May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID MOSLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-06-00611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Collester and C.S. Fisher.
At the conclusion of a trial, a jury found that, on January 3, 1999, while a resident of East Jersey State Prison, defendant threw a pot of boiling oil on another inmate, causing severe injuries. Defendant was ultimately apprehended as he approached the inmate with a shank. The jury found defendant guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Defendant was sentenced to a seven-year prison term with an 85% period of parole ineligibility on the aggravated assault conviction and a concurrent five-year term on the weapon conviction. The judge ordered that defendant begin serving this sentence upon completion of the sentence he was serving at the time of the incident in question.
Defendant appealed, arguing that the trial judge's instructions to the jury were erroneous and that the sentence imposed constituted an abuse of discretion. On February 7, 2003, by way of an unpublished opinion, we rejected defendant's arguments and affirmed. State v. Mosley, No. A-1306-01T4. The Supreme Court denied defendant's petition for certification. 176 N.J. 430 (2003).
On August 19, 2003, defendant filed a pro se petition for post-conviction relief (PCR). He later filed a brief and an amended petition, ultimately raising the following issues: (1) his trial counsel was ineffective for failing to obtain a psychiatric examination of defendant and for failing to raise questions about defendant's mental state at trial; and (2) his trial counsel was ineffective in failing to request relief when he observed that a juror had fallen asleep during the trial.
The PCR judge heard argument on May 6, 2005, June 17, 2005, and on August 5, 2005; on the last of these days, the PCR judge rejected the issues regarding counsel's failure to have defendant psychiatrically examined prior to trial. On September 23, 2005, the PCR judge heard the testimony of defendant's trial counsel, as well as additional argument from counsel regarding the alleged sleeping juror, and rejected defendant's contentions. He also refused defendant's request that the juror be called to testify. An order denying the PCR petition in its entirety was entered on March 27, 2006.
Defendant appealed, raising the following arguments for our consideration:
I. DEFENDANT'S CONVICTION AND SENTENCE MUST BE REVERSED DUE TO THE INEFFECTIVENESS OF HIS TRIAL DEFENSE COUNSEL, WHO FAILED TO OBTAIN A DEFENSE PSYCHIATRIC EXAMINATION OF DEFENDANT AND FAILED TO RAISE THE APPROPRIATE MENTAL STATE ARGUMENTS AT TRIAL.
II. DEFENDANT'S TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT REQUESTING ANY RELIEF WHEN HE OBSERVED THAT A JUROR HAD FALLEN ASLEEP DURING THE COURSE OF THE TRIAL; ADDITIONALLY, THE TRIAL JUDGE ERRED WHEN HE DID NOT CONDUCT A VOIR DIRE OF THE SLEEPING JUROR, EVEN THOUGH SUCH RELIEF WAS NOT REQUESTED BY DEFENSE COUNSEL.
We find insufficient merit in Point II to warrant discussion in a written opinion, R. 2:11-3(e)(2), but remand for further consideration of one aspect of Point I.
In pursuing the issues regarding defendant's state of mind, defendant relied upon the expert report of Dr. Kenneth J. Weiss, who discussed in his report his examination and observations of defendant. Dr. Weiss offered the following opinion about defendant's state of mind at the time of the prison incident:
[Defendant] was suffering from a mental condition of adjustment disorder with disturbance of conduct and anxiety. An adjustment disorder is an abnormal reaction to a stressful situation, understood generally as breaking down under stress. As I see it, [defendant's] stress was genuine and adequately documented as a cause of the disorder. This condition was superimposed on his subnormal intellect, borderline intellectual functioning, a condition characterized by an IQ in the rage of about 70 to 85, with a score of 100 representing the average. Another way to put it is that his intellectual capacity is on the upper border of mental retardation, a more severe version of his condition. The IQ score, by itself, does not adequately tell the story of this man's deficits. For example, he would have had trouble in coping with stress and with complex social interactions. On the street he would have countered his frustration by using alcohol. In this case, he tried everything he knew to diminish his stress but was overcome by it in the end. In my opinion, expressed within reasonable medical certainty, these factors could have been the basis for medical/psychological inquiry prior to his trial.
As can be seen, Dr. Weiss did not opine that defendant was unable to act purposefully or knowingly, and thus with a diminished capacity, when he attacked the inmate. Instead, the report at best indicates that defendant was of low intelligence and that he was unable to deal with the stress of imprisonment on the occasion in question. Although we are troubled by the judge's conclusory disposition of this aspect of the PCR petition,*fn1 we are satisfied that Dr. Weiss's report did not adequately support a contention that defendant had a colorable diminished capacity defense or that would probably have altered the outcome of the trial.
In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987).
The Strickland/Fritz test requires that the court determine whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and, if so, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The "prejudice" requirement of the second aspect of this test "was based on our conclusion that '[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696).
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process" that it cannot be relied on as "having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. In holding that a PCR applicant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," the Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, supra, 105 N.J. at 52. In short, a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes, but is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome.
In applying this standard to the substance of Dr. Weiss's report, we agree with what we discern was the PCR judge's conclusion -- that defendant made an insufficient showing that the pursuit of a diminished capacity defense would have had a reasonable probability of success in the Strickland sense, or that the failure to pursue it otherwise undermined confidence in the trial's outcome. Without an opinion from Dr. Weiss that defendant lacked the capacity to commit the offenses in question, we agree that defendant failed to demonstrate that he was deprived of the effective assistance of counsel.
However, there was another aspect of Dr. Weiss's report that went unresolved in the PCR judge's conclusory decision. That is, it was also argued, by way of Dr. Weiss's report, that defendant was not capable of making a knowing and voluntary waiver of his Miranda*fn2 rights. The record contains no ruling by the PCR judge on this point.
In the same report in which Dr. Weiss discussed whether a diminished capacity defense should have been pursued, he also gave the following opinion:
[I]t is my opinion, expressed within reasonable medical certainty, that [defendant] did not understand his rights and that his waiver of Miranda rights was not knowing, intelligent or voluntary. This is more a function of his lack of native intelligence, and I doubt that he would have understood the rights he was waiving in the best of circumstances. The basis for the opinion is [defendant's] relatively poor intellect coupled with his high state of emotional arousal at the time. That is, his stressed emotional state caused him to express things to the police that were against his interest. This is not a function of coercion; rather, a combination of low intellect and residual anger toward the victim. Thus, I also believe that exploration of these factors prior to trial could have been productive in an attempt to suppress the statement as evidence. [Emphasis added.]
The PCR judge never determined whether the Strickland test was met regarding defendant's contention that his trial counsel should have moved for relief from any inculpatory statements he may have made due to his alleged inability, as opined by Dr. Weiss, to knowingly and voluntarily waive his Miranda rights. Accordingly, we will remand for the PCR judge's further consideration of defendant's contentions in this regard and, also, the rendering of a decision in the manner required by Rule 1:7-4(a).
Lastly, as indicated earlier, we find insufficient merit in the arguments contained in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that even if we were to assume, as defendant argues, that a juror had briefly fallen asleep during the trial, the record at best suggests only that the juror dozed off during the assistant prosecutor's cross-examination of a defense witness. Applying this circumstance to the Strickland test, we agree with the PCR judge that the further pursuit of this matter at trial would not have altered its outcome -- if anything, there was likely a benefit to defendant that the jury may not have been fully attentive while one of his witnesses was being cross-examined by the assistant prosecutor. And we find no substance in the contention that an inference should be drawn that, because a juror may have nodded off at one point, the juror likely slept at other stages of the trial.
We affirm in part and remand in part. We do not retain jurisdiction.