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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 On February 7, 2003, by way of an unpublished opinion, we rejected defendant's arguments and affirmed.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, ...