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State v. Hreniuk

August 16, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY HRENIUK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 98-08-1075.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2007

Before Judges Parrillo and Sapp-Peterson.

Defendant appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing to determine whether trial counsel's failure to raise a diminished capacity theory was trial strategy or ineffective assistance of counsel so serious as to deprive defendant of a constitutionally guaranteed fair trial. Strickland v. Wash., 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).

Defendant's conviction and sentence arose out of the brutal stabbing of his estranged wife. According to the trial testimony of defendant's daughter Jessica, defendant had ostensibly come to the marital home to clean out the pool. She and defendant had a brief conversation about her yearbook, which escalated into an argument when defendant looked at a picture of one of her girlfriends. Defendant told Jessica that her girlfriend was responsible for the breakup of his marriage. Jessica asked her father to leave and threatened to call the police if he did not do so. He left and walked outside to the garage. Her mother arrived home shortly thereafter and together they also looked at her yearbook until her mother went upstairs to change clothes. A short time later, while talking on the phone with a friend, she heard her mother scream her name. She hung up the phone and ran upstairs to the bathroom, from where she heard noises.

When Jessica arrived at the bathroom, she saw defendant stabbing her mother with a "very large" knife. She tackled defendant and threw him into the bathtub before running to call 911. Defendant got out of the tub and resumed his attack upon her mother, whom Jessica saw crawling while she was on the phone. Her mother passed out and defendant started to stab himself. Police arrived shortly thereafter and took defendant into custody. He acknowledged that he had consumed about a pint of wine. Defendant was transported to a nearby hospital where he was treated for his injuries and removed to a private room where he remained with an officer, Nicholas Mirandi. Mirandi testified that during this time, defendant made inquiries about his wife and explained that his wife did not inflict any of the stab wounds to his chest and hand. Defendant also told Mirandi that he did not want to live anymore and asked that Mirandi "put a bullet into his head and end it." Mirandi testified that at the time defendant made these statements, defendant was coherent.

Three years prior to killing his wife, defendant was examined as part of his application for Social Security disability. In the summary of the examination, the examining physician, Dr. Edward Dengrove, opined, "[defendant] suffers from a dementia due to a general medical condition with multiple cognitive deficits including memory impairment and disturbance in executive functioning as a result of the numerous medical conditions[.]" Defendant claims that his trial counsel was aware of this report prior to trial and that he and counsel discussed his Alzheimer's diseases and blackouts both prior to and during the trial, but defense counsel failed to raise diminished capacity.

Additionally, at defense counsel's request, defendant also underwent a psychiatric/addiction medicine evaluation performed by Dr. John J. Verdon, Jr., who opined that defendant suffered from multiple medical diseases, including alcohol dependence, in remission while in custody; diabetes mellitus, due to recurrent pancreatitis; organic brain dysfunction as a result of multiple assaults, including recurrent alcohol intoxication, repeated head injury, and progressive degenerative dementia (Alzheimer's disease). He concluded by stating that,

[W]ith a reasonable degree of medical certainty, that at the time of Hreniuk's fatal assault upon his wife, his brain was so impaired by the combination of alcohol intoxication, brain cell degeneration as a result of Alzheimer's disease, repeated trauma, multiple brain injuries, and significant hyperglycemia from his uncontrolled Diabetes Mellitus, that the defendant's functioning was so impaired, that his ability to act in a knowing or purposeful manner was rendered asunder. Hreniuk was unable to recognize the lethal consequences of his actions.

Although defense counsel argued voluntary intoxication as a defense to the murder charge, no medical reports related to defendant's intoxication or dementia were introduced into evidence, nor did any expert offer testimony related to defendant's alcoholism and dementia.

The jury acquitted defendant of first-degree murder, but found defendant guilty of the lesser included offense of aggravated manslaughter. The jury also found defendant guilty of unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and aggravated assault. The trial court imposed an aggregate custodial sentence of thirty years with an eighty-five percent parole disqualifier and, upon release, five years of supervised parole. On appeal, we affirmed the sentence and conviction in an unreported opinion. State v. Hreniuk, No. A-2888-00T4 (App. Div. April 4, 2002). The Supreme Court denied defendant's petition for certification. State v. Hreniuk, 174 N.J. 194 (2002).

Defendant filed a petition for post-conviction relief, claiming (1) excessive sentence, (2) judicial bias, (3) ineffective assistance of counsel, and (4) medical hardship. As to the ineffective assistance claim, defendant argued that trial counsel did not take his desire to testify seriously, interviewed him for the first time two weeks before trial, failed to obtain records that should have been presented to the jury, failed to raise the defense of diminished capacity as requested by defendant, and failed to obtain medical records that would have bolstered this defense. The PCR judge, who was also the trial judge, in an oral opinion, denied defendant's petition, finding that defendant's claim was "unsupported to establish a prima facie claim of ineffective assistance of counsel." The court specifically found that,

The evidence presented to the jury in this case was vivid with respect to the defendant's activities on the date of the death of Debra Hreniuk. The effort at this time to maintain that a viable diminished capacity defense was available and should have been further investigated is devoid of any nexus to the events surrounding the events which were the subject of the matter tried in this case and based upon this Court's determination that the defendant has failed to present a prima facie case with respect to the prongs set forth in Strickland that the application for post-conviction relief is denied.

Defendant filed a notice of appeal. We granted defendant's motion seeking a temporary remand to the Law Division for the PCR judge to reconsider his petition in light of the medical records and reports of Drs. Dengrove and Verdon, as well as reports of a blood test, EEG and MRI. On reconsideration, the PCR judge once again entered an order denying defendant's petition and also denied defendant's request for an evidentiary hearing. In reaching her decision, the judge reviewed the proofs presented and concluded that the "State's proofs were, as I indicated, ...


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