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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...