On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 86-05-0096-I.
Before Judges Pressler, Wefing and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
This is an appeal from the denial of post-conviction relief wherein no oral argument was provided on the petition. Following the guilt phase of a capital prosecution, defendant Gary J. Mayron was found guilty by a jury in 1989 of purposeful murder, N.J.S.A. 2C:11-3a(1), and of first-degree kidnapping of the victim, N.J.S.A. 2C:13-1b. Following the penalty phase, the jury did not unanimously agree that the aggravating factors outweighed the mitigating factors and defendant's life was spared. He was sentenced to a life term subject to thirty years of parole ineligibility on the murder conviction, and to a consecutive term of thirty years subject to fifteen years of parole ineligibility on the kidnapping conviction. On direct appeal we affirmed the judgment of conviction. State v. Mayron, No. A-2876-89T4 (App. Div. December 3, 1993). The Supreme Court subsequently denied certification. State v. Mayron, 135 N.J. 468 (1994).
In November 1994 defendant filed a timely petition for post- conviction relief. Therein, he set forth the following contentions:
1. DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN COUNSEL, ARMED WITH MEDICAL REPORTS REVEALING THAT DEFENDANT WAS SUFFERING FROM A MENTAL DIMINISHED CAPACITY, RELIED ON THE TESTIMONY OF PSYCHOLOGIST ONLY AT THE PENALTY PHASE, NOT AT THE GUILT PHASE, THUS DENYING DEFENDANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; WHEN COUNSEL FAILED TO USE A PEREMPTORY CHALLENGE TO EXCUSE JUROR NUMBER FOUR, WHEN HIS VOIR DIRE PROVED HE WAS PREJUDICIAL TO THE DEFENDANT; ALL VIOLATIONS OF DEFENDANT'S 5TH AND 6TH AMENDMENT RIGHTS TO BOTH THE STATE AND FEDERAL CONSTITUTIONS.
A. Defendant was denied effective assistance of counsel when trial counsel failed to pursue a diminished capacity defense when such defense was supported by expert medical records and expert medical evaluations.
B. Defendant was subjected to ineffective assistance of counsel when trial counsel failed to use a peremptory challenge in excusing juror number 4, when it was shown through voir dire that this juror was prejudicial towards defendant and not a good candidate for a juror.
2. THE DEFENDANT WAS SUBJECTED TO PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR EGREGIOUSLY LIED TO THE JURY, STATING THAT THE VICTIM HAD BEEN ANALLY SODOMIZED; REFERRED TO THE VICTIM AS AN INNOCENT CHILD; WHEN THE PROSECUTOR EXPRESSED HIS PERSONAL VIEWS; ALL VIOLATIONS OF DEFENDANT'S 5TH, 6TH AND 14TH AMENDMENT RIGHTS TO BOTH THE STATE AND FEDERAL CONSTITUTIONS.
A. The prosecutor falsely stated that the victim was sodomized by the defendant, solely to inflame the passions of the jury against the defendant.
B. The prosecutor committed impropriety and prosecutor misconduct when he referred to the victim, an adolescent, as a child, and expressed the personal opinions of the prosecution.
3. THE APPELLATE DIVISION ERRED BY NOT REVERSING DEFENDANT'S CONVICTION WHEN IT RULED THAT DEFENDANT'S 5TH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED.
Counsel was assigned and filed a brief on behalf of defendant alleging the identical issues. Counsel's brief and defendant's pro se memorandum of law were also identical. The State filed a letter brief in response, alleging in part ...