May 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 92-10-1187.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Skillman and Simonelli.
Defendant Christopher Jones appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial counsel. We affirm.
Defendant was indicted for murder, N.J.S.A. 2C:11-3a(1) and (2), and possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. There was no dispute that defendant stabbed a complete stranger, Paul Tucker, causing his death. At issue was defendant's state of mind and whether the killing was murder, as the State argued, or aggravated manslaughter, as defendant argued. Defendant raised an intoxication defense to prove that he lacked the capacity to act purposely or knowingly. State witnesses disputed that defendant was intoxicated at the time of the stabbing. Defense witnesses, including defendant, testified about defendant's extreme intoxication.
Defendant's psychiatric expert, Steven Simring, M.D., rendered a report concluding that defendant is a chronic alcoholic, and that at the time of the stabbing he was extremely intoxicated, and thus lacked the capacity to act purposely or knowingly. The doctor also stated that defendant suffered from depression.
At trial, the doctor stated for the first time that in addition to his extreme intoxication, defendant was also paranoid at the time of the stabbing, which led him to arm himself with a knife to protect himself from unknown dangers but not to intentionally stab anyone. The doctor could not say "for sure" that defendant's paranoia was "the most likely explanation" for his attack on Tucker. He concluded that defendant's paranoia was one of several "possibilities" for his behavior. The doctor also did not believe that defendant was a paranoid individual. He made clear that he only testified to a reasonable degree of medical certainty that defendant's extreme intoxication impaired his mental faculties. Dr. Simring concluded that defendant's mental faculties were "prostrated" by his extreme use of alcohol, making him "incapable of forming purpose, of acting with purpose and knowledge."
The trial judge charged intoxication as a defense and the lesser included offense of aggravated manslaughter. Despite a joint motion by all counsel, the judge did not charge the lesser included offense of reckless manslaughter. Defense counsel did not raise diminished capacity or request a diminished capacity charge.
The jury convicted defendant of both charges. On November 30, 1995, the trial judge sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility on the murder conviction, and to a concurrent five-year term of imprisonment on the weapon conviction. The judge also imposed the appropriate assessments.
Defendant appealed his conviction and sentence. On appeal, he contended, in part, that the trial judge should have charged reckless manslaughter as a lesser included offense of murder. In his appellate brief, he referred to his defense as "intoxication/diminished capacity," and argued that "applicable precedent establish[es] that the reckless manslaughter instruction is clearly warranted when a colorable diminished capacity defense is raised."
In an unpublished opinion, another panel of this court affirmed, concluding the judge's refusal to charge reckless manslaughter constituted harmless error. State v. Jones, No. A-2930-95 (App. Div. July 10, 1997) (slip op. at 4). The panel reasoned that by convicting defendant of murder, the jury rejected his intoxication defense and his claim that his conduct was not purposeful or knowing but only reckless, which is an element of both aggravated manslaughter and reckless manslaughter. Ibid. The panel stated in a footnote, "[t]o the extent defendant suggests that he suffered from a diminished capacity, we also note that where the defendant's facilities were or could have been affected by voluntary intoxication, mental disease and defect is not a defense to a crime of reckless culpability." Ibid. Defendant filed a petition for certification, which our Supreme Court denied. State v. Jones, 152 N.J. 191 (1997).
On April 24, 2000, defendant filed his first pro se PCR petition contending, in part, that trial counsel was ineffective for raising an intoxication defense instead of diminished capacity, which would have provided a basis for a reckless manslaughter charge, and in failing to request a diminished capacity charge. The trial judge concluded that defendant was entitled to a hearing and appointed counsel to represent him. On October 17, 2002, PCR counsel withdrew the petition "without prejudice."
On January 31, 2003, defendant filed a second pro se PCR petition, again raising claims of trial counsel's deficiency based on the diminished capacity issue.*fn1 In opposition, the State argued, in part, that defendant's petition was time-barred. Defendant responded that excusable neglect existed for his untimely filing because he was unaware that PCR counsel had withdrawn the first petition and counsel failed to respond to his letters.
After an evidentiary hearing, at which defendant testified, the judge permitted the petition to proceed based on "certain constitutional issues," which the judge did not identify. The judge denied the petition, finding that defendant failed to present specific facts supporting his ineffective assistance of counsel claims. Specifically as to diminished capacity, the judge found as follows:
Now, the defense as I've indicated was an intoxication theory and in my view, that was vigorously pursued. Dr. [Simring] testified. He was experienced. His qualifications were set forth. He's a psychiatrist and he concluded that the defendant was an alcoholic and was severely intoxicated at the time of the killing.
[Dr. Simring] further concluded that the defendant's drinking prevented him from forming a purposeful or knowing state of mind. And in analyzing this intoxication defense as opposed to diminished capacity, the proofs were more available as far as the intoxication defense is concerned because there was the . . . 151 rum, there was the consumption, there were witnesses that the defense attorney called that really provided factual support for the intoxication defense.
In my view, this was a tactical decision. [Defense counsel] had witnesses that could corroborate what the defendant was saying and the defendant himself, was willing to corroborate that.
On appeal, defendant raises the following contentions:
A TRIAL ATTORNEY'S STRATEGIC MISCALCULATIONS WHICH ARE OF SUCH MAGNITUDE AS TO THWART THE FUNDAMENTAL GUARANTEE OF A FAIR TRIAL MAY SUSTAIN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF THE DEFENDANT'S TRIAL ATTORNEY TO REQUEST A CHARGE WITH RESPECT TO AN ISSUE SO ESSENTIAL AND FUNDAMENTAL TO THE DEFENDANT'S DEFENSE WAS CONSTITUTIONALLY INEFFECTIVE ASSISTANCE.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE DIMINISHED CAPACITY DEFENSE IRRESPECTIVE OF A REQUEST BY COUNSEL DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
SOLE RELIANCE BY THE DEFENDANT'S TRIAL ATTORNEY ON THE INTOXICATION DEFENSE RESULTED IN CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL WHERE IT BLINDED HIS PERCEPTION OF THE CASE.
In opposition, the State contends that the petition is time-barred pursuant to Rule 3:22-12(a), and that the diminished capacity issue is barred pursuant to Rule 3:22-5 because it was adjudicated in defendant's direct appeal.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus" and thus "a safeguard to ensure that a defendant was not unjustly convicted." State v. Afandor, 151 N.J. 41, 49 (1997). A PCR petition may not be used as a substitute for a direct appeal of the conviction, or as a substitute for a motion that could be brought "incident to the proceedings in the trial court." R. 3:22-3. The Rules accordingly bar the assertion of any "ground for relief" not previously raised at trial or in an appeal, R. 3:22-4, or that could have been raised at trial or on appeal but was not. Afandor, supra, 151 N.J. at 50. The bar also applies if there was a prior post-conviction review proceeding in which the ground for relief was not raised. R. 3:22-4. That procedural bar does not apply if the ground for relief "could not reasonably have been raised in any prior proceeding," or if enforcing the bar "would result in fundamental injustice" or otherwise "would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4.
In addition to the procedural bar, "[a] prior adjudication upon the merits of any ground for relief is conclusive," regardless of whether it was made at trial or in a prior PCR proceeding, or in "any appeal taken from such proceedings." R. 3:22-5. This res judicata bar applies to any claim that is either "identical or substantially equivalent to" the adjudicated claim. State v. Marshall, 173 N.J. 343, 351 (2002).
Except for a petition to correct an illegal sentence, the general time limit on a PCR petition is five years after "rendition of the judgment or sentence sought to be attacked[,]" unless the additional delay reflects the defendant's "excusable neglect" or to avoid an injustice R. 3:22-12(a); State v. DiFrisco, 187 N.J. 156, 167 (2006).
We reject the State's contention that the diminished capacity issue was adjudicated in the direct appeal. The footnote in the opinion did not state that raising diminished capacity would have been futile, which might have satisfied the substantially equivalent standard. Rather, the footnote merely emphasized that, like the intoxication defense, diminished capacity in combination with voluntary intoxication cannot, by law, negate reckless culpability. Thus, we conclude that Rule 3:22-5 does not bar defendant's PCR petition. In addition, although defendant made no persuasive showing of excusable neglect, and the trial judge did not articulate what, if any, constitutional violations occurred, we will nonetheless address the merits of this appeal.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel has the heavy burden of proving that trial counsel committed serious professional errors, and that those errors prejudiced him or her by causing an unfair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1084). Prejudice is shown by proof creating "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.
Judicial scrutiny of counsel's performance must be highly deferential. A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. State v. Fritz, 105 N.J. 42, 60-61 (1987). That standard does not require "the best of attorneys," but rather that the attorney not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). The strong presumption that counsel has exercised sound trial strategy is grounded in "the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial[.]" State v. Arthur, 184 N.J. 307, 319 (2005).
Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing Davis, supra, 116 N.J. at 357), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). Applying all of these standards, we agree with the trial judge that there was nothing deficient about trial counsel's performance.
N.J.S.A. 2C:4-2 states as follows:
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.
Expert testimony is necessary to establish that a defendant suffered from a mental disease or defect and that the defendant's mental deficiency could have affected his or her cognitive capacity to form the mental state necessary for the commission of the crime. State v. Bauman, 298 N.J. Super. 176, 197 (App. Div. 1997) (quoting State v. Galloway, 133 N.J. 631, 647 (1993)).
Defendant presented no expert evidence that he was diagnosed as suffering from paranoia, that paranoia and depression are mental diseases or defects, or that these conditions impaired his cognitive functioning so as to render him incapable of acting purposefully and knowingly. Rather, although Dr. Simring diagnosed defendant as suffering from depression, he never diagnosed defendant as suffering from paranoia, and he never concluded that these conditions were mental diseases or defects that affected defendant's cognitive capacity to form the mental state necessary for the commission of the crime of murder. Rather, the doctor predicated his opinion that defendant was incapable of acting purposefully and knowingly solely on defendant's extreme intoxication.
Even if Dr. Simring had included defendant's depression and paranoia in his opinion, diminished capacity would not have been available to defendant. Depression and anti-social disorders do not purport to establish an inability to have formed the mental state required for the offense of purposeful and knowing murder. State v. Russo, 243 N.J. Super. 383, 396 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991). Also, the combination of an underlying mental disease and alcohol intoxication, which may cause a defendant to lose control of his impulses, does not entitle a defendant to an instruction on diminished capacity in prosecution for murder. State v. Carroll, 242 N.J. Super. 549, 560-61 (App. Div. 1990), certif. denied, 127 N.J. 326 (1991).