October 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY MAYRON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 86-05-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Wefing and Messano.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was tried for capital murder in 1989. The jury convicted him of purposeful murder, N.J.S.A. 2C:11-3(a)(1) and first-degree kidnapping, N.J.S.A. 2C:13-1(b), but in the penalty phase, it did not return a capital verdict. The trial court sentenced defendant to life in prison for murder, with a thirty-year period of parole ineligibility, and it also sentenced defendant to a consecutive term of thirty years, with a fifteen-year period of parole ineligibility, for kidnapping. Defendant appealed to this court, and we affirmed his convictions and sentence. State v. Mayron, No. A-2876-89T4 (App. Div. Dec. 3, 1993). In our opinion, we noted that defendant gave two post-arrest confessions, the details of which were corroborated by physical evidence and other testimony. State v. Mayron, supra (slip op. at 2). The defendant did not challenge the admissibility of those confessions. Ibid. We also said that "[t]he State's proofs demonstrated overwhelmingly that the victim's death resulted from serious bodily injury purposefully inflicted upon her by defendant." Ibid. The Supreme Court denied defendant's petition for certification. State v. Mayron, 135 N.J. 468 (1994).
Defendant filed a petition for post-conviction relief which the trial court denied without having entertained oral argument on the merits of the petition. Defendant appealed, and we reversed, not with respect to the merits of the petition, which we did not address, but with respect to the denial of oral argument. State v. Mayron, No. A-2116-99T4 (App. Div. Oct. 17, 2001). Following our remand, counsel appeared before the trial court and argued in support of defendant's petition. Following that argument, the trial court again denied the petition. This appeal followed. Defendant raises the following contentions on appeal:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to sufficiently investigate or develop a defense based on defendant's mental condition.
B. Trial counsel failed to investigate and present essential witnesses at trial.
C. Trial counsel failed to investigate the case.
D. Trial counsel failed to protect defendant's right to a fair and impartial jury.
POINT II THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE TRIAL, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
POINT III THE LOWER COURT ORDER MUST BE REVERSED SINCE THIS COURT ERRED IN FAILING TO REVERSE DEFENDANT'S CONVICTION ON THE DIRECT APPEAL.
POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4 [sic].
POINT V THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 [sic].
POINT VI THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
The parties do not dispute the legal principles which must guide our analysis; they are well-known and settled. A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). The New Jersey Supreme Court has expressly adopted the Strickland standards as the proper measure against which to assess a claim of ineffective assistance of counsel.
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.]
Procedurally, a defendant's petition for post-conviction relief must comply with the provisions of Rule 3:22. A defendant may not assert in the context of a petition for post-conviction relief a claim that should have been asserted on direct appeal. R. 3:22-4. Nor may a defendant assert a claim that was already adjudicated on the merits. R. 3:22-5.
We turn now to defendant's particular claims that his trial counsel were ineffective, the first of which is the assertion that they*fn1 failed to investigate or develop a defense based upon his mental condition. The record does not support this assertion. Defendant's trial counsel arranged for a number of psychological and psychiatric evaluations to be performed, but these did not support a defense of diminished capacity.
Defendant submitted the report of a psychiatrist, Daniel P. Greenfield, M.D., in connection with his PCR petition. Dr. Greenfield acknowledged in his report that those earlier evaluations did not support a claim of diminished capacity. Dr. Greenfield explicitly noted in his report, however, that he structured it "in terms of current diagnostic, clinical, and investigative technology, since some of the studies which [he discussed] did not exist more than twenty years ago...."
Clearly, the attorneys who represented defendant at trial cannot be deemed to have provided ineffective assistance because the consultants they retained did not utilize techniques and methodologies not then available to them.
Similarly, we reject defendant's contention that his trial attorneys were ineffective for not investigating the case and presenting essential witnesses. The testimony of the witness to whom defendant points, however, relates to his claim of diminished capacity. As we have just indicated, those attorneys were not ineffective for not pursuing that issue in the context of the guilt phase of the trial.
Defendant also claims that his trial attorneys were ineffective for not exercising a peremptory challenge with respect to one of the jurors. In denying this aspect of defendant's petition, the trial court noted that the juror in question, after an extensive voir dire, stated that he could be fair and impartial, and we have no basis to conclude that this juror's participation in this matter deprived defendant of a fair trial. We also agree with the trial court that, at bottom, juror selection is a matter of trial strategy. The decision to accept or to challenge a juror is not made in a vacuum. It requires consideration of a juror's responses, the manner in which those responses are conveyed, as well as an assessment of those jurors already seated and those not yet examined. A choice of trial strategy, which is examined under a presumption that counsel's conduct falls within a wide range of reasonable behavior, may not be the basis for a charge of ineffective assistance of trial counsel. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95.
We also reject the balance of defendant's arguments. His contention of prosecutorial misconduct was raised on direct appeal and is thus barred by Rule 3:22-5. To the extent defendant complains of conduct by the prosecutor, which he did not address in his direct appeal, it is barred by Rule 3:22-4. Defendant's claim that this court erred when it upheld his convictions and sentence is not cognizable on a PCR petition. There was no basis for the trial court to conduct an evidentiary hearing because defendant did not raise a material issue which required testimony for resolution.
The order under review is affirmed.