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State v. Chew

March 25, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN CHEW, DEFENDANT-APPELLANT.



On appeal from Superior Court, MiddleseX County, Law Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

WALLACE, J., writing for a majority of the Court.

In this capital case, defendant John Chew appeals from the denial of his petition for post-conviction relief (PCR). This Court previously affirmed Chew's capital murder conviction and death sentence in 1997 (150 N.J. 30)

and determined his sentence was not disproportionate when compared to similar cases in 1999 (159 N.J. 183).

On January 13, 1993, police found the body of Theresa Bowman in Chew's car, which was parked in the rear of the Woodbridge Hilton Hotel parking lot. Bowman's throat was slashed and she had been dead for approximately ten hours. A piece of paper was found on Bowman with the name of "Joe Martin" and a phone number written on it.

A chef at the Hilton recalled seeing a man and woman struggling in the car when he left the hotel the night of January 12. He described the man as looking like Kenny Rogers, a contemporary recording artist.

After police determined that Chew owned the car, they contacted him and arranged a meeting at his home. Chew appeared unkempt and did not match the description provided by the chef. Chew initially said he last saw Bowman on the evening of January 12, when they drove together to the home of his sister, Crystal Charette. Later, Bowman departed alone in Chew's car while Chew remained at Charette's house with Charette and her roommate, Helen Borden, before the two women drove Chew home. Police officers interviewed Charette and Borden, who corroborated Chew's statement.

On January 15, 1993, police received several telephone tips implicating Chew in Bowman's death. Chew's life insurance agent, who sold a $250,000 life insurance policy to Chew and Bowman in 1991, reported that Chew, who was the beneficiary of the policy if Bowman died first, arrived at the agent's house thirteen days before the murder to pay the December premium in cash because his check previously had bounced. Another call came from an associate of Chew's who reported that on several occasions in 1991, Chew had offered him $10,000 to kill Bowman. Chew's son, Robert, also called police and reported Chew's plan to kill Bowman and collect the insurance.

Randy F., Bowman's paramour, informed police that Bowman planned to leave Chew and move in with Randy F. on January 13, 1993. He stated that Bowman told him Chew would receive a settlement check that date and she in turn would receive $10,000 from Chew.

On January 23, 1993, Chew was arrested at his home. Charette, his sister, was interviewed the same day and told a different story. She said that Chew had called her on the night of the murder and asked her to meet him at the Hilton and to bring a bag, bleach, and a change of clothes. Charette and Borden arrived at the Hilton at 9:20 p.m. and approached Chew's car. Charette observed Chew exit the car with blood on his clothing. He removed and placed his clothing in a bag and instructed Borden to pour bleach in the bag. After he dumped the bag of clothes in the dumpster, Charette drove him home. Chew coached Charette and Borden on what to tell the police and threatened them.

Confronted with Charette's and Borden's statements, Chew claimed he went with Bowman to the Hilton to conduct a drug deal with a man named Joe who he did not know. After he waited inside the hotel while Bowman met with Joe, Chew returned to the car to find Bowman dead. Police charged Chew with murder around 4:00 p.m. About two hours later, Chew asked to speak with a detective and agreed to talk again. He recounted Bowman's drug deal with Joe. After the transaction, Chew entered the car and spoke to Bowman. She told him that she had gotten ripped off, and they began to quarrel. Chew explained that after Bowman informed him about her affair with Randy F., he "went off" on her.

Another detective was called in. Chew was administered additional Miranda warnings and signed a waiver.

Chew repeated his prior statement regarding the quarrel with Bowman. He claimed that Bowman hit him a couple of times and scratched him. Chew did not remember stabbing her. He claimed he had called his sister because he and Bowman planned to separate after the drug deal. He intended to give Bowman a portion of the $25,000 expected from the drug deal. Chew recalled removing and disposing of his bloodied clothes and begging Charette and Borden not to tell the police, but he did not remember having stabbed Bowman.

Chew was indicted for purposeful or knowing murder by his own conduct, possession of a knife for an unlawful purpose, terroristic threats, and other offenses later dismissed by the trial court. The prosecutor served notice of one aggravating factor: that Chew killed Bowman "as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value."

On June 13, 1995, the jury found Chew guilty of purposeful or knowing murder by his own conduct, and possession of a weapon for an unlawful purpose. At the penalty phase trial, the jury found the aggravating factor that Chew murdered Bowman "in expectation of the receipt of anything of pecuniary value," and ten mitigating factors raised by Chew under the catch-all mitigating factor, N.J.S.A. 2C:11-3c(5)(h). The jury unanimously determined that the single aggravating factor outweighed all of the mitigating factors, and returned a death penalty verdict. This Court affirmed Chew's conviction and sentence, and determined that Chew failed to show his death sentence was disproportionate.

In June 2000, Chew filed a PCR petition alleging he had been denied the effective assistance of counsel at both the guilt and penalty phases of his trial. With respect to the guilt phase, Chew claimed his trial counsel were deficient for pursuing a denial defense instead of a passion/provocation manslaughter defense, and for failing to request a general accomplice charge. With respect to the penalty phase, Chew claimed trial counsel were deficient for failing to: (1) use Dr. Gerald Cooke, a psychologist, as an expert witness in support of the mitigating factor under N.J.S.A. 2C:11-3c(5)(b) (extreme mental or emotional disturbance insufficient to constitute a defense to prosecution); (2) present evidence in support of the mitigating factor under N.J.S.A. 2C:11-3c(5)(b) (victim solicited, participated in or consented to the conduct which resulted in death); (3) present evidence to show that Chew had no history of violent crimes; and (4) request a limiting instruction.

A hearing was held on Chew's petition. Both trial counsel, Terrance Toner and Pamela Brause, testified at the hearing, as did Dr. Cooke. Trial counsel explained that they decided to pursue a denial defense and did not pursue a passion/provocation defense because this would have required Chew to tell the jury that he killed Bowman. They also viewed the defenses of denial and passion/provocation to be mutually exclusive.

Brause learned from Charette that she had an incestuous relationship with Chew. She was aware that the State's mental health expert, Dr. Daniel Greenfield, had interviewed Charette. Although Brause never asked Charette whether she had informed Dr. Greenfield about the incestuous relationship, Brause believed she had done so. Brause never requested a copy of Dr. Greenfield's report. Brause decided not to call Dr. Cooke as a witness at the penalty phase for fear the incestuous relationship would be revealed to the jury. In addition, she was "sure" that the State's expert, Dr. Greenfield, would be called in rebuttal and would testify that Chew was a sociopath and expose Chew's anti-social and criminal behavior.

Dr. Cooke outlined his diagnoses of Chew as personality disorder mixed with dependent, histrionic, and antisocial features; drug dependency; depressive disorder; and developmental reading disability. He believed there was support for the mitigating factor under N.J.S.A. 2C:11-3c(5)(a), that "defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution." He stated that Brause never told him about the incestuous relationship between Chew and Charette nor asked him whether that relationship would have changed his diagnosis.

The PCR court denied Chew's petition, rendering a written decision. The court concluded that while there may have been some deficiencies in the trial preparation by defense counsel, the defense team made a strategic decision to employ a denial defense, there was no deficiency in failing to request a general accomplice charge, and whatever the positive effects of finding the mitigating factor under N.J.S.A. 2C:11-3c(5)(a) might have been if Dr.

Cooke had testified, they would have been nullified by the negative features of such testimony.

HELD Trial counsel failed to make a reasonable and thorough investigation before deciding to exclude mitigating evidence that Chew suffered from extreme mental or emotional disturbance, and there is a reasonable probability that such evidence would have substantially affected the jury's penalty phase deliberations.

1. There is a two-prong test for evaluating claims of ineffective assistance of counsel. A reviewing court first must determine whether counsel's performance fell below an objective standard of reasonableness, and second, whether there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. While the second prong analysis of prejudice applies to a defendant's guilt-phase representation, a less demanding standard for the prejudice prong is used for the penalty phase. A capital defendant demonstrates prejudice on a showing of "a reasonable probability that, but for counsel's unprofessional errors, the jury's penalty phase deliberations would have been affected substantially." (pp. 19-23)

2. Trial counsel's decision to pursue a denial defense did not constitute deficient performance. Both the denial and passion/provocation defenses carried benefits and drawbacks. Defense counsel had to choose between two weak defenses, and the Court will not second-guess counsels' trial strategy in that regard. In addition, there was no rational basis for an accomplice liability instruction. Thus, trial counsel's failure to request the charge was not prejudicial. (pp. 24-38)

3. Chew claims that trial counsel were ineffective in deciding not to call Dr. Cooke as a witness in the penalty phase. Dr. Cooke, consistent with his report, was prepared to testify to the existence of the mitigating factor under N.J.S.A. 2C:11-3c(5)(a), that Chew suffered from serious mental and emotional disturbance since a young age. Counsel's strategic decision not to call Dr. Cooke as an expert was not based on a thorough investigation or consideration of all plausible options. Once counsel became aware that Charette claimed to have had an incestuous relationship with Chew, they failed to investigate whether the State's expert, Dr. Greenfield, was aware of this information. They never interviewed Dr. Greenfield nor requested a copy of his report. In addition, counsel failed to discuss this information with Dr. Cooke. Dr. Cooke testified at the PCR hearing that he was never made aware of the alleged incestuous relationship, and that such a revelation would have strengthened his conclusion that Chew was under the influence of extreme mental or emotional disturbance. There is a reasonable probability that Dr. Cooke's testimony would have substantially affected the jury's deliberations in the penalty phase. Dr. Cooke's report and testimony would have provided credible evidence of Chew's mental and emotional instability. To be sure, that mitigating evidence also had a potential downside. Nevertheless, based on Dr. Cooke's projected testimony, one or more jurors may have found the additional mitigating factor that Chew suffered from extreme mental or emotional disturbance. Consequently, Chew has satisfied the prejudice prong of the ineffective assistance of counsel analysis, and a remand is necessary for a new penalty phase trial. (pp. 39-46)

Judgment of the Law Division denying Chew's PCR petition is AFFIRMED in part and REVERSED in part, and the matter is REMANDED for a new penalty phase trial.

JUSTICE VERNIERO, joined by CHIEF JUSTICE PORITZ and JUSTICE LaVECCHIA, filed a separate opinion concurring in part, and dissenting in part. They join the Court's opinion rejecting Chew's arguments concerning the guilt phase of his trial, but disagree with the finding that Chew has demonstrated ineffective assistance of counsel during the trial's penalty phase.

JUSTICES LONG, ZAZZALI, and ALBIN join in JUSTICE WALLACE's opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part in which CHIEF JUSTICE PORITZ and JUSTICE LaVECCHIA join.

The opinion of the court was delivered by: Justice Wallace

Argued September 23, 2003

In this capital case, defendant John Chew appeals from the denial of his petition for post-conviction relief (PCR). This Court previously affirmed defendant's capital murder conviction and death sentence, State v. Chew, 150 N.J. 30 (1997) (Chew I), and determined that his sentence was not disproportionate when compared to similar cases, State v. Chew, 159 N.J. 183 (1999) (Chew II). Defendant asserted in his petition for PCR, among other things, the ineffective assistance of counsel during both the guilt and penalty phases of the trial. Defendant now appeals the trial court's denial of his petition for PCR. We reverse and remand for a new penalty phase trial.

I.

A. Facts

The facts are set forth in detail in Chew I, supra, 150 N.J. at 42-50. We repeat here those facts relevant to defendant's PCR petition and necessary to our disposition.

On January 13, 1993, police found the body of Theresa Bowman in defendant's car, which was parked in the rear of the Woodbridge Hilton Hotel parking lot. Bowman's throat was slashed and she had been dead for approximately ten hours. A piece of paper was found on Bowman with the name "Joe Martin" and a phone number written on it.

The police interviewed Alejandro Mecalco, a chef at the Hilton, who recalled seeing a man and woman struggling in the car when he left the hotel on the night of January 12, 1993. He described the man as looking like Kenny Rogers, a contemporary recording artist, with a round face, dark eyes, full beard, mustache, and neat, well-combed hair.

After the police determined that defendant owned the car, they contacted and arranged to meet with him at his home. Defendant appeared unkempt and did not match the description provided by Mecalco. Defendant spoke with the police for about fifteen minutes, providing them with his first statement (first statement).*fn1 He said he last saw Bowman on the evening of

January 12, 1993, when they drove together to the home of his sister, Crystal Charette. Later, Bowman departed alone in defendant's car while he remained at Charette's house with Charette and her roommate, Helen Borden, for an hour-and-a-half before the two women drove him home. Police officers then interviewed Charette and Borden, who corroborated defendant's first statement.

On January 14, 1993, Detective Geoffrey Kerwin visited defendant's home to request an interview, obtain blood samples, and search his car and house. Defendant signed a waiver of his rights and agreed to the interview (second statement), and the search of his home. In his second statement, which was recorded, defendant repeated much of his first statement and provided more information about his relationship with Bowman. He said they met in 1988 and lived together from 1989 until the time of her death. After searching defendant's house, investigators took defendant to Charette's home, where Charette and Bowman gave taped statements exculpating defendant.

On January 15, 1993, the police received several telephone tips implicating defendant in Bowman's death. Defendant's life insurance agent, who sold a joint $250,000 life insurance policy to defendant and Bowman in 1991, reported that defendant, who was the beneficiary of the policy if Bowman died first, arrived at the agent's house on December 31, 1992, thirteen days before the murder, to pay the December premium in cash because his check previously had bounced. Defendant told the agent he did not want the policy to lapse. Another call came from George Tilton, an associate of defendant, who reported that on several occasions between June and November 1991, defendant offered him $10,000 to kill Bowman so defendant could collect the insurance proceeds. Defendant's son, Robert Chew, also called the police and reported defendant's plan to kill Bowman and collect the insurance proceeds.

Randy F., Bowman's paramour, informed the police that Bowman planned to leave defendant and move in with Randy F. on January 13, 1993. He stated that Bowman told him defendant would receive a settlement check that date and she in turn would receive $10,000 from defendant.

On January 23, 1993, Detective Kerwin arrested defendant at his home. Other police investigators went to Charette's house. This time, Charette told a different story. She stated that defendant called her on the night of the murder and asked her to meet him at the Hilton and to bring a bag, bleach, and a change of clothes. Defendant told her that Bowman had picked up her paycheck and wanted to remain there with friends, but he wanted to return home. Charette and Borden arrived at the Hilton at 9:20 p.m. and approached defendant's car. Charette observed defendant exit his car with blood on his clothing. He then removed and placed his outer clothes in a bag, and instructed Borden to pour bleach in the bag. After he dumped the bag of clothes in a dumpster, Charette drove him home. Later that night, defendant coached her on what to tell the police and threatened her. Borden confirmed Charette's story and added that she thought she heard a scream shortly before defendant exited his car.

Detective Kerwin confronted defendant with Charette and Borden's statements. He administered Miranda warnings to defendant. Defendant refused to sign the Miranda card, but agreed to give a taped statement (third statement). He then acknowledged being at the scene of the crime and having his sister and Borden drive him home. After the taped statement concluded, defendant provided a more detailed version of events (fourth statement). He claimed he went to the Hilton with Bowman to conduct a drug deal with a man named Joe, who he did not know. After he waited inside the hotel while Bowman met with Joe, defendant returned to the car to find Bowman dead. The interview terminated after defendant stated he wanted to contact his attorney.

The police charged defendant with murder around 4:00 p.m. Defendant complained of back pain and received medication. About two hours later, defendant asked to speak with Detective Kerwin. Tearfully, defendant asked the detective what penalty he faced, and after Detective Kerwin responded thirty years, defendant agreed to talk again. He recounted Bowman's drug deal with Joe. After the transaction, defendant entered the car and spoke to Bowman. She told him that she had "got[ten] ripped off" in the drug deal, and they began to quarrel. Defendant explained that after Bowman informed him about her affair with Randy F., he "went off" on her.

At that point, Detective Kerwin called in another detective, administered additional Miranda warnings, and defendant signed a waiver. Between 6:13 and 6:24 p.m., defendant provided another statement (fifth statement).

Defendant repeated his prior statement regarding the quarrel with Bowman following the failed drug deal. He claimed that Bowman hit him a couple of times and scratched him in the face. He did not remember stabbing her. After the argument, defendant left his vehicle and entered Charette's car. He claimed he asked her to pick him up because he and Bowman planned to separate after the drug deal. He intended to give Bowman a portion of the $25,000 expected from the drug deal. Defendant recalled removing and disposing of his bloodied clothes and begging Charette and Borden not to tell the police, but did not remember having stabbed Bowman.

B. Procedural History

Defendant was indicted for purposeful or knowing murder by his own conduct, possession of a knife for an unlawful purpose, terroristic threats, and other offenses later dismissed by the trial court. The prosecutor served notice of one aggravating factor: that defendant killed Bowman "as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value." N.J.S.A. 2C:11-3c(4)(d).

On June 13, 1995, the jury found defendant guilty of purposeful or knowing murder by his own conduct, N.J.S.A. 2C:11-3a(1) or (2), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. At the penalty phase trial, the jury found the aggravating factor that defendant murdered Bowman "in expectation of the receipt of anything of pecuniary value," N.J.S.A. 2C:11-3c(4)(d). The jury also found the ten mitigating factors raised by defendant under the catch-all mitigating factor, N.J.S.A. 2C:11-3c(5)(h). The jury unanimously determined that the single aggravating ...


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