On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 94-10-1643.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION September 25, 2009
Remanded by Supreme Court February 7, 2008
Before Judges Stern, Payne and Waugh.
Defendant was convicted at a jury trial on all counts of an indictment charging him with purposeful or knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); kidnapping, contrary to N.J.S.A. 2C:13-1(b) (count three); and two counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) and (3) (counts four and five). The offenses occurred on July 18, 1993, when the victim, L.G., was six years old. State v. Cooper, 151 N.J. 326, 341-42 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000). On May 17, 1995, defendant was sentenced to death for the capital murder. The felony murder conviction was merged therein.*fn1 The trial judge also imposed a consecutive term of fifty-years imprisonment with twenty-five years of parole ineligibility on the kidnapping conviction, and a consecutive term of twenty years with ten years of parole ineligibility on the two aggravated sexual assault convictions, which were merged into each other. Id. at 341, 347, 405-06.
On defendant's direct appeal, the Supreme Court affirmed the murder conviction and capital sentence. Id. at 341, 406-07. The Court also held that the aggravated sexual assault convictions should have been merged into the kidnapping conviction and vacated the aggravated sexual assault convictions. The kidnapping conviction and sentence were affirmed. Id. at 405-06. On the subsequent proportionality review, the Court also upheld the death penalty. State v. Cooper, 159 N.J. 55, 116 (1999).
Defendant thereafter filed a verified petition for post-conviction relief (PCR) and amended petitions. Following initial rulings on discovery by the PCR judge, the Supreme Court granted leave to appeal and summarily reversed "those provisions in the trial court orders requiring defendant to produce for the State trial counsel's entire file . . . without prejudice to the State making a subsequent motion to the trial court for discovery of the file, which request shall be narrowly tailored to include only relevant and non-privileged information." State v. Cooper, 175 N.J. 70 (2002).
The trial court conducted an evidentiary hearing on the issue of whether defendant was deprived of his right of allocution in the penalty phase, and on October 16, 2003, dismissed that aspect of the petition. By order dated October 24, 2003, the judge dismissed the balance of the petition without an evidentiary hearing.
Defendant appealed as of right to the Supreme Court. R. 2:2-1(a)(3). By order dated April 20, 2005, the Supreme Court determined that "a more expansive record is required for the fair resolution of several of the issues raised by defendant's ineffective assistance of counsel claim." Accordingly, while otherwise retaining jurisdiction, the Court remanded the matter to the Law Division "for a plenary hearing to explore fully the following issues":
(1) Whether trial counsel were ineffective because they failed to call Dr. Adams or a substitute expert as a witness at trial to support defendant's contention that the victim's death was accidental and not intentional;
(2) Whether trial counsel were ineffective because they failed to introduce evidence of defendant's intoxication as a defense at trial;
(3) Whether trial counsel were ineffective because they failed to introduce evidence of defendant's mental disease or defect as a defense at trial; and
(4) Whether, in respect of 1, 2, and 3 above, trial counsel had sufficient time to investigate and prepare for trial after the removal of Diane Aifer, Esquire, as counsel for defendant; [and]
(5) Whether additional psychological testing and access to defendant's prison records were necessary for the prosecution of defendant's post-conviction relief petition in light of the earlier August 2001 order (i) requiring production of defendant's prison records from the archives of the New Jersey State Prison and (ii) compelling prison officials to allow entry of Dr. Atkins into the prison for the purposes of evaluating defendant and obtaining prison records in connection with that evaluation[.]
On remand, additional evidentiary hearings were held between February 8 and September 14, 2006. At the conclusion of the hearings, on March 19, 2007, the PCR judge again denied the petition.
On December 16, 2007, the Governor commuted defendant's sentence to life imprisonment without the possibility of parole. Executive Order, Commutation of Death Sentences to Life Imprisonment Without Parole (Dec. 16, 2007), and on December 17, 2007, the Legislature abolished the death penalty. L. 2007, c. 204. As a result, by order dated February 7, 2008, the Supreme Court "remanded" the case to us based upon the commutation of defendant's death sentence and the abolition of the death penalty. State v. Cooper, 194 N.J. 258 (2008). We now affirm the denial of PCR.
We first reject the suggestion that this appeal is moot by virtue of the Governor's commutation of defendant's sentence to life without parole and the Legislature's abolition of the death penalty and substitution of a sentence of life without parole.*fn2
In State v. Fortin, 198 N.J. 619 (2009), the Supreme Court held that a defendant who had been found guilty of capital murder committed before the death penalty was abolished, but who had not been sentenced at the time the death penalty was abolished, could only receive the statutorily substituted sentence of life without parole if he were tried at a penalty proceeding and the jury found that an aggravating factor or factors existed and outweighed any mitigating factors. Id. at 631-33. If aggravating factor(s) were not found to exist or to outweigh the mitigating factors, the defendant could only receive the maximum non-capital sentence available at the time of the offense, here thirty years to life imprisonment with thirty years to be served before parole eligibility. Id. at 631. See also N.J.S.A. 2C:11-3b.
As a result, if defendant's conviction were to be set aside in the PCR proceedings, he would be entitled to a new trial and, if found guilty of capital murder, he would be in the same position as Fortin, subject to life without parole only after another penalty phase hearing in which the aggravating factor or factors were found to exist and to outweigh the mitigating. And if defendant were found to have ineffective assistance of counsel at the penalty phase only, or the sentence were otherwise set aside, he would be entitled to a new penalty phase hearing because the result could still impact the sentence. Under Fortin, life without parole, as opposed to a sentence with a thirty-year period of parole ineligibility, can only follow a penalty proceeding at which the aggravating factors were found to outweigh the mitigating. 198 N.J. at 633. Otherwise, ex post facto principles would preclude imposition of a sentence of life without parole.
The evidence presented at the guilt phase of defendant's trial is detailed in the Supreme Court's opinion on defendant's direct appeal:*fn3
On July 18, 1993, the six-year-old victim, L.G., her mother, R.G., and the victim's two sisters were at the home of R.G.'s sister-in-law, M.W., in Asbury Park. While M.W. was at the supermarket, R.G. sat on the front porch of the house with her youngest daughter. The victim and her other sister were with M.W.'s daughter playing in the frontyard. After playing in the frontyard for some time, the children moved into a fenced-in backyard.
While they were playing in the backyard, defendant lured the victim away from the other children and eventually picked her up, lifted her over the fence, and walked away with her. The other children went to the frontyard and told R.G. what had occurred. R.G., joined by M.W., who had just returned from the supermarket, began to search for and to call out to L.G., but they could not locate her. Soon after, neighbors joined in the search.
The Asbury Park Police Department was contacted shortly after L.G.'s disappearance, and police officers also joined the search. Within a few hours after the victim had disappeared, her body was found under a porch of an abandoned house. Defendant lived under that porch. L.G. was found lying on her back on a mattress with her shirt pulled up, her panties at her ankles, a pair of men's boxer shorts over her face, and her vaginal area exposed and bloodstained.
The police found clothing and a bloodstained paper towel at arms's length from L.G.'s body. The police also found a gym bag that contained a wallet. Inside the wallet was defendant's social-security card. Defendant's latent fingerprints were found on a paper bag and on a malt-liquor bottle in the porch area. Several letters, photographs, and other documents in defendant's name were also found in the area.
That night, the police interviewed witnesses to the abduction, and defendant became a suspect almost immediately. Defendant was located the next day and was taken to police headquarters for questioning. The State concedes that defendant was in custody at that time. He was read his Miranda*fn4 rights, and he signed a form waiving his rights to remain silent and to counsel. At that time, defendant denied any involvement in the child's death.
Soon thereafter, Detective John Musiello confronted defendant with the evidence that the police had against him and told him that they would seek a court order to obtain forensic evidence from his person.
No law-enforcement officer, however, informed defendant that he was facing a potential death sentence. Instead, they told him that the perpetrator was facing a term of life imprisonment with thirty years of parole ineligibility.
Defendant then confessed to causing L.G.'s death. According to slightly varying police testimony, he dropped his head and stated either: (1) "It was an accident. I did it. I was drunk;" or (2) "It's an accident. I was drunk. I strangled her." Defendant explained that he had seen children playing at M.W.'s house on his way to the porch of the abandoned house and that he had told L.G. to come to him. He lifted her over the fence and led her underneath the porch of the abandoned house. Defendant then stated, "Then we had sex, and I strangled her" and that he had left her body underneath the porch. After further questioning, defendant admitted that he had ejaculated and that he had worn a condom which he later had discarded in a nearby field.
Defendant subsequently signed a formal written statement, in which he described the sexual penetration of L.G. as vaginal and stated that she had bled from her vagina during the penetration, causing blood to get on defendant's clothes. He also told the police that he had been on top of L.G. during the penetration and that his hands had been on her neck.
An autopsy of L.G.'s body revealed dried blood on the skin of her lower abdomen and external genitalia. Numerous internal injuries were found in her vaginal canal and cervix. Her hymen was not intact. Her anal canal also showed signs of injury. The autopsy revealed swelling in L.G.'s trachea and lungs, petechial hemorrhages on the outer surface of the thymus, and swelling in her brain.
The medical examiner concluded that the injuries on and around L.G.'s neck, the edema in her lungs, and the swelling in her brain were consistent with asphyxia caused by manual strangulation. He also concluded that pressure probably had been applied for approximately four to six minutes because, for edema to form in the lungs, pressure would have had to have been applied for three to six minutes, and for irreversible brain damage to occur from lack of oxygen, pressure would have had to have been applied for four to six minutes.
The police obtained seven discarded condoms from a field, close to the abandoned house, to which defendant had led them, and obtained from defendant samples of his hair, saliva, and blood. None of the condoms tested positive for semen, although one had blood on it. Blood was found on the paper towel discovered under the porch, on the cushion on which L.G. had been found, on two pairs of sneakers found under the porch, and on defendant's jeans, t-shirt, and boxer shorts. No semen was found on L.G.'s clothes or person. Four pubic hairs found on L.G. were consistent with defendant's pubic hair, although they could not be linked to him conclusively. [Cooper, supra, 151 N.J. at 342-44.]
In the same opinion, Justice Coleman detailed the facts relating to the penalty phase of defendant's trial.
The defense presented an enormous amount of mitigating evidence about defendant's tragic childhood, which was replete with numerous foster care placements, abuse, neglect, and exposure to violence, drugs, and alcohol. Several experts testified that the lack of stability in defendant's life, his exposure to violence, and his lack of a relationship with his mother had affected him in numerous ways, such as making him aggressive and unable to empathize with others, as well as by reducing his ability to understand cause and effect. The defense also presented expert testimony that, as a result of defendant's upbringing, he was extremely emotionally disturbed and that he had not developed normally.
The State's strategy during the penalty phase was to emphasize the good aspects of defendant's childhood. The prosecutor thus elicited testimony from defendant's relatives about the positive aspects of his familial and foster-care relationships, which the prosecutor argued in summation.
The State rebutted defendant's expert mitigating evidence by presenting testimony that defendant's personality disorder was not treatable. The State's expert also testified that defendant's childhood would not prevent him from knowing the difference between right and wrong and would not make him unable to control his actions.
The jury unanimously found that the State had proven that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and that he had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury, however, unanimously found that the State had failed to prove the existence of the c(4)(c) aggravating factor, namely, that the murder had involved depravity, N.J.S.A. 2C:11-3c(4)(c). Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant's physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors). The jury unanimously rejected the following two factors: (1) that defendant had been denied exposure to proper role models during his childhood; and (2) the "any other reasons not mentioned" factor.
However, the jury unanimously found that the two aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Defendant was accordingly sentenced to death. [Cooper, supra, 151 N.J. at 345-47.]
See also Cooper, supra, 159 N.J. at 64-68 (summarizing the guilt and penalty phase proceedings).
We shall discuss the evidence presented at the PCR hearing incident to our discussion of the issues raised before us.
Defendant claims that he was denied the effective assistance of counsel at both the guilt and penalty phases of his trial. Claims of ineffective assistance of counsel are usually considered on petitions for PCR "because such claims [often] involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 459-60 (1992). See also R. 3:22-4. Hearings are required on ineffective assistance of counsel claims where there is a factual dispute on matters that are not part of the record, and where "a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 461-62. "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington," 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42 (1987). See also State v. Goodwin, 173 N.J. 583, 596 (2002). On the other hand,
[A] post-conviction relief applicant is [not] entitled to a plenary hearing in every case in which an issue of fact is asserted. A trial court judge, of course, after considering the papers submitted in support of and in opposition to the application, has the discretion to evaluate an issue as lacking adequate factual or legal merit. [State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).]
See also State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Here, defendant argued in his initial Supreme Court PCR brief and reply brief that the PCR judge erred by denying him an evidentiary hearing on most of his ineffective assistance of counsel claims. That argument was addressed by the Supreme Court in its order dated April 20, 2005, in which it summarily remanded for a hearing on the five issues quoted above, ruling that "a more expansive record [was] required for the fair resolution" of those issues. Our review of the record also convinces us that an evidentiary hearing was conducted on the issues that warranted it. Preciose, supra, 129 N.J. at 462; see also Feldman v. Lederle Labs., 125 N.J. 117, 132-33 (1991) (order of the Supreme Court binding as to the scope of issues for consideration on remand if it intended to preclude others by its disposition).
There is no dispute that defendant had a constitutional right to the effective assistance of trial counsel, during both the guilt and penalty phases, and to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S.Ct. 830, 836, 83 L.Ed. 2d 821, 830 (1985); United States v. Cronic, 466 U.S. 648, 653-55, 104 S.Ct. 2039, 2043-44, 80 L.Ed. 2d 657, 664-65 (1984); State v. Marshall, 148 N.J. 89, 250, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Davis, 116 N.J. 341, 356 (1989); State v. Sugar, 84 N.J. 1, 15-17 (1980). However, in evaluating a claim of ineffective assistance of counsel, "[j]udicial scrutiny of counsel's performance must be highly deferential," Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694, and we must give substantial deference to the trial judge's findings of fact on the issue if they are supported by the record. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
Decisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. [Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.]
Accord State v. DiFrisco, 174 N.J. 195, 220-21 (2002); State v. Martini, 160 N.J. 248, 266 (1999); Marshall, supra, 148 N.J. at 157. "Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
It is well known that to establish a claim of ineffective assistance of counsel, defendant must prove two elements. First, defendant must prove that, with respect to some specified issue, counsel's performance was deficient in that it "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-888, 690, 104 S.Ct. at 2064, 2066, 80 L.Ed. 2d at 693, 695. Second, he must prove prejudice, defined as a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. ...