January 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LYNN KELSEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 02-10-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Parrillo and Messano.
Defendant Lynn Kelsey appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. We have considered the arguments she has raised in light of the record and applicable legal standards. We affirm.
On September 15, 2003, pursuant to a plea agreement with the State, defendant pled guilty to the second count of Monmouth County Indictment No. 02-10-2013-I, charging her with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3. The State was free to recommend a ten-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In return for defendant's guilty plea, the remaining counts of the indictment, including the charge of first-degree attempted murder, as well as a second indictment, charging defendant with various drug offenses, were to be dismissed at sentencing.
When she pled guilty under oath before Judge Ira E. Kreizman, defendant provided a factual basis that contained the following details: she had "discussed with two or three people the possibility of killing [her] husband"; she gave his photograph to someone she knew as "Knowledge," who in fact was undercover detective Doug Johnson; she showed Johnson a policy of insurance she had on her husband's life and provided him with her husband's home and work addresses and telephone numbers so that Johnson could "follow him and . . . do the hit[.]" After discussing various "means" by which her husband could be killed, it was agreed that Johnson would "push [her husband] in front of a train," because "if [her husband] w[as] killed in a form of mass transportation, the [insurance] policy . . . provided . . . a $1,000,000 payout." Johnson was to receive $125,000 of the insurance proceeds and defendant intended to marry her indicted co-conspirator, Michael Malone, and possibly move with him to Hawaii. Defendant met with Johnson and Malone on May 7 and 8, 2002 and provided Johnson with more details about her husband's activities, including his usual route to work. It was defendant's understanding that Johnson would follow and kill her husband the next day.
Judge Kreizman questioned defendant about the terms of the plea agreement, which she understood. Defendant clearly indicated to Judge Kreizman that her plea was voluntary, that she was satisfied with the services provided by her attorney and that she understood she was waiving her rights to a trial and to raise affirmative defenses. Specifically, the following exchange took place:
Judge: You have a right to have a trial in this case. At a trial . . . the State is required to prove your guilt beyond a reasonable doubt . . . [and] to present witnesses. [Your attorney] could ask questions, cross examine those witnesses . . . [and] could present witnesses from you on your behalf. You could testify if you wanted to. If you did not want to testify, the jury would be told . . . that they could not use that against you. Are you aware of all that?
Judge: At a trial you also have a right to raise . . . affirmative defenses, that you were under the influence of alcohol or drugs or that you were under duress or whatever you might have - I'm sure you discussed those things with [your attorney]. You understand that?
Defendant: I do.
Judge: By pleading guilty you're waiving your right to such a trial, you understand [that] also?
Defendant: Yes, I do.
Judge: Is that what you want to do?
Defendant: Yes. (Emphasis added.)
Judge Kreizman found that defendant had pled guilty "voluntarily, knowingly and willingly with the aid of competent counsel who[se] services she [wa]s satisfied with." He concluded that even though defendant was a "user of narcotics[,]" she was not under the influence of any substances at the time of the hearing. The judge found that defendant "underst[ood] the nature of the charges . . . [and] that she ha[d] voluntarily, knowingly and willingly waived her right to a trial[.]"
At sentencing, defense counsel referenced several letters written to the Judge that "summariz[ed] [defendant's] situation, what brought her to this point . . . [a]nd where her head [wa]s at [that] day."*fn1 He further noted that the letters expressed defendant's "understand[ing] [of] the situation[,] . . . the sentence . . . impose[d][,] [and] what she ha[d] to do to get her life together." Judge Kreizman noted that he had read the various letters and was very familiar with the case. He referenced defendant's psychiatric problems, addiction problems, successful employment history, and lack of prior convictions as mitigating factors, ultimately finding that the mitigating and aggravating factors were "in balance." He sentenced defendant to a seven-year term of imprisonment and imposed the mandatory NERA parole disqualifier. We affirmed defendant's sentence on appeal. State v. Kelsey, No. A-4314-03T4 (App. Div. October 18, 2005). Her petition for certification was denied. 186 N.J. 245 (2006).
Defendant filed a pro se PCR petition dated February 21, 2006. In a lengthy attachment, she claimed that her trial counsel's "failure . . . to address" the "key issue" of "[b]attered [w]oman syndrome" demonstrated the "ineffectiveness of [his] representation on [her] behalf." She further claimed trial counsel failed to "effectively raise the issue and defenses of [d]efendant in this action," noting that she "suffer[ed] from a [s]tate of [m]ind . . . at the time of the plea agreement . . . from an addiction to dangerous narcotic drugs [and] also a diminished state caused by a form of [p]ost [t]raumatic [s]tress [d]isorder known as [b]attered [w]oman [s]yndrome[.]"
She attached a police report indicating she had obtained a domestic violence final restraining order (FRO) against her husband less than three weeks before the conspiratorial meetings with Johnson and Malone. She also attached fifteen pages of medical records from the Jersey Shore Medical Center that documented her visit to its emergency room on May 8, 2002, the same day as her last meeting with Malone and Johnson. Defendant was evaluated by the "crisis" unit at the hospital and the records demonstrate that cocaine was detected in her system, that she admitted her substance abuse problems, and that she claimed she was in a "[ten] year abusive marriage." Defendant's "insight" and "impulse control" were "fair," but her "judgment was "poor." However, the records also reveal that defendant's appearance was "casual [and] clear," her attitude was "cooperative," her mood/affect was "unremarkable," her thought process was "coherent," and her memory was "intact." Defendant was diagnosed with "cocaine dependence," and referred to out-patient counseling.
Defendant's petition did not include any reports from experts interpreting these medical records, or otherwise opining as to defendant's mental state at the time of the criminal episode or at the time she pled guilty, some sixteen months later. Notably, in her petition, defendant never requested to withdraw her guilty plea, but rather sought a downward modification of her sentence based upon these further "mitigating factors."
In his brief and at the PCR hearing, defendant's assigned counsel argued that her trial attorney provided ineffective assistance because he failed to "engage an expert on [b]attered [w]oman [s]yndrome and explore that as a defense," and because "he failed to discuss [with defendant] [i]ncapacitating [m]ental [a]nguish as a defense." Judge Kreizman found that defendant's petition contained "[e]mpty, groundless accusations" regarding trial counsel's performance, and he concluded that these "fail[ed] to satisfy both Strickland and Fritz."*fn2
Citing State v. Brennan, 183 N.J. 202 (2005), the judge noted that "battered woman syndrome is relevant to the subjective perception of the woman in regards to a threat from an abuser and can therefore be relevant to credibility as to the testimony that she was under duress." He noted:
The proposition that the . . . syndrome could be applied to a situation in which a woman was seeking to kill her husband for the insurance proceeds I find is certainly inappropriate.
Citing State v. Walker, 216 N.J. Super. 39 (App. Div. 1987), Judge Kreizman noted that incapacitating mental anguish is "severe emotional distress or suffering which results in a temporary or permanent inability of the victim to function in some significant aspect of her life." Referencing the actual taped conversation defendant had with Johnson, the judge "refuse[d] to associate the calculated attempt at murdering her husband for monetary gain with the defense of incapacitating mental anguish." Finding defendant's contention that her attorney never spoke to her about these issues incredible, Judge Kreizman further noted that even if that was true, there was "no showing that the outcome would have changed" because neither defense was available.
Defendant re-asserts the same arguments before us, contending alternatively that she had established a prima facie case for relief in her petition such that an evidentiary hearing was warranted. We conclude defendant failed to establish a prima facie case for relief under the Strickland/Fritz standard and was not entitled to an evidentiary hearing to supply the missing elements of her claim. See State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008) (noting "the court is not obligated to conduct an evidentiary hearing to allow [the] defendant to establish a prima facie case not contained within the allegations in h[er] PCR petition").
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of success under the Strickland/Fritz test. State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000)(internal citations omitted). First, a defendant must show counsel's performance was so deficient as to objectively fall outside the broad range of professionally reasonable, acceptable assistance. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. at 695. In this regard, a defendant must overcome the "strong presumption that counsel's conduct f[ell] within the wide range of reasonable professional assistance[.]" Fritz, supra, 105 N.J. at 52 (internal quotations omitted). While "[t]he failure to conduct an adequate pre-trial investigation may give rise to a claim of ineffective assistance of counsel[,]" Russo, supra, 333 N.J. Super. at 139, "strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable." State v. Davis, 116 N.J. 341, 357 (1989)(citations omitted).
Secondly, a defendant must demonstrate that counsel's performance was so deficient that it "actually had an adverse effect on the defense." Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed. at 697; see also Fritz, supra, 105 N.J. at 58. In other words, a defendant must demonstrate that but for counsel's deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. Ibid. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Russo, supra, 333 N.J. Super. at 139.
Whether an evidentiary hearing on any PCR claim is required is an issue committed to the sound discretion of the trial judge. State v. Preciose, 129 N.J. 451, 462 (1992); Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009). When a claim of ineffective assistance of counsel is made, evidence often lies outside the record, thus justifying the need to take further testimony at an evidentiary hearing. State v. Castagna, 187 N.J. 293, 313 (2006). However, "[a]n evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, supra, comment 2 to R. 3:22-10; see also State v, Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). If, "view[ing] the facts in the light most favorable to a defendant to determine whether [she] has established a prima facie claim," the court concludes that the defendant's petition fails to make this showing, an evidentiary hearing is not required. Preciose, supra, 129 N.J. at 463; see also State v. Cimmings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Judge Kreizman determined that defendant failed to meet the first prong of the Strickland/Fritz test, concluding any assertion that her attorney never spoke to her about these alleged defenses was incredible. Our review of defendant's petition fails to reveal any allegation that trial counsel did not discuss these "defenses" with her. More importantly, as the transcript of the plea proceeding reveals, defendant acknowledged that she in fact had discussed potential affirmative defenses regarding her drug and alcohol abuse and "duress" with her attorney, and that she understood she was giving up such possible defenses by pleading guilty. Thus, defendant's claims that her attorney failed to investigate the possibility of such defenses, and/or discuss them with her, are "bald assertions" that do not entitle her to an evidential hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Assuming arguendo that defendant's petition sufficiently alleged her trial counsel was deficient in his investigation, or that an evidentiary hearing would have revealed counsel's deficiency, we agree with Judge Kreizman that defendant failed to establish a prima facie case for success under the second Strickland/Fritz standard. First and foremost, defendant's petition was unsupported by any expert reports indicating that she suffered from battered woman syndrome, or that combined with her drug abuse, she suffered from "incapacitating mental anguish." She alleged that she had filed several domestic violence complaints against her husband, but none were included in the petition, and the conclusory statement that based upon "numerous police reports and restraining orders" she suffered from battered woman syndrome falls wide of the prima facie proof standard. Defendant's petition is deficient in establishing that even if properly investigated, this defense would have been available at trial.
Additionally, we agree with Judge Kreizman that based upon the factual context of the crime, and relying solely upon what is in defendant's petition, neither battered woman syndrome nor "incapacitating mental anguish" was available as a defense under the facts of this case. The "'battered woman syndrome' describes a collection of common behavioral and psychological characteristics exhibited in women who repeatedly are physically and emotionally abused over a prolonged length of time by the dominant male figure in their lives." State v. B.H., 183 N.J. 171, 182 (2005) (citations omitted). The "syndrome evidence has been admitted to support a claim of self-defense and to assist juries in related credibility determination[s]." Id. at 185. Evidence of the syndrome may also be relevant to the defense of duress. Id. at 196-98.
Defendant has not established that either duress or self-defense were viable defenses in her case. For self-defense to be viable, defendant must prove that any force she contemplated using was necessary because her life was in imminent danger. N.J.S.A. 2C:3-4; see also State v. Bryant, 288 N.J. Super. 27, 34 (App. Div.), certif. denied, 144 N.J. 589 (1996). Obviously, defendant was guilty of conspiring to murder her husband, and there was no evidence adduced, nor has defendant included any in her petition, that suggests she faced imminent danger of death. For duress to be a viable defense, defendant must show that she "was coerced" into conduct by the "use of, or a threat to use, unlawful force against [her] . . . which a person of reasonable firmness in h[er] situation would have been unable to resist."
N.J.S.A. 2C:2-9. Thus, while evidence of battered woman syndrome may support a defense of duress, defendant would have to provide "credible evidence that she suffered from [the] syndrome [as] a result of having been battered by the very person she claims coerced her into the criminal conduct[.]" State v. B.H., 364 N.J. Super. 171, 187 (App. Div. 2003) modified, aff'd. by 183 N.J. 1717 (2005). Defendant has offered no competent evidence that her husband engaged in coercive conduct, the purpose of which was to force her into conspiring his own murder.
"Incapacitating mental anguish" is not a defense to any crime in our Criminal Code. "Incapacitating mental anguish is one component of the statutory definition of 'severe personal injury'" which a victim must suffer as a predicate for a defendant's conviction of aggravated sexual assault under N.J.S.A. 2C:14-2a(6). Walker, supra, 216 N.J. Super. at 43. Defendant fails to cite any authority for the proposition that the concept has relevance to any affirmative defense to the charge of conspiracy to commit murder. Hence, even if counsel adequately investigated the underlying factual events, it would not have mattered because no such defense could have been raised in the first place.*fn3
Lastly, in order to demonstrate ineffective assistance of counsel in the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 528 (1994)(quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)). Defendant has never claimed that she would have withdrawn her guilty plea and gone to trial if her attorney had adequately investigated her claims and/or advised her that such defenses could be properly asserted at trial.