April 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAVAR WINDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1365.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2008
Before Judges Cuff, Lisa and Simonelli.
The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count two); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three). After merging count two with count one, Judge Donio sentenced defendant on count one to fifty-five years imprisonment, subject to an 85% parole disqualifier and five years parole supervision upon release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent three-year term on count three. Defendant argues on appeal:
THE COURT'S INSANITY DEFENSE JURY INSTRUCTION FAILED TO DISTINGUISH BETWEEN KNOWING AN ACT IS LEGALLY WRONG AND KNOWING IT IS MORALLY WRONG, AS REQUIRED BY STATE V. WORLOCK, 117 N.J. 596 (1990), DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10
DEFENSE COUNSEL'S FAILURE TO REQUEST AN INSANITY INSTRUCTION THAT DISTINGUISHED LEGAL AND MORAL WRONG PRIOR TO TRIAL, TO VOIR DIRE PROSPECTIVE JURORS FOR BIAS, AND TO COMPETENTLY STATE THE INSANITY DEFENSE BURDEN OF PROOF CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10 (Not Raised Below.)
A. Prior to Trial, Defense Counsel Knew, or Should Have Known, That Defendant Told His Experts He Was Complying With a Command Hallucination When He Committed the Offense, Which Warranted a Distinction Between Legal and Moral Wrong in the Insanity Instruction
B. During Jury Selection, Defense Counsel's Performance Was Deficient Because He Did Not Probe Prospective Jurors for Bias Against the Insanity Defense
C. Defense Counsel Incorrectly Told the Jury Three Times That the State had the Burden of Proof of Insanity
THE VOIR DIRE OF PROSPECTIVE JURORS, WHICH DID NOT PROBE THEIR VIEWS ABOUT THE PROPRIETY OF THE INSANITY DEFENSE, WAS DEFICIENT, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR JURY TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10
THE TRIAL COURT'S N.J.R.E. 404(b) LIMITING INSTRUCTION ON THE PURPOSES FOR WHICH OTHER CRIMES EVIDENCE IS ADMISSIBLE WAS IN ERROR, DEPRIVING THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10
THE TRIAL COURT'S ASSESSMENT OF MITIGATING AND AGGRAVATING FACTORS RESULTED IN A MANIFESTLY EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject these arguments and affirm.
On the evening of April 18, 2003, defendant hailed a cab in Atlantic City. He asked the driver to take him to the police station. As the cab arrived at the police station and was coming to a stop, defendant, seated in the backseat, placed a handgun to the back of the cab driver's head and shot him two times, causing his death. Defendant got out of the cab and walked over to a nearby police officer and reported the killing. Throughout this case, defendant never denied committing the homicidal act. His defense was that he was not guilty by reason of insanity. The evidence at trial focused on events in defendant's life in the days and months prior to April 18, 2003, and included testimony from mental health experts called by both sides regarding defendant's mental state at the time of the shooting.
Defendant lived and worked in Philadelphia, Pennsylvania. Until January 2003, at age twenty-five, he was employed by an armored car service and was legally authorized to carry a gun in Pennsylvania. He became unemployed that month. He was a high school graduate, but had an IQ in the low seventies, thus evidencing borderline mental functioning.
In February 2003, defendant was shot in the groin. Defendant provided various accounts of the circumstances under which he was shot, and the record is unclear as to what actually happened. Nevertheless, after that incident, defendant began to exhibit strange and paranoid behavior. His parents were divorced. His father lived in Philadelphia and his mother lived in Virginia. Defendant's former girlfriend, Lillian Andrews, the mother of defendant's child, lived in New Jersey. Defendant periodically visited Andrews and his son. According to Andrews, after defendant was shot she observed him talking out loud to himself, crying out of nowhere, and telling her that people were out to get him. She discussed defendant's behavior with defendant's father, who had also observed defendant acting in an unusual manner.
On April 16, 2003, defendant's father took defendant to the hospital after defendant called complaining of a bad headache. Doctors examined defendant, but found nothing medically wrong and released him. His father took defendant to a hotel because defendant said he did not feel safe in his home. Later that evening, defendant's father received a call from the police informing him they had taken defendant into custody after they found him walking along a busy and dangerous roadway in Philadelphia near the hotel. Defendant's parents deemed it advisable to seek to have defendant involuntarily committed. On the way to the hospital, defendant stated he was going to kill himself or someone else if he did not go to jail.
Defendant was admitted to the hospital, and he tested positive for phencyclidine (PCP). He told doctors he had used "a ton of wet," meaning PCP soaked in formaldehyde, an embalming fluid. Defendant was diagnosed with psychosis not otherwise specified (NOS) and possible PCP dependence. He was released from this seventy-two hour involuntary commitment on April 18, 2003.
His parents picked him up, and it was their intention that defendant would go with his mother to live in Virginia, where he could obtain further assistance for any mental health problems he might be experiencing. Defendant's parents observed him talking and mumbling to himself. When they arrived at defendant's father's house, defendant abruptly jumped into his own car and drove away. He went to his home, picked up his gun, and departed Philadelphia for Atlantic City.
Defendant contended that he believed his parents were trying to kill him. He later said that he drove to Atlantic City with the intention of killing another person so he could be safely locked in prison, away from his parents. He chose New Jersey, because he believed the jail environment would be better there than in Philadelphia.
Upon arriving in Atlantic City, defendant drove around for a while, and then drove onto the Atlantic City Expressway back toward Philadelphia. He said he did so because he was still trying to make up his mind about whether he was going to kill someone. He stopped at a rest stop on the Expressway, purchased some snacks, and decided to return to Atlantic City, which he did. He parked his car, hailed a cab, and asked the driver to take him to the police station. Defendant and the driver did not converse during the ride. As the cab slowed to a stop in front of the police station, defendant said to the driver, "I'm sorry," and shot him twice in the back of the head.
Defendant got out of the car and walked over to a uniformed officer who was sitting in a marked patrol car. He calmly stated, "Officer, I just shot someone in that cab over there." The officer removed from defendant the murder weapon, a .45 caliber Glock handgun, and placed him under arrest. Defendant was taken to the stationhouse.
Defendant began crying and knocking his head against the wall, but did not appear to the police to be under the influence of drugs or alcohol. After administering Miranda*fn1 rights to defendant, the police took a taped statement, which was later played for the jury. According to the detective who took the statement, defendant spoke clearly, did not rush his words, and did not hesitate. When asked whether he took any drugs or alcohol, defendant said he had taken medication earlier in the day.
Defendant told the police he left his home in Philadelphia because he was afraid his parents were going to kill him, and he wanted to take someone else's life so that his life would not be taken. He said he did not know who he was going to kill upon reaching Atlantic City. The cab driver was randomly chosen. He told the police that he said, "I'm sorry" just before pulling the trigger because he knew he was going to take the cab driver's life and felt bad because the driver had not done anything to him. Of course, not only did defendant know that his act was illegal and would subject him to going to jail, but going to jail was his avowed purpose for shooting his victim.
At trial, the defense called as expert witnesses Dr. Edward J. Dougherty, a psychologist, and Dr. Kenneth J. Weiss, a psychiatrist. The State called a psychiatrist, Dr. Pogos Voskanian.
Dougherty performed a variety of diagnostic tests and interviewed defendant. He described defendant's speech as "rambling" and "disorganized." He observed defendant listening to voices and talking to himself. He concluded that defendant suffered from paranoid schizophrenia. According to Dougherty, defendant's PCP use was only relevant insofar as it may have exacerbated defendant's pre-existing mental health condition.
Dougherty described paranoid schizophrenia as a major mental disease. He explained that schizophrenia means a loss of contact with reality and that an individual does not necessarily lose that contact at all times, "but there's periods where you're losing contact with reality." Dougherty explained that it is very common for schizophrenics to be paranoid about the prospect of people close to them intending to harm them. Thus, it is not unusual for them "to turn on family members." He further said that, statistically, about ten percent of paranoid schizophrenics, hallucinating and hearing voices, actually listen to the voices and obey them. He expressed the view that "it seems this is what happened to this man. He listened to these voices telling him what to do."
Dougherty expressed the opinion that at the time of the shooting, defendant was suffering from defective reasoning, "and although he knew the nature and quality of his acts, he did not know what he was doing was wrong at the time." When asked more specifically whether defendant knew "it was legally and/or morally wrong" to shoot the cab driver, Dougherty responded:
No. In his mind it was the only way he could get the services that he deserved and he needed, which was to be safe, by shooting somebody to get to a jail. That's how you got there. That's totally distorted thinking. It's irrational thinking. It's thinking which would be consistent with the diagnosis of a schizophrenic, in an active psychotic state.
In Dougherty's view, defendant knew that his conduct was legally wrong, and by saying he was sorry before shooting his victim and by expressing remorse in his statement to the police afterwards, he was demonstrating a feeling of guilt, but defendant believed he "had to do it and he had no control over it, because it's the only way he could be safe."
Weiss reviewed all pertinent police and medical records, twice interviewed defendant, and reviewed Dougherty's report. Weiss observed defendant to be withdrawn, illogical, disheveled, and disorganized. Although he was initially unsure about whether defendant's actions on April 18 were the result of schizophrenia or drug use, Weiss ultimately agreed with Dougherty that it was schizophrenia. He testified that defendant reported hearing voices prior to using PCP, and that any PCP ingested by defendant prior to the homicide likely dissipated and did not affect his behavior.
Like Dougherty, Weiss opined that defendant suffered from schizophrenia, a major mental illness, and that at the time of the shooting defendant did not know the difference between right and wrong. Also, like Dougherty, Weiss did not dispute that defendant understood the nature and quality of his acts and that defendant was fully capable of forming the intent to act with knowledge or purpose in killing his victim. It was Weiss' opinion, however, that defendant's "behavior was driven only by his mental disease, which included delusions, which are irrational ideas not shared by others, and by hallucinations, which are, in this case, hearing voices telling him things, either making derogatory statements about him or giving him commands such as to kill, which it was up to him to interpret."
Weiss discounted the fact that defendant said "I'm sorry" before shooting his victim and expressed remorse to the police afterwards. As to the former, he said defendant was basically saying to the cab driver "this has nothing to do with you personally. I'm trying to save my own life." As to the latter, remorse, by definition, is "a reflection looking back on what one has done. And, indeed, he is remorseful and, indeed, he does know now that what he did was the wrong thing." Weiss concluded that defendant "knew that if he killed someone, then he would be considered a bad person and that he would be locked up, so that he could then preserve his own life." However, "we're not dealing with a general principle here of whether killing is right or wrong. And, indeed, killing isn't always wrong. And he might have had the capacity to say well, if people see me kill somebody, they'll surely lock me up. That doesn't mean that he felt it was wrong in his case."
The State's expert, Voskanian, based upon his review of pertinent records and materials, including Dougherty's and Weiss' reports, and his two interviews with defendant, concluded that defendant was not schizophrenic. He opined that defendant's actions on April 18 were more likely the result of PCP use. He based this on defendant's acknowledgement that he recently used a "ton of wet," the severity of defendant's headache (a known effect of recent PCP ingestion in a large quantity, which Weiss also acknowledged), and defendant's reported bodily sensations (i.e. he felt like he was walking on water, typical for someone high on PCP). Voskanian concluded that defendant knew the killing was wrong, and even though defendant's motive was irrational, the killing itself was completely rational.
In his evaluation, Voskanian asked defendant why, if he believed his parents were after him and trying to kill him, he would not kill them. Defendant's response was that he loved them deeply. Voskanian also asked if defendant would have killed a child if that was the only potential victim he saw on the street in Atlantic City. Defendant said no, because that would be wrong, but that he would kill any adult to serve his needs. Thus, Voskanian believed that "[t]his goes to his appreciation of morality, of him having moral values in his own sense. Him understanding that he's committing a murder that is not just an act that is not going to result in death. He has a feeling for certain people whom he would not want to be harm[ed] and he's clear about it." Voskanian opined that regardless of the source of defendant's paranoia, whether drug induced or the result of mental illness, the cab driver had no connection to the paranoia, but was an innocent third party.
Defendant did not testify at trial. Evidence of his significant drug use, beginning with marijuana as a teenager, later escalating to cocaine and, shortly before April 18, 2003, escalating further to PCP, was elicited, including from the defense, with respect to the mental health evaluations by all three mental health experts. Thus, in addition to charging the jury on the insanity defense, Judge Donio also, without objection from defendant's attorney, charged the defense of voluntary intoxication, which could reduce murder to manslaughter. See N.J.S.A. 2C:2-8.
We first address what we view as defendant's principal appeal argument, that the jury charge on insanity was legally deficient because it failed to distinguish between knowing an act is legally wrong and knowing it is morally wrong. In New Jersey, the insanity defense provides:
A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence. [N.J.S.A. 2C:4-1.]
During the charge conference, see R. 1:8-7(b), defense counsel requested that the judge instruct the jury that it must distinguish between legal and moral wrong in evaluating the insanity defense. Counsel relied upon our Supreme Court's decision in State v. Worlock, 117 N.J. 596 (1990). After considering the holding in Worlock, Judge Donio concluded that the requested charge was not warranted by the facts in this case, and declined to deviate from the model charge on insanity. See Model Jury Charge (Criminal), "Insanity" (1988).
In Worlock, the defendant shot and killed two of his friends after one of them stole his wallet containing a damaging photograph of defendant. Supra, 117 N.J. at 599-600. The defendant openly admitted that at the time of the killings he knew his actions were illegal and were wrong under societal morals. Id. at 614. However, the defendant maintained that the killings were justified based on his personal code of morality. Ibid.
On appeal, the defendant argued that the jury instruction on the insanity defense was erroneous because it failed to distinguish between legal and moral wrong. Id. at 606, 612. The Court noted that the term "wrong" as used in the insanity defense jury charge generally incorporates notions of both legal and moral wrong:
The "right and wrong" test does not focus on the actual knowledge of the defendant, but rather on his ability to perceive the wrongfulness of his conduct. Under the test, a defendant is excused from criminal liability if at the time of the commission of the offense, he or she lacked the capacity to distinguish right from wrong. Only that defendant whose mind is impaired to the extent that he or she lacks the ability to comprehend that his or her conduct is wrong may successfully invoke the insanity defense.
Because the insanity inquiry focuses on the defendant's ability to comprehend whether his or her actions would ordinarily be disapproved by society, the concept of moral wrong must be judged by societal standards, not the personal standard of the individual defendant. As a general rule, it will not be sufficient, therefore, that a defendant's personal moral code justified a killing otherwise prohibited by law and societal morals. [Id. at 610 (citations omitted).]
The Court observed that in most instances, legal wrong is coextensive with moral wrong, particularly in the case of murder. Id. at 610-11.
The Court did, however, note one instance in which the distinction between moral and legal wrong may be critical:
[I]f the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane. . . . Although a "command from God" is the only generally-recognized exception, other delusion-based exceptions conceivably might arise. For the purposes of this opinion, however, we need not attempt to identify any such other exception. [Id. at 611 (citations omitted).]
In determining whether an insanity defense jury instruction should distinguish between legal and moral wrong, the Court concluded:
Because an act that is contrary to law will generally contravene societal morals, a defendant who claims that he or she lacked the capacity to comprehend either legal or moral wrong need not receive a charge distinguishing the two kinds of wrong. In the exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that "wrong" encompasses both legal and moral wrong. [Ibid.]
The Court held that the defendant was not entitled to a jury charge distinguishing between legal and moral wrong because he admitted that he knew the killings were both illegal and against societal morals, and because his belief in his own idiosyncratic code of morality did not constitute the defense of insanity. Id. at 614-15.
In this case, defendant argues that Judge Donio's instruction on the insanity defense was fatally flawed because it did not distinguish between legal and moral wrong as contemplated by the Court in Worlock. He argues that the exception recognized in Worlock is applicable to this case because defendant committed the offense while acting under a command hallucination and therefore did not know that what he was doing was morally wrong. In support of his argument, defendant points to Dougherty's testimony that defendant was hearing voices the day he committed the offense and to Weiss' testimony that the voices commanded defendant to kill someone. Defendant, however, concedes that there was no evidence that he was acting under a divine command.
In response, the State argues that Judge Donio correctly employed the model jury charge on the insanity defense, and that no distinction between legal and moral wrong was necessary. Noting the absence of any evidence that defendant was acting under a divine command, the State argues that this case falls squarely within the vast majority of cases in which legal and moral wrong are coextensive.
We agree with the State. We find no basis for application here of the narrow exception recognized in Worlock. We reject defendant's argument that although there was admittedly no evidence that defendant acted under a command from God, this case presents one of the "other delusion-based exceptions [that] conceivably might arise" as envisioned by the Court in Worlock.
This is not an exceptional case, akin to the generally recognized deific exception. Viewing defendant's evidence in the light most favorable to him, his experts claimed that he was hearing voices telling him that the way to protect himself from his irrational belief that his parents were out to kill him was to kill someone else, which would result in his imprisonment for life, thus shielding him from his parents. And, although defendant fully understood the nature and quality of his homicidal act, and knew it was wrong and would subject him to punishment, according to defendant's experts, he did not know it was necessarily morally wrong because he did what he had to do for self-preservation, as commanded by the voices.
There is no basis upon which to conclude that defendant believed these voices were from God or from any authority higher than that which prescribes the laws of society, making it wrong to murder an innocent victim solely for one's own benefit. Defendant's reason for killing the cab driver was to help himself. This was a reason personal to him, not something as contemplated by the deific exception, that was required by God for some greater societal benefit. This was not the command of a higher authority that superseded society's laws.
The comprehensive model charge properly explained that the issue for the jury's consideration was not whether defendant actually thought or considered whether his homicidal act was right or wrong, but whether he had sufficient capacity to understand that it was wrong. No further distinction between legal and moral wrong was required, because, in the facts presented, the concept of wrong is the same under either standard. We therefore find no error in the jury charge on this issue.
We next consider defendant's contention that he was deprived of the right to a trial by an impartial jury because the voir dire of prospective jurors regarding their views on the insanity defense was deficient.
The judge explained to the array that the insanity defense was asserted, and, with the consent of both counsel, asked each prospective juror a series of questions on the subject. Defense counsel did not object to any of the questions that were asked, and did not propose any additional questions that the judge refused to ask.
The judge asked all jurors whether they or any relatives or family members ever had any experience with psychiatry or psychology, whether they ever studied the subjects, whether they ever sought the assistance of a psychiatrist or psychologist, whether they ever heard or read anything about the use of psychologists or psychiatrists in criminal trials and whether that would affect their ability to judge the testimony of such witnesses fairly and impartially. The judge also asked whether any juror would automatically reject psychiatric or psychological opinion testimony simply because experts gave conflicting testimony.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to a trial by an impartial jury. U.S. Const. amends. VI, XIV; N.J. Const. art I, ¶ 10. This includes "the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). Accordingly, a trial court "should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially." State v. Erazo, 126 N.J. 112, 129 (1991).
The manner of conducting voir dire is within the broad discretion of the trial court. State v. Williams, 113 N.J. 393, 410 (1988). An appellate court is limited to determining whether "the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury." State v. Biegenwald, 106 N.J. 13, 29 (1987). While a trial court's decisions are not ordinarily disturbed on appeal, an appellate court should not hesitate to correct mistakes that undermine the very foundation of a fair trial --the selection of an impartial jury. State v. Tinnes, 379 N.J. Super. 179, 184 (2005).
Defendant argues that the voir dire of prospective jurors was deficient because neither Judge Donio nor counsel asked jurors questions designed to probe their views on the insanity defense. The State, on the other hand, argues that Judge Donio's questions regarding the juror's views on psychology and psychiatry sufficiently met the standards set forth in State v. Moore, 122 N.J. 420 (1991), and State v. Murray, 240 N.J. Super. 378 (App. Div.), certif. denied, 122 N.J. 334 (1990), and therefore did not commit plain error.
In Moore, supra, the Court offered guidance on the conduct of voir dire in insanity cases. 122 N.J. at 453-56. The Court observed, "it is well established that many laypersons have a great deal of difficulty in understanding the insanity defense, and many people might not be able to consider it as a viable defense, particularly to such a heinous act as the killing of a wife and child." Id. at 453-54. Accordingly, the Court found that a trial court should "screen out prospective jurors who could not consider an insanity defense due to their prejudices or biases against it." Id. at 454. In so doing, a trial court should inquire "whether a juror can judge the testimony of psychiatric witnesses by the same standard that he or she would apply to the testimony of any other witness." Ibid.
The Court referenced, for further guidance, our decision in Murray, supra, 240 N.J. at 392 (1990). Ibid. The Court noted that the trial court in Murray "rejected several voir dire questions proposed by the defendant and instead asked its own questions, which probed whether the prospective jurors had read or studied about psychology, psychiatry, medicine, or related fields, and inquired about the jurors' views on those sciences and whether those views would hinder their ability to follow the law as instructed by the court." Ibid. (internal citations omitted). The Court concluded that in asking only those questions "the trial court in Murray acted properly within its discretion and sufficiently determined any juror bias or prejudice." Ibid.
The voir dire in this case met the standards set forth in Moore and Murray. See also State v. O'Brien, 377 N.J. Super. 389, 413-14 (App. Div. 2004), rev'd on other grounds, 183 N.J. 376 (2005) (upholding substantially similar voir dire process because the judge's questions adequately addressed the concern in Moore that jurors be asked to ascertain their ability to fairly and impartially consider insanity as a defense). Judge Donio appropriately exercised his discretion in the voir dire process.
Defendant argues that he was deprived of the effective assistance of counsel because (1) trial counsel should have requested the insanity defense jury instruction distinguishing between legal and moral wrong before the experts testified, (2) trial counsel did not probe prospective jurors for bias against the insanity defense, and (3) trial counsel incorrectly told the jury three times that the State had the burden of proof with respect to insanity. Defendant asserts that but for these errors, he might have been found not guilty by reason of insanity. We find no merit to these arguments, see R. 2:11-3(e)(2), but offer these brief comments.
Ordinarily, claims of ineffective assistance of counsel are matters addressed in the context of petitions for post-conviction relief. See State v. Preciose, 129 N.J. 451, 459-60, (1992). Many ineffective assistance of counsel claims involve collateral issues outside of the trial record and may require development at an evidentiary hearing. Id. at 460, State v. Moore, 273 N.J. Super. 118, 125 (App. Div.), certif. denied, 137 N.J. 311 (1994). When, however, the claims may be resolved solely by reference to the trial record, they may be considered on direct appeal. State v. DeAngelis, 281 N.J. Super. 256, 265-66 (App. Div. 1995); State v. McBride, 213 N.J. Super. 255, 272 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987). This is such a case.
The charge conference was held "[p]rior to closing arguments," as required by Rule 1:8-7(b). Although there is nothing to preclude counsel from earlier alerting the court to a requested charge, there was no deficient conduct here. Defense counsel made a proper request, based upon the controlling decisional authority. We reject defendant's contention that if alerted earlier the judge would have agreed to defendant's request because he would have made note of the significance of the issue and would have better recalled the pertinent testimony supporting the requested charge. The debate about the charge centered around whether defendant believed he was acting under a command from God. We reject defendant's narrow reading of the transcript of the colloquy, which suggests that the only issue was whether or not the trial judge remembered testimony about command hallucinations generally. And, as we have explained, the judge properly rejected defendant's request.
We also find no deficient conduct in counsel's failure to request additional questions of prospective jurors regarding the insanity defense. For the reasons we have already stated, the questions asked were adequate.
Finally, defendant points out that his trial counsel incorrectly stated on several occasions that the State bore the burden of proof with respect to insanity. Thus, defendant argues that the jury's confidence in the credibility of the insanity defense might have been undermined by a possible belief that defense counsel was not being forthright in his presentation. In our view, this contention is nothing more than speculation. Defense counsel also correctly stated the burden of proof on other occasions. And, of course, the judge instructed the jury that comments of counsel on the law should be disregarded if they conflicted with the judge's legal instructions, which took precedence. The judge correctly instructed on the burden of proof. Thus, to the extent that counsel's conduct was deficient in this regard, we perceive no reasonable likelihood that the result of the trial would have been different but for the deficiency.
Under the Strickland/Fritz*fn2 test, ineffective assistance will only be established if counsel's acts or omissions fell outside the wide range of professionally competent assistance, and there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Those criteria are plainly not satisfied here.
Defendant argues that the judge's limiting instruction regarding his past drug use was deficient and that testimony that he might have dealt drugs deprived him of a fair trial. As we have stated, evidence of defendant's prior drug use was part of this case. All of the mental health experts considered it and rendered opinions about whether defendant's conduct was or was not induced, in whole or in part, by the effects of illegal drugs.
Throughout the trial, whenever the subject came up during testimony, and again in the final charge, Judge Donio gave appropriate limiting instructions. On one occasion, when the prosecutor elicited testimony from Andrews, defendant's former girlfriend, that defendant might have been engaged in selling PCP at some time, the judge gave a strong and immediate curative instruction, striking the testimony and directing the jury to disregard it. Defendant now argues that the evidence that he might have sold drugs was so prejudicial that its devastating impact could not have been erased by the curative instruction that was given, and that the limiting instructions regarding all of the other evidence of drug use were inadequate. We do not agree.
Judge Donio's prompt curative instruction was an appropriate response to the testimony elicited from Andrews. See State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002) (finding that judge's curative instruction was appropriate response to witness' improper testimony that he and defendant had been "locked in the same barracks"). "In the absence of an affirmative showing to the contrary, we assume the jury heeded the court's instruction." State v. MacIlwraith, 344 N.J. Super. 544, 547 (App. Div. 2001).
Evidence of defendant's drug use was properly elicited in this case through the experts, who utilized that information as part of the basis for their opinions regarding defendant's mental condition at the time of the offense, subject to an appropriate limiting instruction. See State v. Burris, 357 N.J. Super. 326, 333-39 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003). We are satisfied from our review of the record that the repeated limiting instructions here were appropriate and adequate, and constantly reinforced in the minds of the jurors the limited purpose for which this evidence was before them. There was no error in this regard.
Finally, defendant argues that his sentence was excessive. We are satisfied from our review of the record that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that the court did not apply incorrectly the sentencing guidelines enunciated in the Code of Criminal Justice, that the sentence imposed was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).