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State v. Reddish


July 17, 2008


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 96-02-0195.

Per curiam.



Submitted April 16, 2008

Before Judges Sapp-Peterson and Messano.

Defendant, Charles Reddish, appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

In December 1998, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2) (Count Two); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (Count Three); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) and (5)*fn1 (Counts Four and Five); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (Count Six); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (Counts Seven and Eight); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Nine). These convictions stemmed from defendant's brutal beating and hacking of his girlfriend that was witnessed by her daughter and, thereafter, the repeated rape of the daughter. Because this was a capital murder, a penalty phase trial was conducted and the jury declined to find the murder involved aggravated assault or torture as to the deceased victim or her daughter, the victim of the sexual assaults. Defendant was sentenced on March 19, 1999, to an aggregate life term with fifty-five years of parole ineligibility.

Defendant appealed his convictions to this court, alleging that certain statements he made were inadmissible because the statements were made after he invoked his right to counsel. He also claimed that his sentence was excessive. In a pro se supplemental brief, defendant argued (1) that taped statements he gave to the police were inadmissible because they were the product of coercive police misconduct, (2) the trial court erred when it failed to give the jury a "limiting instruction as to [his] invocation of constitutional right[,]" (3) some of the statements he made were given without the police first administering Miranda*fn2 warnings to him, and (4) the "statements taken during police-initiated interrogation after defendant's first appearance are a violation of constitutional right to counsel." We affirmed defendant's conviction and the sentence imposed on April 20, 2001. State v. Reddish, No. A-6205-98 (App. Div. Apr. 20, 2001) (slip op. at 2).

Following denial of his petition for certification, defendant filed a pro se motion seeking post-conviction relief in February 2004. Defendant argued that his statements were obtained after he invoked his right to an attorney and that his sentence was excessive. Defendant received assigned counsel, who filed a supplemental letter brief claiming ineffective assistance of trial counsel as a basis for post-conviction relief. Specifically, defendant claimed trial counsel did not request, nor did the court charge the jury on diminished capacity and, prior to trial, trial counsel determined that an insanity defense would not be advanced. In addition, defendant claimed there was sufficient evidence in the record for trial counsel to have put forth an intoxication defense as well.

Specifically, defendant argued the deceased victim's daughter, who was the victim of defendant's sexual assaults, testified that defendant smelled of alcohol, talked of suicide, spoke rapidly and was mumbling. Additionally, one of defendant's expert witnesses, Dr. Kenneth J. Weiss (Dr. Weiss), a forensic psychiatrist, testified during the penalty phase that defendant suffered from extreme emotional disturbance as a result of his interactions with the deceased victim. Dr. Weiss described those interactions as becoming inflamed over the weeks and days before the victim's death and that defendant's consumption of alcohol and ingestion of drugs caused defendant to lose touch with reality.

Defendant's PCR motion was heard before Judge Thomas S. Smith, Jr., who issued a written opinion denying defendant's motion, finding that the claims were barred because Rule 3:22-4 "prohibits a defendant from raising issues in post-conviction relief proceedings that could have been raised in a prior proceeding." Judge Smith also found that the claims surrounding ineffective assistance of counsel involved trial strategy and did not reach constitutional proportion. The present appeal followed.

On appeal defendant raises the following points for our consideration:




We have considered each of these points in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and reject all of defendant's arguments as lacking merit. We affirm therefore substantially for the reasons stated by Judge Smith in his written opinion of October 5, 2006. We add only the following comments.

Defendant does not dispute that his challenge to the court's jury instructions, the denial of his new trial motion and the admissibility of certain statements made were matters that could have been raised on direct appeal. Rather, he urges that enforcement of the rule would result in "fundamental injustice" because his trial counsel's failure "to pursue the affirmative defenses of diminished capacity, intoxication, and not guilty by reason of insanity not only cost him the case but . . . wrought a miscarriage of justice in his case." We disagree.

"Fundamental injustice" sufficient to overcome the procedural bar under Rule 3:22-4 for raising issues through PCR that could have been raised on direct appeal "will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise 'wrought a miscarriage of justice for the individual defendant.'" State v. Mitchell, 126 N.J. 565, 587 (1992). Defendant bears the burden of proving, by the preponderance of the evidence, that a "fundamental injustice" would result if post-conviction relief is not granted. Id. at 579.

In the certification submitted by defendant's trial counsel as part of the PCR motion, defense counsel indicated that prior to trial, the State was given notice of defendant's intent to pursue insanity and diminished capacity defenses, and in preparation of this defense, defendant was evaluated by a number of experts. After performing their evaluations, the experts opined that defendant did not suffer from insanity, diminished capacity or intoxication at the time of the murder. Defense counsel stated that the expert witnesses "were not presented during the guilt phase because . . . . their expert opinions would not have supported insanity, diminished capacity or intoxication defenses."

We are satisfied the trial judge properly rejected defendant's claim that enforcement of Rule 3:22-4 would result in a "fundamental injustice." The record here demonstrates neither an abuse of process nor a miscarriage of justice sufficient to warrant an exception to enforcement of the procedural bar of Rule 3:22-4.

Likewise, defendant's claim of ineffective assistance of counsel was also properly rejected by the trial court. The validity of such claims is judged by determining whether counsel's conduct changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062-63, 80 L.Ed. 2d 674, 691 (1984); State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland test in New Jersey). Specifically, under the Strickland-Fritz test, a defendant seeking post-conviction relief based upon a claim of ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that there exists "'a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

As noted earlier, defendant's trial counsel conducted reasonable investigation into defendant's mental state. Counsel retained the services of numerous experts, including Dr. Weiss; Maureen Santina, a psychometrician; and Dr. Edward J. Dougherty (Dr. Dougherty), a forensic psychologist.*fn3 Trial counsel also entered a plea of not guilty by reason of insanity but withdrew the plea when Dr. Weiss concluded that defendant was not legally insane, even though Dr. Dougherty found defendant was suffering from schizoaffective disorder.*fn4 Dr. Weiss also concluded that defendant was not "messed up" enough on alcohol or cocaine to establish an intoxication defense. Given the conclusions of defendant's own expert, it was reasonable for trial counsel to withdraw the not guilty by reason of insanity plea and to forgo arguing voluntary intoxication at trial.

Defendant also argues that trial counsel was ineffective because counsel did not argue diminished capacity or ask for a diminished capacity instruction, and had it been raised, he would have been acquitted of capital murder. N.J.S.A. 2C:4-2, the diminished capacity statute, states,

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

Diminished capacity is not an affirmative defense; therefore, defendant does not bear the burden of proof. See State v. Reyes, 140 N.J. 344, 357 (1995). Instead, diminished capacity may negate intent that is an element of the charged offense. Id. at 354. However, not every mental disease or defect constitutes diminished capacity sufficient to negate intent. Id. at 360. Our Supreme Court has noted "the drafters of the Model Penal Code recognized that 'many mentally disturbed persons are [quite] capable of acting purposefully or knowingly in the minimal senses intended by the Model Code.'" Ibid. (citations omitted).

We are satisfied the record supports Judge Smith's conclusion that the decision to forgo a diminished capacity argument was one of trial strategy, made after reasonable investigation, including consultation with various mental health professionals. The defense experts opined that defendant knew that hitting R.W. with a hatchet would cause her death and that he intended to cause her death when he struck the blows. Specifically, Dr. Weiss testified defendant had the capacity to form the requisite intent, while Dr. Dougherty opined defendant was capable of appreciating the fact he could kill the victim by hitting her in the head with a hatchet. Since defendant knew that striking the victim with a hatchet would kill her and he struck her with a hatchet intending to cause her death, any diminished capacity did not negate the requisite knowing or purposeful mental state mandated by New Jersey's first-degree murder statute. N.J.S.A. 2C:11-3(a)(1) & (2).

Further, under the Strickland test, trial counsel's decision not to pursue a diminished capacity defense is presumed valid. 466 U.S. at 689; 104 S.Ct. at 2065; 80 L.Ed. 2d at 694. Defendant must offer proof to overcome this presumption of validity and prove that counsel's conduct was unreasonable by a preponderance of the evidence. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Defendant has not offered any facts to show that under the circumstances, counsel's decision was not valid. Defendant has merely made the bare assertion that he would have been acquitted but for counsel's decision not to offer a diminished capacity defense during the guilt phase of his trial. Therefore, the first prong of the Strickland/Fritz test for ineffective assistance has not been met.

Moreover, even if defendant could satisfy the first prong of the Strickland/Fritz test, the competent evidence before the jury overwhelmingly established defendant's knowing or purposeful conduct when he brutally murdered his girlfriend with a hatchet in her daughter's presence, and then proceeded to vaginally, orally, and anally rape the deceased victim's then fourteen-year-old daughter. Although it is undisputed that defendant was suffering from schizoaffective disorder at the time of the crime, he presented no evidence that the outcome would have been different but for his counsel's alleged unprofessional conduct. Preciose, supra, 129 N.J. at 463-64. Therefore, defendant has not met his burden under the Strickland/Fritz test and Judge Smith did not err when he determined that defendant received effective assistance of trial counsel.

This conclusion also applies to defendant's claim that he did not receive effective assistance of appellate counsel, who defendant claims equally failed to raise diminished capacity, insanity and voluntary intoxication defenses. Because the opinions of the defense experts did not support defendant's position relative to his mental state at the time the crimes were committed, appellate counsel's performance did not fall below the standard of legal representation owed to defendant under Strickland/Fritz.

Finally, given the absence of any expert opinion to support defendant's claim that insanity, diminished capacity and voluntary intoxication should have been advanced, we find no merit to his claim that the trial court should have conducted an evidentiary hearing on the issue of trial counsel's decision not to present these defenses based upon insanity, voluntary intoxication, and diminished capacity. See Id. at 463 (holding no evidentiary hearing is required where a defendant fails to establish a prima facie case of ineffective assistance of counsel).


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