On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-08-1075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded Argued January 21, 2010
Before Judges Sapp-Peterson and Espinosa.
In this post-conviction relief (PCR) appeal, we previously remanded this matter to the trial court to conduct an evidentiary hearing to determine whether trial counsel's failure to raise a diminished capacity theory was trial strategy or ineffective assistance of counsel so serious as to have deprived defendant of his constitutionally guaranteed right to a fair trial. State v. Hreniuk, No. A-5667-04 (App. Div. August 16, 2007). After conducting the hearing, the trial court denied the petition, finding that the failure to raise diminished capacity represented sound trial strategy. We affirm.
Defendant was indicted for first-degree murder, but a jury convicted him of aggravated manslaughter along with aggravated assault and weapons offenses arising out of the killing of his estranged wife. Defendant was sentenced to serve an aggregate thirty-year prison sentence with a sixteen-year period of parole ineligibility. The facts presented to the jury are set forth in our earlier opinion which we recite herein:
According to the trial testimony of defendant's daughter Jessica, defendant had ostensibly come to the marital home to clean out the pool. She and defendant had a brief conversation about her yearbook, which escalated into an argument when defendant looked at a picture of one of her girlfriends. Defendant told Jessica that her girlfriend was responsible for the breakup of his marriage. Jessica asked her father to leave and threatened to call the police if he did not do so. He left and walked outside to the garage. Her mother arrived home shortly thereafter and together they also looked at her yearbook until her mother went upstairs to change clothes. A short time later, while talking on the phone with a friend, she heard her mother scream her name. She hung up the phone and ran upstairs to the bathroom, from where she heard noises.
When Jessica arrived at the bathroom, she saw defendant stabbing her mother with a "very large" knife. She tackled defendant and threw him into the bathtub before running to call 911. Defendant got out of the tub and resumed his attack upon her mother, whom Jessica saw crawling while she was on the phone. Her mother passed out and defendant started to stab himself. Police arrived shortly thereafter and took defendant into custody. He acknowledged that he had consumed about a pint of wine. Defendant was transported to a nearby hospital where he was treated for his injuries and removed to a private room where he remained with an officer, Nicholas Mirandi. Mirandi testified that during this time, defendant made inquiries about his wife and explained that his wife did not inflict any of the stab wounds to his chest and hand. Defendant also told Mirandi that he did not want to live anymore and asked that Mirandi "put a bullet into his head and end it." Mirandi testified that at the time defendant made these statements, defendant was coherent.
Three years prior to the killing, defendant was diagnosed as suffering from dementia and multiple cognitive defects including memory impairment and disturbance of executive functioning. He claimed that his trial counsel was aware of his condition prior to trial and that he discussed his Alzheimer's disease and blackouts with trial counsel, who nonetheless failed to raise diminished capacity.
During the evidentiary hearing conducted pursuant to our remand, trial counsel testified that he met with defendant before the case was presented to the grand jury and they discussed defendant's relationship with the decedent, including the fact that there had been acts of domestic violence he had committed against his wife. He indicated that defendant related his medical history to him and stated that he did not remember killing his wife. Trial counsel explained further that he retained a psychiatrist, who was not only unable to express an opinion that defendant was insane, but also was unable to conclude that defendant's mental capacity, at the time of the killing, was diminished. ...