May 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY HRENIUK, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
August 16, 2007
Submitted April 18, 2007
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.
[Id. at 2-3.]
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. Additionally, trial counsel testified that he was aware of the opinions expressed by the State's expert that could potentially undermine the opinions expressed by defendant's expert.
In summarizing his thought processes at the time he was preparing defendant's defense, trial counsel testified:
Okay. [Defendant] wanted a psychological defense. I mean, that was a constant request from him. After getting [V]erdon's*fn1 report[,] I realized we didn't have a pure psychological defense. It was always going to be intoxication.
[Defendant] had a number of things which were very, very sympathetic in terms of the Alzheimer's, in terms of the traumas, and all that I would have loved to [get] in front of the jury just so that they could understand his behavior at that date. The question is whether getting them in front of the jury, you know, there's always plusses and minuses to everything obviously when you go to trial. The plusses of getting them in front of the jury in my view were outweighed by the minuses of having previous assaults referred to.
I would have liked to have fleshed out the intoxication defense more by getting an expert, but I wasn't willing to take the risk. I felt the expert was going to make it more likely [that] he was convicted of murder[,] bottom line.
The trial court found trial counsel's testimony credible and stated:
What is clear from the testimony today is that the defendant himself wanted such a defense presented and that that desire never subsided from the outset of the representation by [defense counsel] continuously throughout the trial.
What is further evident is that trial counsel . . . explored that desire not only because of what the defendant said to him, but also because of the information available to him early on in his representation of the defendant that suggested cognitive impairment as well as other medical issues. [Defense counsel] indicated that he was in possession of a report of Dr. Powell*fn2 that he deducted was generated by some type of institutional protocol. And that based upon what he believed at the time was a beneficial referral, sought an expert's report from Dr. [V]erdon. In preparation for that report, Dr. [V]erdon was supplied with reports and information from trial counsel including the report of Dr. Powell.
Trial counsel spoke to Dr. [V]erdon and received a report from him, which although opined that defendant had serious cognitive and alcohol problems, could not opine he was insane and that would not provide a "pure" diminished capacity defense; that inextricable from his opinion was the intoxication aspect.
What is further clear from the testimony of trial counsel is that his decision and thought process of whether to pursue such a defense in light of his client's unrelenting desire for it was not arrived at without considerable deliberation.
A weighing of both the positive[s] and negatives of such a decision, the ultimate decision he made not to pursue such a defense even in hindsight cannot be deemed unreasonable, uninformed, or unprofessional.
[Defense counsel], trial counsel in this case, is a well seasoned, experienced criminal defense attorney having been admitted to practice in 1985 and having worked for the Public Defender's Office for his first three years as an appellate lawyer handling adult criminal appeals and thereafter as a trial lawyer having tried[,] to the date of this trial[,] approximately [forty] trials with one-third of those trials being of the first to second[-]degree nature and specifically five to six homicides. He was no neophyte to the criminal defense arena.
[Defense counsel] testified that his concern in the face of a less than pure diminished capacity defense expert report and the very real potential of any expert report that would have involved consideration of prior domestic violence assault situations would[,] in effect, notwithstanding any limiting instruction by the [c]court to the jury, seal a murder conviction for this defendant.
[Defense counsel]'s concern was credibly expressed when he said he believed acquittal was not in the cards and that he was trying to get the best result. The best result[,] practically speaking[,] was avoidance of the guilty verdict on the murder count, which he felt was achievable with the voluntary intoxication evidence and without a pure diminished capacity defense expert opinion. What he was left with was of great concern. And that was diminished capacity that would include the intoxication evidence. And because of the expert's ability to review and rely upon information not always substantively admissible, the concern was that damaging information concerning previous domestic violence assault situations would be before the jury and could result in a determination that the defendant acted knowingly and purposely and was, therefore, guilty of the murder count, which outweighed, in his thinking, the likelihood of success by way of acquittal if he went with the diminished capacity defense that inextricably involved the intoxication aspects.
The what[-]if scenarios presented by argument today are clearly speculative. And trial counsel's response to why they were not pursued relied upon his experience, which was not speculative.
The trial court concluded that defendant failed to satisfy the first prong of the two-pronged test for post-conviction relief based upon ineffective assistance of counsel and denied defendant's petition.
On appeal, defendant raises the following points:
THE LOWER COURT'S ORDER DENYING POST[-] CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
B. DIMINISHED CAPACITY DEFENSE.
C. TRIAL COUNSEL'S PERFORMANCE AND THE FRITZ STANDARD [State v. Fritz, 105 N.J. 42 (1987).]
In his supplemental brief, defendant raises the following additional points:
THE DECISION BY COUNSEL TO ABANDON APPELLANT'S DIMINISHED CAPACITY DEFENSE WAS OBJECTIVELY UNREASONABLE.
A. DIRECT EVIDENCE OF MENTAL DISEASE AND DEFECT COULD HAVE BEEN ADMITTED THROUGH APPELLANT'S TREATING PHYSICIANS WITHOUT RISKING CROSS-EXAMINATION INTO ALLEGED ACTS OF DOMESTIC VIOLENCE.
COUNSEL FAILED TO TAKE REASONABLE STEPS TO DEFEND AGAINST THE POSSIBLE ADMISSION OF UNPROVEN REPORTS OF DOMESTIC VIOLENCE.
TRIAL COUNSEL SHOULD NOT HAVE ABANDONED APPELLANT'S DIMINISHED CAPACITY DEFENSE, WITHOUT FIRST OBTAINING APPELLANT'S INFORMED CONSENT, OR WITHOUT MAKING A RECORD OF THE DISAGREEMENT.
We have considered each of these points in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and reject all of the arguments raised as lacking merit. R. 2:11-3(e)(2). We affirm therefore substantially for the reasons stated by Judge Deborah J. Venezia in her oral opinion rendered on October 12, 2007. We add only the following comments.
The validity of a claim of ineffective assistance of trial counsel is judged by determining whether counsel's conduct changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062-63, 80 L.Ed. 2d 674, 691 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). Specifically, under the Strickland-Fritz test, a defendant seeking post-conviction relief based upon a claim of ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that there exists "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
As noted earlier, defendant's trial counsel conducted a reasonable investigation into defendant's mental state by retaining a psychiatrist to examine him. The expert was unable to opine, within a reasonable degree of medical certainty, that defendant suffered from diminished capacity at the time of the killing.
Not every mental disease or defect constitutes diminished capacity sufficient to negate intent. State v. Reyes, 140 N.J. 344, 360 (1995). Our Supreme Court has noted that "the drafters of the Model Penal Code recognized that 'many mentally disturbed persons are [quite] capable of acting purposefully or knowingly in the minimal senses intended by the Model Code.'" Ibid. (citations omitted).
We are satisfied the record supports Judge Venezia's conclusion that the decision to forego a diminished capacity argument was one of trial strategy, made after reasonable investigation, including consultation with a mental health professional and consideration of the fact that defendant's prior history of domestic violence was directed at the victim.
Further, under the Strickland test, trial counsel's decision not to pursue a diminished capacity defense is presumed valid. 466 U.S. at 689; 104 S.Ct. at 2065; 80 L.Ed. 2d at 694. To overcome this presumption, defendant must offer proof that there is a reasonable probability that the result of the proceeding would have been different absent counsel's conduct. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Defendant failed to offer any facts to show that counsel's decision was not valid. Defendant has merely made the bald assertion that defense counsel's decision not to offer a diminished capacity defense constituted ineffective assistance of counsel that warrants post-conviction relief. Therefore, Judge Venezia properly found that the first prong of the Strickland/Fritz test for ineffective assistance was not met. Ibid.