On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 96-02-0195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
POINT ONE THE APPELLANT'S MOTION FOR POST[-]CONVICTION RELIEF WAS NOT BARRED BY RULE 3:22-4.
POINT TWO THE TRIAL COURT COMMITTED ERROR IN DENYING THE APPELLANT'S MOTION FOR POST[-]CONVICTION RELIEF UPON THE ISSUE OF ...