August 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, powerful." She also concluded that the failure to raise the diminished capacity defense in conjunction with the intoxication defense was trial strategy:
The conviction was based primarily on the testimony as indicated of the eyewitness and, furthermore, it is evident from defense counsel's cross examination of the witnesses, that of Jessica Hreniuk, the responding officer, Lieutenant LaPoint, and the statements attributed to the defendant that the intoxication defense was the strategy employed and argued to the jury; the fact that further, Lieutenant LaPoint was asked to describe the defendant right after the incident and he described the defendant as coherent; the fact that instead of utilizing the diminished capacity defense alone or in conjunction with intoxication.
In light of the proofs in this case it cannot be found that the failure to do so undermined the integrity of the trial or deprived the defendant of a fair trial.
Certainly, trial counsel could have believed that the inclusion of a diminished capacity defense may well have served to confuse the issues before the jury and perhaps even diluted the intoxication evidence, but that is speculation, and the case law, I am satisfied, requires this Court to give deference to counsel's tactical decision.
Therefore, I do not find that on the basis of the newly considered medical reports that the Court needs to order an evidentiary hearing in this matter, and I am satisfied that based upon consideration of the medical reports that the denying of the ineffective assistance of counsel claims . . . is the Court's ruling at this time.
Judicial review of a defense counsel's performance is "highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694 (1984). In order to establish a claim of ineffective assistance of counsel, a petitioner must first show that counsel's performance was "deficient." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). This requires a showing that defense counsel made "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, petitioner must establish that "counsel's errors were so serious as to deprive the defendant a fair trial, a trial whose result is reliable." Ibid. Moreover, where the deficient performance involves issues of trial strategy, there is a strong presumption that the particular strategy employed was consistent with reasonable professional standards. State v. Arthur, 184 N.J. 307, 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). In other words, a defendant claiming ineffective assistance of counsel because of the defense strategy chosen "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid.
In Arthur, supra, the Court addressed trial counsel's decision not to call a witness. There, defendant was charged with selling drugs to a buyer. Id. at 313. At trial, the buyer testified that another man had sold her the drugs. Id. at 315. While the man implicated as the dealer had initially told the defense attorney that he was the one who had sold the drugs to the buyer, he changed his story upon learning that he would be prosecuted. Id. at 316-17. The defense attorney did not call the individual as a witness, and defendant was convicted. Ibid. On petition for post-conviction relief, defendant claimed that the failure to call the witness was ineffective assistance of counsel. Id. at 312. In affirming the Appellate Division decision upholding the trial court ruling denying defendant's post-conviction relief petition, the Court noted, "because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). That is, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. It went on to find that the decision not to call the dealer was a reasonable strategy, given the fact that the dealer was likely to testify that he had not sold the drugs. Id. at 320.
What is insightful about the Arthur decision is that the trial court conducted a two-day evidentiary hearing prior to denying defendant's petition. Id. at 316. "[N]othing in [Rule] 3:22-1 et seq. requir[es] that a hearing be conducted on a post-conviction relief petition." State v. Flores, 228 N.J. Super. 586, 589 (1988), certif. denied, 115 N.J. 78 (1989). The rule, however, recognizes judicial discretion to conduct such hearings.*fn1 State v. Preciose, 129 N.J. 451, 462 (1992). See State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971) (holding that post-conviction relief petition asserting vague denial of due process was insufficient to warrant an evidentiary hearing).
In Flores, supra, 228 N.J. Super. at 589-90, we upheld the trial court's denial of an evidentiary hearing where the post-conviction relief petition alleged excessive sentencing. However, we "emphasize[d] that resolution of the issues raised by [the] defendant did not require the taking of oral testimony." Id. at 590. By contrast, a defendant's claim of ineffective assistance of counsel is more likely to require an evidentiary hearing because the issues usually involve facts not readily discernable from the trial record and may require testimony from a defendant's attorney. Preciose, supra, 129 N.J. at 462. As we have previously noted,
[g]enerally, a claim of ineffective assistance of counsel cannot be raised on direct appeal. Rather, defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice. [State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).]
Consequently, neither the PCR judge nor a reviewing court is positioned to "speculate as to the reasons for counsel's conduct or accept without a more fully developed record the State's explanations for that conduct." Ibid. Thus, "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.
Here, defendant has produced evidence in the form of medical reports and records that indicate that three years prior to committing the crimes, defendant was diagnosed as suffering from multiple cognitive deficits, including memory impairment and disturbance in executive functioning. The PCR judge concluded that it appeared that trial counsel had these reports "well in advance of trial" along with the "blood test results, the disability report, as well as the EEG report . . . and the MRI [report]."
Although the State, in its brief, questions what the term "executive function" means, this terminology is common in medical parlance. It is defined as one's ability to plan, initiate, sequence, monitor, and inhibit complex behavior. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM IV). Executive function is also associated with higher cognitive functions, such as insight, will, abstraction, and judgment. Donald R. Royall, M.D. et al., Executive Control Function: A Review of Its Promise and Challenges for Clinical Research, J Neuropsychiatry Clin Neurosci 14.4, Fall 2002.
The prognosis for defendant's mental condition in 1995 was described as "totally disabled mentally and overall, unable to work and will continue so indefinitely. The outlook is for a downward course. No fundamental or marked improvement can be reasonably expected and the prognosis for improvement is not favorable." Nearly one year after killing his wife, at the request of defense counsel, defendant underwent a psychiatric examination performed by Dr. Verdon, who concluded that defendant's brain was so impaired by the combination of alcohol intoxication, brain cell degeneration, repeated trauma, multiple brain injuries, and significant hyperglycemia, that his ability to function was impaired. In Verdon's opinion, defendant's "ability to act in a knowing or purposeful manner was rendered asunder" and defendant "was unable to recognize the lethal consequences of his actions."
The State argues that the failure of trial counsel to advance the diminished capacity theory was, at best, harmless error, because once the jury concluded that defendant did not act knowingly or purposely, defendant could present nothing more to the jury to avoid a finding that his actions were reckless under circumstances manifesting extreme indifference to human life. The judge apparently agreed because she found that defendant failed to demonstrate how this evidence would have resulted in a more favorable outcome. We respectfully disagree.
In 1990, the Legislature amended N.J.S.A. 2C:4-2, which, at that time, required the assertion of a diminished capacity claim as an affirmative defense that required proof by a preponderance of the evidence. See N.J.S.A. 2C:4-2, as amended by L. 1990, c. 63 § 1, eff. July 17, 1990. As amended, the statute imposes no burden of proof upon a defendant and recognizes that evidence of diminished capacity serves to negate the mens rea element of the offense charged. State v. Delibero, 149 N.J. 90, 101 (1997). See also State v. Johnson, 309 N.J. Super. 237, 268 (App. Div.), certif. denied, 156 N.J. 387 (1998). Thus, unlike a voluntary intoxication defense that may negate purposeful or knowing conduct, but not recklessness, diminished capacity negates any mental state and results in a defendant being set free, an obviously more favorable outcome than conviction for aggravated manslaughter. See State v. Humanik, 199 N.J. Super. 283, 299 n.6 (App. Div.), certif. denied, 101 N.J. 266 (1985), rev'd o.g. sub. nom. Humanik v. Beylu, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed. 2d 25 (1989).
Defendant presented medical records that diagnosed a progressively deteriorating mental condition three years prior to the fatal killing of his wife. He contends that these records were available to his trial counsel, he discussed his mental condition with counsel, and requested a diminished capacity defense. We are persuaded that defendant presented sufficient evidence to warrant an evidentiary hearing. Such a hearing will permit the development of a record from which the trial court can more meaningfully determine whether the ineffective assistance of counsel, as claimed by defendant, was trial strategy that comports with reasonable professional standards, see Sparano, supra, 249 N.J. Super. at 419, or was ineffective assistance of counsel under the Strickland test, see Arthur, supra, 184 N.J. at 318-19.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.