On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 01-03-1440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 12, 2009
Before Judges Stern and Graves.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) in which he claimed trial and appellate counsel were ineffective. His first and primary claim is that trial counsel did not "retain a defense expert in challenging the admissibility of the defendant's statement" and that appellate counsel did not raise the issue. The evidence relating to the crimes of which defendant was convicted and of his statement to the police are detailed in our published opinion. State v. King, 372 N.J. Super. 227, 231-36 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).
Defendant emphasizes that he was in the hospital on a self-administered morphine IV drip when his incriminatory statement was taken. However, a nurse-expert, Victoria Bitar, testified at the pretrial Miranda hearing that the hospital records reflect he was "alert and oriented," and in "no distress" at the time he gave the statement. She also stated that the one milligram morphine drip would not "impair" the judgment of a man his size.
An inculpatory statement given while on a self-administered morphine drip is not per se inadmissible. United States v. Cristobal, 293 F.3d 134, 141 (4th Cir. 2002), cert. denied, 537 U.S. 963, 123 S.Ct. 396, 154 L.Ed. 2d 319 (2002) (in hospital on morphine). See also State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). In our opinion on defendant's direct appeal, we noted defendant's strategy of showing that the statement was involuntary, although the issue of voluntariness was not raised as a specific issue on the appeal. See King, supra, 372 N.J. Super. at 237. In any event, there was a pretrial Miranda hearing at which defendant challenged the admissibility of the statement, and there was no showing in the PCR petition that there was an expert who would testify that the statement was involuntary given defendant's condition. Hence, there was no basis for an evidentiary hearing on the issue or a finding that counsel was ineffective. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).
Defendant also claims trial counsel was ineffective "when that attorney failed to request a jury charge regarding identification." On the direct appeal, we expressly noted that identification was an issue in the case, although not in the ordinary sense because defendant was not identified as the person who shot the victim. King, supra, 372 N.J. Super. at 238. Defense counsel did not want an identification charge because defendant was not identified as the shooter either at the scene or in court, and we found no "plain error". Id. at 239. Of course, finding no "plain error" suggests that an objection may have affected the result. However, we conclude that such a charge would not have changed the result in this case because of defendant's statement that he shot in the direction of the victim and the proofs that he shot his gun.
The other issues raised do not warrant discussion in a written opinion. R. 2:11-3(e)(2).*fn1
The order denying PCR is affirmed substantially for the reasons noted by Judge Michael Petrolle in his ...