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State v. Tierney

June 28, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHELLE TIERNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 98-10-1493-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2007

Before Judges Seltzer and C.L. Miniman.

Defendant appeals from the denial of her application for post-conviction relief (PCR) predicated on a multiplicity of claims. Because the certifications she submitted raised a prima facie issue of ineffective assistance of counsel, a PCR hearing was scheduled. After assignment of PCR counsel, the claims were limited to alleged error in the grand jury proceedings and ineffective assistance of trial counsel. On November 15, 2004, after hearing testimony from a number of witnesses over several days, including defendant herself, her trial counsel, and her expert witness, Marsha Jane Kleinman, Ph.D., the PCR judge concluded in a detailed opinion from the bench that there was no manifest injustice that would support relief from the grand jury proceedings, a type of claim not ordinarily cognizable on a PCR application.*fn1 He also concluded that trial counsel's performance did not fall below that required by the Constitutions of the United States and New Jersey. This appeal followed.

Despite her Battered-Woman-Syndrome defense, defendant was convicted on June 23, 2000, of first-degree knowing or purposeful murder and third-degree possession of a weapon for an unlawful purpose. On September 29, 2000, defendant was sentenced to thirty years without parole on count one, the minimum sentence for first-degree murder, and four years on count two, concurrent with count one. On direct appeal defendant contended that some of the jury instructions were erroneous and that her conviction for possession of a weapon for an unlawful purpose should have been merged with the murder conviction. We affirmed the first-degree murder conviction but vacated the sentence on the weapons offense and remanded for entry of an amended judgment of conviction.

We need not recite the facts of the underlying criminal offenses here as they have been thoroughly set forth in our opinion in State v. Tierney, 356 N.J. Super. 468, 472-77 (App. Div.), certif. denied, 176 N.J. 72 (2003). Suffice it to say that defendant stabbed the man with whom she lived, resulting in his death.

With respect to the grand jury proceedings, defendant asserted that Investigator Charles Gerndt testified falsely on seven occasions with respect to his investigation. (1) He testified that he saw no injuries on defendant, but in fact defendant had multiple bruises. (2) He misstated the time that the police were first called about the domestic violence. (3) He incorrectly testified that a witness, Paul Dixon, told him that there was a physical altercation between defendant's brother and the victim; that the victim did not fight back; that defendant came out of the house, hit the victim, and then went back in and came out with a knife. In fact, defendant contends that Dixon's statement does not support this testimony. (4) Investigator Gerndt also told the grand jury that the victim walked up to the driver's door to take the car keys out so that defendant and her brother could not go anywhere and they could discuss the dispute. Defendant denies that this occurred. (5) Investigator Gerndt told the jury that no deal had been made with Dixon, but in fact the assistant prosecutor had written to the prosecutor asking that Dixon's assistance be considered when Dixon was sentenced. (6) The investigator also told the grand jury that only one witness mentioned anything about the victim striking the defendant, whereas two eyewitnesses gave explicit statements about the victim assaulting the defendant. (7) Finally, Investigator Gerndt testified that he had not developed any evidence that there was an abusive relationship in which the victim constantly assaulted the defendant. The victim's brother, however, told Investigator Gerndt that the victim constantly assaulted the defendant, even to the point of drawing blood. Defendant contends that, had the investigator testified truthfully, there would have been no probable cause to believe a crime had been committed.

As to the ineffectiveness of trial counsel, defendant testified that she met with her trial attorney approximately ten times before she appeared in court, but they very rarely spoke about her criminal case, discussing personal matters instead. She admitted that her attorney presented a plea offer of ten to twenty years and that he felt that "[t]he judge will probably give you ten." Defendant testified that her attorney suggested that she turn it down "because all of the evidence was in [her] favor." Defendant testified that she was not prepared for her testimony, her attorney never discussed her testimony with her, and she was not told what to expect on cross-examination. Defendant claimed that her attorney ignored a number of notes and suggestions she gave him regarding impeachment possibilities for witnesses and discrepancies in discovery. She also claimed that her attorney did not move for a change in venue after being advised that the victim's brother was running for mayor in the town where the crime was committed, which was in the county where the trial was conducted.

Defendant also claimed that her attorney failed to address some jury issues properly. The court addressed an issue where defendant's friend saw jury members talking to the family, but the court determined that no wrongdoing took place. She told her attorney that a juror "nodded their head yes to the family before [the] verdict was read," but her attorney did not respond. During sentencing, she noticed that the same juror whom she observed talking to the family during to the trial was present for the sentencing. She claimed that her attorney only brought it up because she threatened to do so if he did not.

Even though she trusted her attorney during the trial, she was not satisfied with his performance.

Defendant's trial attorney testified that he has been practicing law since 1985 and every time he took on a case he had to prepare as if it were going to trial. He was working in private practice and had been assigned the case from the public defender's office. From a discussion with the public defender regarding defendant's case, the attorney concluded that it was "a Battered Woman Syndrome-type case." His first action was to get an expert, Marsha Kleinman. He had at least a dozen meetings with defendant for trial preparation. He admitted to speaking of personal things with defendant and informed defendant such conversation was to help her feel at ease. It was also an attempt for him to determine defendant's overall credibility and prepare her for cross-examination. He said that he had a good relationship with defendant.

The attorney testified that, given the facts of this case, a Battered-Woman-Syndrome defense was the best way to go and he had numerous discussions with Dr. Kleinman regarding the defense. Prior to his cross-examination of the State's expert, he had a conversation over lunch with Kleinman and used information obtained from that discussion during his cross-examination. He did not recall the information defendant accumulated regarding Battered-Woman Syndrome. His evaluation of Kleinman was adequate, not extraordinary. He believed that defendant knew from the beginning that she would be testifying, but asserted that no one is ever really ready to testify at the time of trial.

A last-minute plea bargain was offered for aggravated manslaughter with a presumptive term of twenty years. Defendant's attorney discussed it with defendant and presented the pros and cons. He was hopeful for a shot at "a second degree, but . . . would never force anybody to take anything." He would not suggest what he would do in the client's situation or guarantee anything. He did not recall defendant's demeanor in her response to the offer. The attorney testified that it never occurred to him to seek a change in venue and did not recall if defendant ever requested a change in venue.

The only thing that the attorney knew about Sandra Morrow, the State's expert, was her report. He did not speak with her or investigate her background, even though she had some licensing problems in 1985. He felt that, because the trial took place in 2000, the licensing problem was not current enough to be relevant and that the verdict was not a result of either expert's testimony.

By and large, the attorney did not recall the problems that defendant claimed occurred with the jury, but testified that if he did not believe that the jury performed its job appropriately, he would have said something. He did, however, remember moving for a new trial, in part, based on inappropriate contact with the jury. He thought "the jury did some social engineering," but did not raise it with the court, deeming it an irrelevant argument.

Dr. Kleinman testified at the PCR hearing that she had been hired by the trial attorney to evaluate defendant. She opined that defendant suffered from Battered-Woman Syndrome at the time of the crime. She felt that the trial attorney appeared extremely anxious during the trial and she did not believe that the jury understood the connection between defendant being battered and the crime for which she was convicted, mostly due to counsel's ineffective questioning of her during trial. She stated that his questioning never established the nexus between defendant's abuse and the crime. Kleinman opined that this was a critical piece of information missing from her testimony.

Kleinman believed that the State's expert was not an honest representative of the field of psychology and distorted and manipulated information during her testimony. She was present while defendant's attorney cross-examined the State's expert.

Kleinman had prepared questions for the attorney to use both before and during trial. She said that that the attorney had "a very difficult time asking a proper question" and Kleinman was so "troubled by his performance" that she called the Public Defender's office ...


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