminal defense attorney, testified he spent hours with defendant reviewing the discovery and discussing possible defenses to the charges, including self-defense, defense of others and passion/provocation.
He recalled the State's plea offer, that defendant plead guilty to aggravated manslaughter in exchange for the prosecutor's recommendation of a twenty-two-year NERA term, and his counter-proposal that defendant plead to second-degree manslaughter with a NERA term of seven to ten years. He testified to the details of the final status conference; the State's willingness to accept a sentence in "the high teens," and the judge's statement that he interpreted the "high teens" to mean a seventeen-year NERA sentence. Counsel testified that he was confident he discussed with defendant the possibility of a life term with thirty years' parole ineligibility were he convicted of murder, as well as his exposure should he be convicted of aggravated manslaughter or other lesser-included charges. According to defense counsel, defendant was looking for a sentence in the range of ten to twelve years and a sentence of seventeen years was unacceptable to him.
Counsel also explained that he expected defendant would testify at trial "because he was clear to everybody from the very beginning as to what happened." That is, that Cooper had been the aggressor and defendant had come to the aid of his girlfriend, whom Cooper was assaulting. Defendant "basically surrendered" himself to police and was "very open." In counsel's mind, "this case was really not based upon did [defendant] do this or didn't he do this. It was why did it happen as opposed to did it happen and was it him."
According to counsel, defendant's decision not to testify was defendant's own, and counsel did not "talk[] him out of testifying because the entire case was based on the way he was presenting himself." Counsel acknowledged explaining to defendant, as he would any client dealing with a capable prosecutor, that "he's got the potential of not coming across well to a jury." Although he could not recall their conversation from five years ago, he testified, "I can only assume I would have told him that, if he wanted to testify, it would be to his benefit and if he didn't want to testify, that was his right. I can't specifically tell you if I said those words. I thought he had a strong defense for himself."
In response to questions as to whether he had considered a motion to suppress the knife on the basis that defendant's initial statements to police were made without benefit of Miranda warnings, counsel explained he had not done so because it was inconsistent with the theory he was pursuing. He explained that defendant's cooperation with the police was critical to his claim that he had not intended to kill Cooper but was merely defending himself and his girlfriend against a brutal assault. Specifically, counsel stated:
I believe[d] from the very beginning that Tory Tyler in this matter was doing what he really thought was the right thing to do in this case. He didn't go out looking to create havoc. He was in a house when . . . the victim, the deceased, . . . started to beat up his girlfriend . . . . [He] tried to stop that. . . . [T]his altercation between . . . the deceased and the girlfriend got out of hand. This fellow became very agitated. Tory . . . didn't have a knife with him. I think he went to the kitchen to pick up a knife to protect himself and, certainly, his girlfriend. So Tory — we were presenting him as a victim as well. . . . His cooperation with the police, . . . his reasoning to try to help the girlfriend, his trying to protect himself, to try to do everything he was supposed to do to bring this matter outside the house.In counsel's view, the case was not about identification, but justification.
Contrary to counsel's testimony, defendant maintained his lawyer "never told [him] anything about the plea." Defendant explained that after learning about the plea from the judge at the last status conference,
I told [counsel] I was willing to take it, but he said that [doesn't] fit the range of passion provocation manslaughter. Passion provocation manslaughter has . . . [a] maximum exposure [of] ten years. So it would be foolish for us to take that. He said, if we take the trial, our chances [are] way better because if I lose the passion provocation, the most I can get was ten.
In response to questions from the prosecutor, defendant acknowledged that the judge had explained to him that the penalty for murder was life with thirty years before parole, and were defendant to take a plea offer of seventeen years with an eighty-five-percent parole ineligibility term, he would be serving fourteen years, five months and fourteen days. Because defendant was twenty-one years old at that time, the judge calculated defendant could be out of prison when he was thirty-five years old.
Defendant also acknowledged the judge explained the range for the lesser-included offense of reckless manslaughter and that the use of deadly force in self-defense was only justifiable if one reasonably believed such force was necessary to protect against death or serious bodily injury. Defendant further acknowledged that after the judge told him self-defense and the use of deadly force had its limitations and was "a very tricky statute to play around with," defendant rejected the plea and told the judge he wanted to go to trial. He claimed, however, that after the judge made those statements, his counsel pulled him aside "and told [him], look, we're going to reject the plea and we're going to go to trial. That's when he told me it's way outside of the range of passion/provocation manslaughter and he said . . . that we're not going to accept it."
Defendant was also adamant that he wanted to testify in his own behalf at trial, but that counsel instructed him to "just tell [the judge] no, you're not going to testify." When the prosecutor asked whether that meant defendant wanted to reject the plea and go to trial, defendant explained that his "initial plan was to go to trial and for the passion/provocation manslaughter," but "[he] would have [taken] the seventeen had [he known] [counsel] wasn't going to use [his] testimony."
The judge, after observing that self-defense, passion/provocation and defense of others would all be undermined by defendant having chased the victim after their initial encounter, asked defendant to explain in narrative form what he would have told the jury had he testified at trial. That request lead to the following colloquy between defendant and the court.
[Defendant] All right. Me and [my girlfriend, and another woman] was all in the house. Mr. Cooper called a few times. [My girlfriend] hung up on him, cut the ring off. He eventually came to the house. He knocked on the window. That's when [my girlfriend] opened the window and told him he had to leave because he was going — he was going to wake up her mother and her little brother.
Then she was like, I told you my boyfriend. He said, I don't give a "f" about him and that's when he started throwing mulch. You know, the little wood chips?
[The court] Yes.
[Defendant] He started throwing mulch at her and that's when I eventually woke up, I told [my girlfriend] like you, what's up with dude? Like he's going crazy cause you can tell by his demeanor how enraged he was. So he was smoking on a cigarette and blew smoke in my face. I was standing there like what's all that for.
[The court] Where did this happen? This happened outside or —
[Defendant] No. I'm sitting —
[The court] Under the window? Yes. Through the window. It was a first floor.
[Defendant] I was sitting on the bed.
[The court] I remember it's a first floor apartment.
[Defendant] Right next door to the bed.
[The court] Right.
[Defendant] So he blew smoke in my face.
[The court] Right.
[Defendant] I backed up. It's like, yo, go talk to him. And he was like, yo, big bro, I got that special. I looked at him, didn't know what he was talking about but he patted his right side when he said it. [My girlfriend] said, I'll be outside, closed the window and got dressed. She told me to get up and lift up her bed and got a kitchen knife and went out the front door.
[The court] Uh-huh.
[Defendant] At that time, she did tell me, Tory, don't go nowhere. Stay here. I got this. Stay in the house. When she went out, I opened the window back up and was peeking out to see — really to see if she was going to tell him don't come — come back later, wait until he leaves. So I looked out the window. They was talking for about like three minutes tops and that's when he grabbed her by the hair, threw her on the car and started hitting her. That's when I leaped out the window and all I heard was [my girlfriend] screaming. When I pulled Gerald off of her, his eye was already — I think it was his right eye — one of his eyes was bleeding. So I looked, where's this blood coming from, but he already hit me. So at that point, I'm trying to defend myself. We
started fighting. Eventually, I tripped and fell and he landed on top of me and I grabbed the knife and that's when he backed up. He rolled off of me.
[The court] So you grabbed the knife from where?
[Defendant] Yeah. Off the ground.
[The court] Oh, okay.
[Defendant] I grabbed —
[The court] Didn't you say [your girlfriend] brought it outside?
[Defendant] Yes.
[The court] Okay.
[Defendant] I grabbed the knife — I grabbed the knife off of the ground, and that's when he backed up and got off of me. [My girlfriend] was behind me at that time and he was like now what? And he called me all kinds of N words and whatever. So he ran after me, and then that's when I took one swing at him and hit him [in] the shoulder.
[The court] Can I ask a question?
[Defendant] Yes.
[The court] You thought he had a gun, right?
[Defendant] Yes.
[The court] And so you went out there without a knife, without any weapon? How were you going to defend yourself if he had a gun?
[Defendant] At that point — Judge, at that point, I didn't care. All I just wanted her to do was get out [of] the way —
[The court] All right.
[Defendant] — go back —
[The court] I mean, your testimony would have been — because you have to remember, sir, you would have been subject to cross-examination, and I'm not going to cross-examine you. I'm not going to ask [the prosecutor] to cross-examine you either. But your testimony would have been that you jumped out the window in your underwear believing that the man that you were going to go and assault had a — had a gun and you had no gun and no weapon. That would have been your testimony, right?
[Defendant] Yes.
[The court] All right. And then what happened
after — what would you have testified after that?
[Defendant] After I stabbed him in the shoulder, he ran off and that's when me and [my girlfriend] started — I didn't chase him.
[The court] Right.
[Defendant] We walked him like to see where he was going to go next and once he fell, that's when I ran up to him like, yo, you all right, yo? He was like, yo, I think I'm going to die and I got scared at that point. I ran in the house, made sure [someone] called the ambulance and [my girlfriend] was like, yo, you got to get out of here, leave, go. I'm going to call a cab. Just go. An then that's when I took the side of
the house where the bushes was and tossed the knife.
[The court] Okay. So that would have been your testimony?
[Defendant] Yes.
After hearing the testimony, the judge issued a comprehensive written opinion addressing each of defendant's claims. Analyzing the claims under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), the judge rejected defendant's claim that trial and appellate counsel had been ineffective in any respect.
Relying on the testimony adduced at the evidentiary hearing, the judge specifically rejected defendant's central claim that had the jury heard his testimony, they would likely have returned a verdict of passion/provocation manslaughter. The judge noted that defendant's testimony, although consistent with that of his girlfriend that Cooper was the aggressor, differed from other testimony in the record in critical respects. Defendant's girlfriend and her mother both testified defendant and Cooper ran off together when the mother came outside. Defendant's testimony that Cooper ran away after defendant swung at him once with the knife and that defendant had not pursued the victim was thus both inconsistent with the testimony of the two eye witnesses that the men were running in close proximity and failed to account for Cooper's thirteen other stab wounds.
Defendant argues that we should reverse the denial of his petition for post-conviction relief. Our review of the record, however, convinces us that the judge carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his trial or appellate counsel was substandard or that, but for any of their alleged errors, the result would have been different as required by Strickland/Fritz. Accordingly, we affirm substantially for the reasons expressed by Judge Caposela in his twenty-two page written opinion of November 2, 2012.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).