State of New Jersey v. Tyrice O. Berry

NOT FOR PUBLICATION WITHOUT THE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-0215-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRICE O. BERRY,

Defendant-Appellant.

_______________________

Submitted December 10, 2024 – Decided January 7, 2025

Before Judges Chase and Vanek.

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, Indictment No. 14-06-

1040.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel, on

the brief).

Raymond S. Santiago, Monmouth County Prosecutor,

attorney for respondent (Alecia N. Woodward,

Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tyrice O. Berry appeals from a Law Division order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing.

Based on our thorough review of the record and application of prevailing law,

we affirm.

I.

A.

We incorporate by reference, the facts and procedural history stated in

our prior opinion. See State v. Berry, No. A-3819-17 (App. Div. Apr. 19,

2022) (Berry I), certif. denied, 252 N.J. 143 (2022). We provide only the

salient facts from the record to give context to this particular appeal.

During the sixteen-day jury trial, the State proffered testimony from

twenty-one witnesses, including the two victims, Rashawn Brown and

Chauncey Toran. Berry I, slip op. at 5. In Berry I, we recounted the facts:

[A]t approximately 1:15 a.m. on October 19, 2012,

Asbury Park Police Officer Steven Love was involved

in an unrelated investigation when he "heard . . . about

ten gunshots in the area." Love immediately drove

towards the location of the shots and observed a

vehicle outside the Cameo Bar on Main Street with

"both [front] doors . . . open," "the back window . . .

shattered," and "bullet holes all through the car." On

the sidewalk, Love saw two men "hunched over," both

of whom had been shot. The injured men were later

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identified as Rashawn Brown and Chauncey Toran.

Neither could identify the shooters . . . .

[Berry I, slip op. at 5-6.]

On direct examination, Brown testified that when the officers presented

him with photographs of the alleged shooters and asked Brown if he

recognized them, Brown responded that he told the officers, "[n]o. Never —I

never even seen these kids."

Naquan Sims, a childhood friend of defendant, testified he was in a

friend's apartment when defendant came "bust[ing] through the door" stating

"somebody owed him money," "he got what he got," and "so he got shot."

Sims did not believe that defendant shot someone until he saw a news report

and recognized defendant as the shooter because he was wearing "a Halloween

mask with [an Afro]" similar to the one Sims had seen defendant wearing

about a "[w]eek prior." On cross examination, Sims could not recall the names

of the other individuals present in the apartment when defendant allegedly

confessed to the shooting.

The jury found defendant guilty on multiple charges, including first -

degree attempted murder and aggravated assault. Defendant appealed, arguing

the trial judge erred in denying his motion for judgment of acquittal.

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We affirmed, concluding the State's evidence was sufficient to withstand

the acquittal motion, and there was no error in determining the jury could find

defendant guilty beyond a reasonable doubt when collectively considering the

testimony proffered by the DNA expert and Sims. See Berry I, slip op. at 21-

22. We concluded "the State presented expert testimony tying defendant's

DNA to the beard and the walking stick the shooter was seen wearing and

carrying, respectively, in the surveillance videos." Id. at 21. We rejected

defendant's argument that his convictions were not supported by the trial

record because Sims was not a credible witness, reasoning that credibility

issues were for the jury to decide. Id. at 21-22.

B.

Defendant subsequently filed a PCR petition under Rule 3:22 arguing

ineffective assistance of trial counsel, which was denied in a written decision.

The PCR court cited to Berry I and explained the motion for acquittal on the

issue of credibility of a witness should not be relitigated pursuant to Rule 3:22-

5. The PCR court found no disputed issues of material fact requiring an

evidentiary hearing under the Strickland/Fritz1 standard.

1

See Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J.

42 (1987).

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The PCR court also explained "PCR counsel fails to acknowledge trial

counsel's strategic decision to not explicitly ask the victims if they knew

defendant." Citing to State v. Cummings, 321 N.J. Super. 154 (App. Div.

1999), the PCR court found defendant did not provide the court with the

necessary affidavits or certifications to support his argument that counsel was

ineffective in failing to investigate witnesses. 2

This appeal followed.

II.

Defendant raises the following arguments for our consideration:

POINT I

WHETHER THE PCR COURT WAS CORRECT IN

USING THE STRICKLAND/FRITZ STANDARD

FOR INEFFECTIVE ASSISTANCE OF COUNSEL

RATHER THAN THE CRONIC/SAVAGE 3

STANDARD FOR A PER SE INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIM.

POINT II

2

The PCR court made other findings not relevant to the arguments asserted on

appeal.

3

See United States v. Cronic, 466 U.S. 648 (1984); State v. Savage, 120 N.J.

594 (1990).

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WHETHER DEFENDANT ESTABLISHED A

PRIMA FACIE CASE FOR INEFFECTIVE

ASSISTANCE OF COUNSEL BECAUSE OF TRIAL

COUNSEL'S PURPORTED FAILURE TO

CONDUCT AN ADEQUATE PRETRIAL

INVESTIGATION.

POINT III

[WHETHER] THIS MATTER MUST BE

REMANDED FOR AN EVIDENTIARY HEARING

BECAUSE DEFENDANT ESTABLISHED A PRIMA

FACIE CASE OF TRIAL COUNSEL'S

INEFFECTIVENESS FOR NOT CONDUCTING AN

ADEQUATE PRETRIAL INVESTIGATION.

Defendant also submitted a pro se supplemental brief, which repeated the

arguments in his counseled submission.

We distill defendant's arguments to the following: trial counsel was

ineffective for failure to investigate witnesses; trial counsel was ineffective for

failure to present evidence that Brown and the other victim did not know

defendant, to erode the State's theory on motive; trial counsel failed to object

to the prosecutor's statement concerning the victims owing defendant money as

a motive for the shooting; the State withheld exculpatory evidence that the

victim did not make an out of court identification of defendant until the third

day of trial and the photo array was not presented to the defense in violation of

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Brady v. Maryland, 373 U.S. 83 (1963); 4 and defendant's trial counsel was per

se ineffective pursuant to Cronic and Savage and, even if counsel was not per

se ineffective, the PCR court should have held an evidentiary hearing.

III.

Having reviewed the record and considered the applicable legal

standards, we are unpersuaded by defendant's arguments and affirm

substantially for the reasons set forth by the PCR judge in their well-reasoned

written decision.

A.

We begin our analysis by recognizing our standard of review as de novo,

where, as here, no evidentiary hearing was conducted. State v. Blake, 444 N.J.

Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 421

(2004)). We review the PCR court's determination to proceed without an

evidentiary hearing under an abuse of discretion standard. State v. Brewster,

429 N.J. Super. 387, 401 (App. Div. 2013).

4

Arguments three and four were raised by defendant in his pro se

supplemental brief.

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B.

Under Rule 3:22-4,5 "a defendant is barred from raising any issue in a

PCR petition that could have been raised on direct appeal unless one of three

enumerated exceptions apply." State v. Wildgoose, 479 N.J. Super. 331, 344

(App. Div. 2024) (citing State v. Nash, 212 N.J. 518, 546 (2013)). Those

exceptions do not apply here because the argument could have been raised on

defendant's direct appeal, barring defendant's argument would not result in

5

Rule 3:22-4(a) states:

Any ground for relief not raised in the proceedings

resulting in the conviction, or in a post-conviction

proceeding brought and decided prior to the adoption

of this rule, or in any appeal taken in any such

proceedings is barred from assertion in a proceeding

under this rule unless the court on motion or at the

hearing finds:

(1) that the ground for relief not previously asserted

could not reasonably have been raised in any prior

proceeding; or

(2) that enforcement of the bar to preclude claims,

including one for ineffective assistance of counsel,

would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new

rule of constitutional law under either the Constitution

of the United States or the State of New Jersey . . . .

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"fundamental injustice," and a denial of PCR relief would not "be contrary to

the Constitution of the United States or the State of New Jersey." See R. 3:22-

4(a).

Additionally, Rule 3:22-3 6 confirms that a PCR petition "is not . . . a

substitute for appeal from conviction . . . ." The Supreme Court of New Jersey

has articulated that "[a] defendant ordinarily must pursue relief by direct

appeal, [R. 3:22-3], and may not use [PCR] to assert a new claim that could

have been raised on direct appeal [R. 3:22-4]." State v. McQuaid, 147 N.J.

464, 483 (1997).

On direct appeal, defendant did not argue that the State failed to reveal

exculpatory evidence until the third day of trial in violation of Brady, 373 U.S.

83. Since defendant "may not use post-conviction relief to assert a new claim

6

Rule 3:22-3 states:

Except as otherwise required by the Constitution of

New Jersey, a petition pursuant to this rule is the

exclusive means of challenging a judgment rendered

upon conviction of a crime. It is not, however, a

substitute for appeal from conviction or for motion

incident to the proceedings in the trial court, and may

not be filed while such appellate review or motion is

pending.

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that could have been raised on direct appeal," defendant's Brady argument is

barred pursuant to Rule 3:22-3 and 4.

C.

To establish a prima facie case of ineffective assistance of counsel

through a PCR petition, a defendant must establish the following: 1) counsel's

performance was deficient; and 2) the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. To satisfy the first

Strickland/Fritz prong, a defendant must "show[] that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed [to] the

defendant by the Sixth Amendment" and "that counsel's representation fell

below an objective standard of reasonableness." Strickland, 466 U.S. at 687-

88.

"[I]n making the evaluation, a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional

assistance . . . ." Id. at 689. As such, a defendant "must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)).

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To satisfy the second prong "[t]he error committed must be so serious as

to undermine the court's confidence in the jury's verdict or result reached."

State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694).

This prong generally requires that a defendant establish a "reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694.

We affirm the PCR court, concluding trial counsel's performance did not

fall below the "objective standard of reasonableness" necessary to satisfy the

first prong of Strickland/Fritz. Trial counsel's decision not to object to the

State's arguments concerning defendant's motive do not constitute ineffective

assistance. See State v. Bey, 161 N.J. 233, 251 (1999) ("Merely because a trial

strategy fails does not mean that counsel was ineffective."). Instead, counsel

chose to focus on identification as a matter of trial strategy, eliciting facts

regarding Brown's inability to identify defendant.

We are unpersuaded by defendant's argument that, had trial counsel

explicitly asked Brown if he knew defendant, it would have raised "reasonable

doubt to the jury; [t]herefore possibly changing the outcome of the trial."

Defendant's argument fails to overcome the presumption that counsel's

decision was sound trial strategy and does not establish his performance was

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objectively unreasonable. The record shows that trial counsel impeached

Brown by demonstrating his inability to identify the shooters in a photo array.

Defendant also fails to establish a prima facie case of ineffective

assistance of counsel under the Strickland/Fritz standard with respect to trial

counsel's purported failure to investigate other potential witnesses to

defendant's inculpatory statements to Sims on the evening of the incident.

During pretrial investigation, counsel "has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary[,]" and counsel's failure to do so will "render the

lawyer's performance deficient." State v. Porter, 216 N.J. 343, 353 (2013)

(quoting Chew, 179 N.J. at 217). "[W]hen a petitioner claims [a] trial attorney

inadequately investigated [the] case, [to establish a prima facie claim of

ineffective counsel the petitioner] must assert the facts that an investigation

would have revealed, supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification. "

Ibid. (quoting Cummings, 321 N.J. Super. at 170). Defendants must "do more

than make bald assertions that [they were] denied the effective assistance of

counsel" to establish a prima facie claim due to an alleged failure to conduct

pretrial investigations. Cummings, 321 N.J. Super. at 170. The record

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contains none of the factual affidavits or certifications required under

Cummings.

We discern no error in the court's denial of defendant's claims without a

hearing, based on our conclusion that the record does not substantiate a prima

facie claim for PCR. Pursuant to Rule 3:22-10(b), it is only proper for a PCR

court to grant an evidentiary hearing when the defendant has presented a prima

facie claim, material issues of disputed fact lie outside the record, and

resolution of those issues necessitates a hearing. Porter, 216 N.J. at 355.

Since we conclude that defendant failed to establish a prima facie case under

Strickland/Fritz, we need not reach the issue of whether defendant's trial

counsel was per se ineffective under the standard articulated in Cronic/Savage.

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

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