On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-12-3525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
Defendant William Neeld appeals from the denial of his petition for post-conviction relief. On appeal defendant contends that he presented sufficient evidence to require an evidentiary hearing on his claim that his trial attorney was ineffective for failure to produce additional evidence relevant to his intoxication defense. The argument lacks sufficient merit to warrant more than brief discussion in a written opinion. R. 2:11-3(e)(2).
Tried to a jury, defendant was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2), and related crimes. The victim was a woman with whom defendant had lived for several years. He committed the crimes after she had moved from the home they formerly shared. At trial the victim testified that defendant had been drinking before he took her from the street in front of her new residence to the woods. Defendant himself testified about the quantity of alcohol he had consumed during the weeks preceding and on the day of these crimes. His son and daughter, who were with defendant while he waited for the victim outside her new residence, also testified about his drinking on the day in question. His daughter said he was drunk. The trial court instructed the jurors on the State's obligation to establish the mental elements of the crimes charged and the relevance of intoxication.
On direct appeal we affirmed the judgment of conviction but did not address his claim that he was "denied the effective assistance of counsel due to counsel's failure to fully present an intoxication defense," which we preserved for a subsequent petition for post-conviction relief. State v. Neeld, No. A-2928-98 (App. Div. Apr. 27, 2000) (slip op. at 4-6). The Supreme Court denied defendant's petition for certification, 167 N.J. 86 (2001).
On defendant's application for post-conviction relief, he reasserted his claim of ineffective assistance of counsel based on trial counsel's failure to present evidence relevant to intoxication, but the attorney appointed to represent defendant on that claim did not pursue the issue and the court denied it. On appeal from that order, defendant contended that his counsel on the petition had not provided constitutionally adequate representation.*fn1 We remanded to permit defense counsel to investigate, develop and present any evidence relevant to defendant's claim, State v. Neeld, No. A-4090-02 (App. Div. Dec. 14, 2004). The Supreme Court denied certification, 182 N.J. 629 (2005).
On remand, defense counsel obtained an expert report, an affidavit from defendant's daughter attesting to her observations of defendant's drinking habits and condition at the time of the crimes, and a report from an investigator who interviewed defendant's son and daughter. Defense counsel provided the investigator's report and the affidavit and advised the court that the expert's opinion was not presented because it was not helpful to the defense. The information given to the court indicated that defendant's children could have testified that he habitually consumed at least thirty beers per day and had done so on the day he committed these crimes. They also would have testified, however, that his behavior was no different than "normal" and "usual."
None of the information offered on remand, even when viewed in the light most favorable to defendant, established a prima case of ineffective assistance of counsel requiring an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992). At trial, defendant's attorney elicited testimony from his children about his drinking on the day of the crimes that was more favorable to defendant's claim that his thought processes were impaired than the testimony which defense counsel did not present, which was defendant's alcohol consumption and behavior on the day of the crimes was nothing out of the ordinary. Although defendant has been given ample opportunity, he was unable to present evidence that even suggests that his trial attorney's performance was "deficient" or that there is any "reasonable probability" that the result of his trial would have been different if counsel had presented additional, available evidence. Ibid.