On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-12-2297.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 15, 2010
Before Judges Fisher and Fasciale.
Defendant, Ruel Russell, appeals from an August 26, 2008 order denying his petition for post-conviction relief. He argues that his trial counsel was ineffective because he failed to move for a severance, failed to consult an expert toxicology witness, and conceded guilt on all but one charge without his consent. We reverse and remand for an evidentiary hearing.
The facts giving rise to defendant's convictions are set forth in our earlier unreported opinion. State v. Russell, No. A-6737-02 (App. Div. July 1, 2005). We now summarize the facts for this appeal.
On the evening of May 4, 2000, defendant knocked on the door of Carlene Findley and Cleve Brown and inquired whether they wanted renovation work done. Once inside the home, defendant pointed a gun at Brown's head. Findley heard the commotion from upstairs, went into a bedroom, and dialed 911. Defendant went to the front door, motioned with his gun for Vanshon Scott to enter the house, and walked Brown upstairs into the bedroom where Findley was hiding. Findley opened the door, defendant pointed the gun at her, and she hung up the phone.
After defendant demanded "fifty pounds of weed," Scott entered the room, put on rubber gloves, dropped a duffel bag next to the dresser, and began binding Brown and Findley's hands and feet. At this point, the police arrived and both defendant and Scott were apprehended.
The police located "orange[-]handled wire cutters and a white envelope" inside the duffel bag. The envelope contained two syringes filled with silver liquid, later identified as elemental mercury. The state called Stephen Andrews to testify as an expert in toxicology. Andrews opined that elemental mercury is a toxic substance and could kill the victims, but he was unable to give that opinion with certainty.
Scott testified at trial that: defendant was the mastermind of the armed robbery and burglary; defendant directed Scott when to enter the house and tape the victims; defendant explained to Scott that the liquid in the syringes was intended to make the victims forget what happened; and under duress, Scott complied with defendant's demands because defendant threatened him and he was worried about his safety and the well-being of his family.
At the conclusion of a jury trial, defendant was convicted of various offenses, including armed robbery and attempted murder, and was sentenced to an aggregate sixteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. His co-defendant, Vanshon Scott, was also convicted at the same trial, and sentenced to an aggregate ten-year prison term with an eighty-five percent period of parole ineligibility pursuant to NERA. Russell, supra, slip op at 31-32. On October 24, 2006, in response to a remand for resentencing, the judge imposed the same aggregate term of sixteen years with eighty-five percent parole ineligibility.
Following the resentence, defendant filed a PCR petition, arguing that his counsel was ineffective because his trial attorney: (1) failed to move to sever his trial from Scott's trial; (2) failed to consult an expert about whether the elemental mercury was lethal; and (3) conceded guilt to the lesser charges without defendant's consent. Defendant also argued his PCR was not barred by either Rule 3:22-4 or Rule 3:22-5.
The PCR judge denied the petition without conducting an evidentiary hearing. Instead, he concluded that defendant was barred procedurally from arguing that his counsel failed to move to sever his trial from Scott's trial. The judge explained that even if a motion to sever had been made before trial, he would have denied it since defendant and Scott's positions were not "mutually exclusive or antagonistic." The PCR judge also rejected the idea that defense counsel's failure to consult a toxicology expert ...