January 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE LEWIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-04-496.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 19, 2007
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant Andre Lewis appeals from the June 28, 2006 order denying his petition for post-conviction relief (PCR) in which he alleged ineffective assistance of trial counsel. We affirm.
Following a jury trial, defendant was convicted of first-degree purposeful and knowing murder and a variety of weapons offenses in connection with the shooting death of his exfiancée. There was testimony by the victim's son, who was a passenger in her automobile, that defendant shot the victim in the face through the windshield at point-blank range shortly after she broke off their engagement. Defendant confessed to the crime. At trial, his counsel conceded that defendant had shot and killed the victim but unsuccessfully asserted as a primary defense through psychiatric testimony that defendant suffered from mental illness at the time of the shooting. The State presented expert testimony to the contrary.
The court sentenced defendant to a custodial term of thirty years with a thirty-year parole disqualifier, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder count, and imposed concurrent terms on the weapons counts and a consecutive term of eighteen months with an eighteen-month parole disqualifier under the Graves Act for the fourth-degree aggravated assault conviction. We affirmed defendant's conviction on appeal but remanded for amendment of the judgment of conviction to eliminate the NERA application, i.e., the five-year period of parole supervision. State v. Lewis, No. A-1889- 00T4 (App. Div. October 7, 2002). On November 26, 2002, the Supreme Court denied defendant's petition for certification. State v. Lewis, 175 N.J. 80 (2002).
This PCR petition ensued and was denied by Judge Barisonek on June 28, 2006, following oral argument but without an evidentiary hearing. Defendant presented two arguments in support of his PCR petition: (1) that trial counsel, Donna Wrenn, Assistant Deputy Public Defender for Union Region, advised him not to testify, which constituted ineffective assistance of counsel because it precluded him from the right to testify and because she failed to extract critical information from defendant's psychiatric expert to link defendant's mental issues to his mental state on the date of the murder; and (2) that ineffective assistance of trial counsel resulted from the failure to object to the standard jury charge on the diminished capacity defense.
Defendant's claims were rejected by the trial court. Pertinent to this appeal, Judge Barisonek expressly referenced the following colloquy he had with defendant at trial respecting his determination not to testify on his own behalf*fn1
THE COURT: Oh, Miss Wrenn, I also need --we might as well deal with this. Mr. Lewis, couple of things. Obviously you have not testified in this case, and I assume you discussed the issue as to whether you wanted to testify with your attorney. Is that accurate, sir?
THE COURT: It's your desire not to be a witness for the defense?
THE COURT: You have a second choice to make. My clerk will give to your attorney a form. I can either tell the jury nothing about your desire, meaning I'd say nothing about your desire to refrain from testifying, or I will tell the jury almost verbatim what is on that form. I'm going to ask you to go over that with your attorney, and then before I give the charge I must know what the decision is, whether you want me to give what's on the form or say nothing. Okay?
THE COURT: Mr. Lewis, you've signed the form I gave to your attorney indicating you want me to tell the jury what's written on this form. Is that accurate, sir?
THE COURT: Did you have enough time to go over it with your lawyer?
THE COURT: And your lawyer explained to you the choices you have?
THE COURT: And it's your desire to have me give this charge?
The court was satisfied that even if the facts were as represented by defendant -- that he had repeatedly told his trial counsel he wanted to testify and she told him not to for strategic reasons -- defendant had been given the right to testify by the court and had expressly and unequivocally expressed his ultimate, voluntary decision to the court not to testify. Judge Barisonek further commented that trial counsel's recommendation to defendant not to testify was sage trial strategy to avoid subjecting defendant to cross-examination on facts that could not have been elicited by the State from the defense expert, Dr. Latimer.
On appeal, defendant acknowledges the colloquy at trial but contends that trial counsel overbore his will to testify. He further claims that if he had testified, he would have been in a position to present a "unique perspective" of critical facts about his emotional state at the time of the fatal shooting, not elicited from Dr. Latimer, which would have aided his diminished capacity and insanity defenses and probably affected the outcome of the case. Defendant thus argues he demonstrated a prima facie case of ineffective assistance of trial counsel warranting an evidentiary hearing.
We consider defendant's claims in light of well-settled principles. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002). Our evaluation is governed by the test that the United States Supreme Court established:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
Our Supreme Court subsequently adopted the Strickland standard in interpreting the right to the effective assistance of counsel under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 52-58 (1987). In order to claim ineffective assistance of counsel, defendant must establish that counsel's performance was "so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction[.]" Id. at 58.
Under the first prong, when we evaluate the reasonableness of counsel's alleged conduct, we must apply an objective standard. Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. We judge counsel's conduct on the facts of the particular case, viewed at the time of the challenged conduct. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid. In our analysis, we acknowledge the strong presumption that counsel "made all significant decisions in the exercise of [his or her] reasonable professional judgment." Ibid.
In order to establish the second prong of prejudice, a defendant must do more than show that the error or errors had some conceivable effect on the outcome of the trial. State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, "[t]he error committed must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696. When making a determination whether specified errors prejudiced the defendant, we presume that the judge or jury acted according to law. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). Nevertheless, it is also clear that in order to qualify for an evidentiary hearing, a defendant must present a prima facie case of remediable ineffectiveness. State v. Marshall, 148 N.J. 89, 158 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We are satisfied from our review of the record that defendant has failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Hence an evidentiary hearing was not warranted. Based on defendant's firm, direct responses to the court's questions during the colloquy at trial, we are convinced, as was Judge Barisonek, that defendant's decision not to testify was his own. The record is devoid of any evidence that trial counsel "overbore" defendant's will and caused him not to testify. Defendant cannot show that his trial counsel's advice not to testify fell below an objectively reasonable standard of performance; thus, he is unable to even meet the first prong of Strickland.