NOT FOR PUBLICATION WITHOUT THE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-0375-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAMASA T. NOBLES,
Defendant-Appellant.
________________________________
Submitted July 9, 2018 – Decided July 19, 2018
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-05-1391.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anderson D. Harkov, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (John J. Santoliquido, Special
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Tamasa T. Nobles appeals from the August 29, 2016
Law Division order denying her petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
According to Kedron Henry, who was defendant's neighbor and
an eyewitness to the event, defendant stabbed and killed her former
boyfriend, Devon Devine, following an argument in Henry's
apartment. Henry told the police he frequently heard defendant
and Devine arguing, and that Devine had hit defendant on prior
occasions. However, Devine had recently moved out of defendant's
apartment.
On December 2, 2012, Devine was visiting Henry in his
apartment. As they were talking, defendant came in and asked
Devine to return his key to her apartment. Devine denied having
the key and the former couple began to argue. Defendant then went
into Henry's kitchen, picked up a knife, and began to brandish it
at Devine. Henry grabbed her and told her to give him the knife.
She did so, and Henry put the knife back in the kitchen.
Defendant began wrestling with Devine in the other room.
After defendant "broke a pair of ear phones that belonged to"
Devine, he punched her in the leg, and defendant left the
apartment. Henry and defendant waited a few minutes and then went
outside, where they found defendant waiting for them with "one
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hand tucked in front of her body." Devine and Henry retreated
into Henry's apartment, and defendant followed them inside.
Henry saw that defendant was carrying another knife and he
attempted to restrain her. He yelled to Devine to "flee the
residence[,]" and Devine went down the front stairwell. Henry
held on to defendant and, thinking Devine had gotten out the front
door, released his grip on her. Defendant went down the stairwell,
and Henry pursued her. As he did, Henry saw that Devine had not
yet left the apartment, and was standing by the front door. At
that point, defendant stabbed Devine once in the chest and he
later died as the result of the wound. When the police arrived
at the scene, they found "no fresh bruises" on defendant, or any
"marks on her face indicating she had been hit[.]"
Based upon this evidence, a grand jury returned a three-count
indictment charging defendant with first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2) (count one); third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two);
and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(d) (count three).
In preparation for trial, defendant's attorney retained an
expert psychologist to evaluate defendant and prepare a report to
assist the attorney in determining whether defendant could present
evidence that she was the victim of Battered Women's Syndrome. As
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our Supreme Court has explained, "Battered Women's Syndrome is
recognized as 'a collection of common behavioral and psychological
characteristics exhibited in women who repeatedly are physically
and emotionally abused over a prolonged length of time by the
dominant male figure in their lives.'" State v. Hess, 207 N.J.
123, 149 (2011) (quoting State v. B.H., 183 N.J. 171, 182 (2005)).
"Evidence of the syndrome is admissible, typically in self-defense
cases, to 'explain conduct exhibited by battered women toward
their abusers'" and to "help[] our understanding of 'why a woman
remains in an abusive relationship' and why an 'abused woman may
have become conditioned into believing that she is powerless to
escape from the abuse.'" Ibid. (quoting B.H., 183 N.J. at 183).
The psychologist prepared a written report which the attorney
reviewed with defendant on a number of occasions. While the
psychologist opined that defendant suffered from a combination of
"Posttraumatic Stress Disorder and Persistent Depressive
Disorder[,]" she could only state that this condition was
"sufficient to have potentially negated at least one mental element
of the charged crime, the purposeful intent to cause . . . Devine's
death." (Emphasis added). The psychologist also stated that the
prior domestic violence defendant suffered in the relationship
"may have contributed to her formation of an honest, reasonable
belief that she had to defend herself against further episodes of
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violence with deadly force[.]" (Emphasis added). Thus, the
psychologist did not draw a definitive conclusion in her report.
At the pre-trial conference, defendant decided to plead
"open" to an amended charge under count one of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(e), for which she faced
the possibility of a thirty-year sentence. The judge indicated
that the sentence he would impose would not exceed twenty-two
years in prison, subject to the 85% parole ineligibility period
required by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-
7.2., and that counts two and three would be dismissed. See R.
3:9-3(c) (permitting the judge to accept a non-negotiated plea and
indicate the maximum sentence he or she would impose, conditioned
on review of the defendant's presentence report).
Before accepting the plea, the trial judge conducted a
thorough voir dire of defendant and her understanding of the plea.
Defendant acknowledged that her attorney had "explained" the
expert's report to her and answered all of her questions about it.
Defendant also stated that the attorney met with her "[t]oo many
[times] to count" during the eighteen months she represented her.1
Defendant then gave a factual basis for her guilty plea. Convinced
by defendant's testimony that she was acting "knowingly and
1
The attorney told the judge that she met with defendant "almost
every week" during these eighteen months.
5 A-0375-16T4
voluntarily, [and] with the advice of competent counsel," the
judge accepted defendant's plea.
At sentencing, defendant's attorney used the expert's report
to bolster her argument that mitigating factor four, N.J.S.A.
2C:44-1(b)(4), should be considered to reduce defendant's sentence
because the prior domestic violence she suffered might "tend[] to
excuse or justify [her] conduct, though failing to establish a
defense[.]" Pointing to a written statement Henry gave to the
police, the attorney also asserted that defendant acted "under a
strong provocation" and, therefore, mitigating factor three,
N.J.S.A. 2C:44-1(b)(3), should also be applied.2
In response to the attorney's arguments, the judge found both
mitigating factors three and four, and, based upon his
consideration of these and other relevant aggravating and
mitigating factors, sentenced defendant to twenty years in prison,
subject to NERA, on count one. This was two years less than the
sentence the judge had indicated would be imposed prior to hearing
and considering the attorney's contentions.
2
In Point III of her brief, defendant alleges for the first time
on appeal that her attorney failed to mention Henry's written
statement at the sentencing hearing. However, this contention
lacks factual support in the record because the attorney obviously
raised and relied upon this statement in her arguments to the
sentencing judge.
6 A-0375-16T4
Defendant appealed her sentence. We heard the appeal on our
Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-
11, and affirmed defendant's sentence.
Defendant later filed a petition for PCR contending, among
other things, that the assistance her trial attorney provided was
ineffective because the attorney failed to "pursue the battered
wom[en's] syndrome" as a defense. Defendant also asserted her
attorney did not adequately contest the application of certain
aggravating factors at sentencing or raise appropriate mitigating
factors.
In a thorough written opinion, Judge Damon G. Tyner considered
both of these contentions and denied defendant's petition. The
judge concluded that 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 Tyner determined that defendant's first contention was
nothing more than a "baseless" attack on the strategy employed by
her trial attorney. The judge found that other than defendant's
"bald assertion" that a self-defense argument would have been
successful, she "offer[ed] no evidence" to support this
allegation. Instead, Henry told the police that defendant pursued
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Devine twice with a knife before killing him as the victim was
attempting to flee the apartment. Thus, there was "no valid claim
for self-defense." Judge Tyner also noted that defendant's
attorney retained an expert, reviewed the expert's report, and
discussed the matter "numerous times" with defendant. Thus, the
judge concluded "it [was] clear from the record . . . that trial
counsel pursued the [Battered Women's Syndrome], but did not see
it as a viable trial defense."
Turning to defendant's second argument, Judge Tyner found
that defendant's attorney submitted a "lengthy brief prior to the
sentencing date that outlined all of the aggravating and mitigating
factors for the court." The attorney also reiterated these
arguments at the sentencing hearing, and asked the court to impose
an eight-year sentence based on the expert's report, Henry's
statement to the police, and a host of other arguments. The
attorney also presented two witnesses to speak on defendant's
behalf. As a result of the attorney's efforts, the judge imposed
a sentence that was two years less than he had originally
indicated. Under these circumstances, the judge ruled that the
attorney was clearly not ineffective.
Finally, the judge determined that an evidentiary hearing was
not required because defendant failed to present a prima facie
case of ineffective assistance of counsel. The judge also found
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that "all of the facts [were] laid out in the briefs and
transcripts submitted" and "[t]here [was] no evidence outside of
the record that would be useful in resolving the issue at hand."
This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE
THE PCR COURT ERRED WHEN IT FAILED TO GRANT
DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING.
POINT TWO
AS A RESULT OF TRIAL COUNSEL'S FAILURE TO
ADEQUATELY EXPLAIN TO DEFENDANT THE BATTERED
[WOMEN'S] SYNDROME AND ITS RELEVANCE TO A
CLAIM OF SELF[-]DEFENSE, DEFENDANT DID NOT
ENTER A KNOWING AND VOLUNTARY PLEA BECAUSE SHE
LACKED A FULL UNDERSTANDING OF THE
CONSEQUENCES OF HER GUILTY PLEA, THUS
DEPRIVING HER OF HER CONSTITUTIONAL RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT THREE
THE PCR COURT ERRED WHEN IT FAILED TO GRANT
DEFENDANT A NEW SENTENCE HEARING AS A RESULT
OF TRIAL COUNSEL'S FAILURE TO INCLUDE CRITICAL
MITIGATING EVIDENCE IN HER SENTENCING BRIEF
AND ORAL ARGUMENT: THE FORMAL STATEMENT OF
KEDRON HENRY.
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
9 A-0375-16T4
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. Preciose, 129 N.J. at 462.
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, State v. Fritz, 105
N.J. 42, 52 (1987), the defendant must demonstrate "how specific
errors of counsel undermined the reliability" of the proceeding.
U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Moreover, such acts or omissions of counsel must amount to
more than mere tactical strategy. Strickland, 466 U.S. at 689.
As the Supreme Court observed in Strickland,
[a] fair assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of hindsight,
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to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the
conduct from counsel's perspective at the
time. Because of the difficulties inherent
in making the evaluation, a court must indulge
a strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
"might be considered sound trial strategy."
[Strickland, 466 U.S. at 689 (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)).]
Having considered defendant's contentions in light of the
record and the applicable law, we affirm the denial of defendant's
PCR petition substantially for the reasons detailed at length in
Judge Tyner's comprehensive written opinion. The judge's
conclusion that defense counsel's handling of the expert report
was sound, tactical strategy is firmly grounded in the record.
The record also fully supports the judge's determination that the
attorney effectively represented defendant at the sentencing
hearing. Under these circumstances, the judge was not required
to conduct an evidentiary hearing on defendant's PCR application.
Preciose, 129 N.J. at 462.
Affirmed.
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