July 1, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IBRAHIM B. SAMHA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-06-1280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Baxter and Alvarez.
Defendant Ibrahim Samha appeals from the August 19, 2008 decision denying his petition for post-conviction relief (PCR). We affirm.
After a jury trial, defendant was convicted of the following: first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three); third-degree aggravated assault for causing significant bodily injury, N.J.S.A. 2C:12-1b(7) (count four); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eight). He was acquitted on two counts of third-degree terroristic threats (counts nine and ten).
Defendant was sentenced on October 15, 2004, on count one to twenty-five years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent fifteen-year term, also subject to NERA, was imposed on count two. The convictions on the remaining counts were merged into count two.
Defendant appealed and, in an unpublished decision, we affirmed. State v. Samha, No. A-1978-04 (App. Div. Mar. 20, 2007). The matter was remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). Defendant's petition for certification was denied on June 1, 2007. State v. Samha, 192 N.J. 68 (2007). Defendant's PCR petition was filed pro se on July 23, 2007; assigned counsel thereafter filed a brief. The motion court denied the PCR application after oral argument on August 19, 2008.
As developed during the trial of the matter, the charges resulted from the thwarted robbery of a convenience store. During the incident, defendant pistol-whipped the elderly store owner. Defendant and a co-defendant carried the victim to a rear aisle in the store, duct-taped his mouth closed, and taped his feet and hands together behind his back. When a neighbor overheard the noises emanating from the store through an adjoining wall, she and her husband called police.
Alan Pollock, a regular customer who tried to enter the store and found it locked, looked in the window and saw two men inside. One man attempted to wave him away. The second man, whom Pollock described as "an older, heavier-set individual," with "short hair and [a] darker complexion," wearing blue latex gloves, was tearing phone cards off a pegboard on the wall behind a counter and throwing them into a bag or a box.
Police arrived as Pollock was trying to call the authorities from a nearby phone booth. When he returned, he saw the two men he had seen in the store, as well as the victim, being escorted out of the premises by police. During the trial, Pollock identified defendant as the man he had witnessed tearing phone cards off the wall. When police searched the premises, they found a gun, a roll of duct tape, and numerous smaller pieces of tape in one of the rear aisles. They also found a number of prepaid phone cards in a shopping bag; others were scattered on the floor behind the counter.
At trial, defendant testified that the victim had paid him a $1000 down-payment for the phone cards prior to the incident, promising to pay the balance later. Defendant's cousin testified as well, and he said that he had supplied defendant with some prepaid phone cards for him to sell. Defendant insisted that the victim had called him on March 23, 2003, and invited him to the store the following day so he could pay him the rest of the money due for the balance due on the purchase of the phone cards.
Defendant also testified that when he went to the store on March 24, 2003, he was under the influence of "marijuana, purple haze and... ecstasy," which he had consumed because he felt depressed and suicidal. Defendant claimed he did not recall much of the evening's events because of his state of intoxication, but remembered the victim unlocking the door, letting him in, and telling him he did not have the rest of the money. The next thing defendant said he remembered was the victim hitting him on the chin with his gun, after which the two men struggled for the weapon. Defendant also said he must have blacked out after the victim hit him with the pistol because he sometimes had blackouts when he was depressed. He also remembered being cuffed by police and driven to jail.
The State called Sherry Batelli, an EMT technician who treated defendant after his arrest, as a rebuttal witness. She was called to the Garfield Police Department to treat defendant for minor injuries to his face, including a half-inch laceration to the bottom of his chin and a small abrasion above his left eye. She stated that defendant was oriented as to time, person, and place, and that his eyes responded to light in a normal fashion. Batelli testified that his eyes were checked because unresponsive pupils are a "tell-tale sign" that a person is under the influence of drugs. Based on her interactions with defendant, she concluded that defendant did not need additional testing as to intoxication because the reactions of his pupils were normal. Furthermore, her notes indicated that defendant was oriented as to person, place, and time, and his speech was clear.
Defendant unsuccessfully attempted to introduce an expert report from Dr. Edward J. Dougherty, a psychologist, in order to buttress his defense of diminished capacity. That issue was extensively addressed on defendant's direct appeal because he contended that the court's failure to admit the report and the testimony, as well as the court's refusal to admit his mother's testimony with reference to his mental functioning, were prejudicial errors.
Shortly before defense counsel filed her brief in support of defendant's PCR motion, she produced an additional report from Dougherty. It was prepared post-verdict, after Dougherty reviewed some school and hospital records not previously provided to him. PCR counsel contended that the more recent report warranted a new trial because Dougherty now stated that the information provided in the records, when added to his initial opinion, supported "an opinion of diminished capacity, that is because of the presence of a mental disease or defect he did not act in a knowing and purposeful manner at the time of the incident."
On this appeal, defendant asserts the following errors:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
A. Trial counsel did not sufficiently investigate and obtain the records necessary to permit Dr. Dougherty, the retained psychological expert, to offer a diminished capacity defense on defendant's behalf at trial.
B. Trial counsel failed to object to hearsay.
C. Trial counsel failed to object to improper references to defendant's poverty and drug use.
D. Trial counsel failed to seek severance of counts 9 and 10, which arose from a separate incident, from being tried with the remaining charges.
E. At the very least, the verified petition filed by defendant below, supported by Dr. Dougherty's own submission, established a prima facie case of ineffective assistance of trial counsel that entitled defendant to an evidentiary hearing.
F. Remand for further consideration is warranted also because post-conviction counsel below did not have access to defendant's trial file.
Defendant pro se adds the following:
THE PCR COURT'S DENIAL OF SAMHA'S PETITION FOR A NEW TRIAL WAS ERRONEOUS AND NOT IN LINE WITH CONTROLLING CASE LAW AND SHOULD THEREFORE BE REVERSED.
THE PCR COURT'S CONCLUSIONS OF LAW AND FACT, AS IT APPLIED TO A DIMINISHED CAPACITY DEFENSE, WAS ERRONEOUS IF NOT UNREASONABLE, AND DENIED DEFENDANT OF [SIC] DUE PROCESS AND THE RIGHT TO A FAIR HEARING.
JUDGE VENEZIA SHOULD BE DISQUALIFIED FOR CAUSE AS HE HAS STATED OPINIONS BRINGING INTO QUESTION WHETHER DEFENDANT CAN GET A FAIR HEARING IN HIS COURT ON THIS MATTER.
Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691 (1984). "'[T]he right to counsel'" means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, ¶ 10.
To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, "defendant must show that counsel's performance was [truly] deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish "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. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). "The benchmark" for assessing ineffective assistance of counsel claims is whether counsel's "professional errors 'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
Plaintiff's first contention is that trial counsel was ineffective due to her failure to obtain school and medical records for Dougherty's review pre-trial as to defendant's diminished capacity defense. In the 2008 PCR report, Dougherty reiterates earlier statements, namely, that defendant was in special education classes and was classified as emotionally disturbed when he was a child, and that he reported a history of problems with obtaining employment, as well as with drugs and alcohol. Pre-trial, defendant had admitted to Dougherty his prior use of marijuana, ecstasy, cocaine, and heroin. Dougherty had also previously noted that defendant "was homeless for a period of time." Defendant claimed to be suicidal, and records indicated that he attempted to hang himself during his incarceration. In his pretrial interview, defendant told Dougherty that he had been suicidal even prior to his incarceration, that he was under the influence at the time of the incident, and that he did not have a clear recollection of the incident. Dougherty's pretrial reports indicated that defendant's intellectual functioning was in the borderline range and that he had limited academic skills. He was also diagnosed as having a severe depressive disorder.
After our review of the reports, we conclude that they are not material to the issue of diminished capacity. To establish that defense, a defendant must present testimony that he or she did not have the ability to form an intent to act purposely or knowingly as required by N.J.S.A. 2C:4-2. Although Dougherty's 2008 report now explicitly states that, in his opinion, defendant's mental health history and condition warrant a diminished capacity defense, he still does not explain how defendant's diagnoses have a bearing on defendant's cognitive functioning at the time of the crime. This connection is necessary in order for the defense of diminished capacity to be raised. See State v. Galloway, 133 N.J. 631, 647 (1993).
Dougherty does not explain how defendant's mental status prevented him from appreciating the nature and quality of his acts and from having the capacity to act knowingly and purposely at the time of the offenses. See State v. Bauman, 298 N.J. Super. 176, 198 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defendant's depression, anger management problems, substance abuse, limited academic skills, and personality disorder are irrelevant unless they affected his ability to formulate the requisite mental state. See State v. Russo, 243 N.J. Super. 383, 393-96 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991).
In other words, Dougherty's opinion, characterized at its best, is an inadmissible net opinion that fails to explain the "'why and wherefore.'" Polzo v. County of Essex, 196 N.J. 569, 583 (2008) (citation omitted). The net opinion rule requires that an expert explain the reasons for his or her opinion and the facts upon which that opinion is based. Creanga v. Jardal, 185 N.J. 345, 360 (2005). If no causal connection is established, a party is not permitted to present the opinion to the jury. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525-26 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008).
Here, despite Dougherty's diagnosis, he did not explain the reasons the conditions at the time of the offense meant defendant lacked the requisite mental capacity. Without such an explanation, the use of his report would violate the net opinion rule.
Furthermore, the defense would have had little likelihood of success in the face of the contradictory circumstances surrounding the crime, which cut against the grain of any claim of diminished capacity. Defendant's conduct was clearly that of a person implementing a calculated plan with the requisite mental status. Defendant and his co-defendant had a getaway driver stationed outside the store, and the person communicated with the men in the store via cell phone. Defendant entered the premises carrying a handgun. His co-defendant brought duct tape to the store, which he used to subdue and restrain the victim. Defendant wore gloves during the crime, presumably in an effort to prevent the subsequent detection of fingerprints. When defendant realized police had arrived, he and his co-defendant released the victim and he begged for the victim's forgiveness, stating he needed money to pay his bills. As the victim described it, defendant and his co-defendant "were like a team." Lastly, the emergency technician who examined defendant immediately after the incident opined that he was not under the influence of either alcohol or drugs based on his ability to speak, his orientation as to time, place, and person, and the reaction of his pupils to light.
We therefore do not agree that counsel's failure to supply to Dougherty additional medical or school records was ineffective representation. The report would not have been admissible because it was a net opinion. Assuming it were admissible, it would likely have been given little weight because it flies in the face of the facts. The result of the proceeding would not have been any different had the information been presented to Dougherty. The failure to meet the second prong of the Strickland test means defendant has not established a prima facie case of ineffective assistance of counsel.
Defendant further contends his trial attorney was ineffective because he did not object to an entire line of questioning by the prosecutor, of an investigating officer, regarding the victim's purchase of the phone cards located in the store. The officer testified about a paid invoice the victim produced corroborating his statement that he purchased the phone cards from someone other than defendant. The seller was identified as "Maruti Communications Incorporated" (Maruti). When asked if Maruti had "any connection with any of the defendants," the officer responded that he did not know. The victim, who also testified during the trial, said that he had never seen defendant until the night of the incident.
"Hearsay [evidence] is defined as 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" State v. Long, 173 N.J. 138, 152 (2002) (citing N.J.R.E. 801(c)). The officer's testimony was clearly hearsay, as it was being introduced for the purpose of establishing that the phone cards had been purchased from another source. But the victim himself said he was not acquainted with defendant.
Defendant was arrested at the scene of the crime. Pollock saw defendant grabbing phone cards from the store wall while wearing blue latex gloves. Neighbors heard the conversations between the would-be robbers and the victim, and noises from the assault, and called police, who arrived promptly. Under these circumstances, even if the testimony had been excluded, the jury would likely not have believed that defendant was merely collecting money owed on account. Assuming the jury had accepted defendant's theory that he was present at the store only to collect a debt, the evidence was overwhelming that defendant nonetheless committed the various crimes of which he was convicted. When collecting a debt, a creditor is not permitted to assault, immobilize, threaten, or kidnap the debtor nor allowed to forcibly remove the items for which the debt is owed. This argument also fails to meet the second prong of the Strickland test, which means defendant has failed to establish a prima facie case of ineffective assistance on this basis. See N.J.S.A. 2C:12-1; N.J.S.A. 2C:13-1.
Defendant asserts that the prosecutor's line of questioning with regard to defendant's need to support himself to pay for bills and drugs, pursued without objection, was a further example of ineffective assistance of counsel. This argument also lacks merit.
Defendant testified that he had no full-time employment at the time of the incident, that he was doing odd jobs including selling phone cards, and that he took drugs. Testimony that connects a defendant to a crime by presenting proofs to a jury that he has no apparent source of income, thereby implying he is more likely to commit a crime, is improper. State v. Terrell, 359 N.J. Super. 241, 245-47 (App. Div.), certif. denied, 177 N.J. 577 (2003). "The introduction of evidence regarding whether... a defendant has a regular source of income is, when a collateral issue, prohibited in any form." Id. at 247. In this case, however, when police arrived, defendant asked the victim to forgive him because he needed money for bills, and the victim so testified. Defendant's conduct at the scene and his own words opened the door to questioning by the State with reference to defendant's need for money. It cannot be seriously suggested that the failure to object to the cross-examination, when defendant's own direct testimony included statements about his lack of full-time work, significantly contributed to the conviction of defendant. This assertion also fails to meet the Strickland standard.
Defendant next urges that his trial counsel's failure to pursue severance of counts nine and ten, of which defendant was acquitted, was ineffective assistance of counsel. The counts arose from defendant's threats to police officers after the arrest.*fn1 Defendant was acquitted of these charges. If anything, these acquittals bespeak the jury's ability to weigh the evidence and appropriately apply the reasonable doubt standard. The argument that the outcome would have been different had the charges been severed does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's final Strickland issue is that it was error for the court not to conduct an evidentiary hearing as the failure of counsel to obtain the materials relied upon by Dougherty in his 2008 opinion, as well as all the other errors, established a prima facie case. Only when a prima facie case is established need an evidentiary hearing be conducted. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div. 1999). In light of our conclusion that counsel was not ineffective at all, we do not agree that a prima facie case was established on a cumulative basis. Accordingly, no evidentiary hearing was required.
Lastly, defendant requests we remand the matter because PCR counsel "did not have access to defendant's trial file." No suggestion is made that the file contained essential information that would have led to a different outcome on the PCR application. In fact, no specific suggestion is made as to anything the file might have contained that would have enabled defendant to present additional PCR issues for the motion judge's consideration. In the absence of any such suggestion, and in view of the overwhelming proofs presented against defendant, we decline to remand the case for this reason.
Defendant's pro se submission in support of his appeal centers upon his asserted diminished capacity defense, which we have addressed at some length. We do not consider these claims to warrant further discussion in a written opinion.
R. 2:11-3(e)(2). In similar fashion, we will not address his request that the PCR judge be recused, as the matter is not being remanded. Ibid.