October 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RUEL RUSSELL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 was ineffective and did not address defendant's argument that his counsel conceded guilt to the lesser charges without his consent.
On appeal, defendant raises the following arguments:
TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND TO MAKE BASIC MOTIONS REQUIRES AN EVIDENTIARY HEARING
COUNSEL'S FAILURE TO CONSULT AN EXPERT AS TO THE ALLEGED DEADLY WEAPON, THE SYRINGES, WAS INEFFECTIVE ASSISTANCE OF COUNSEL
A. The State's Expert Provided Inadmissible and Erroneous Opinions
DEFENSE COUNSEL'S FAILURE TO MOVE FOR A SEVERANCE WAS PER SE INEFFECTIVE ASSISTANCE
THE DECISION TO CONCEDE GUILT AND NOT TO DEFEND ANY CHARGE BUT MURDER WITHOUT THE DEFENDANT'S CONSENT REQUIRED EVIDENTIARY HEARING
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS IS CONSTITUTIONALLY REQUIRED
THE CUMULATIVE ERRORS CREATE A REASONABLE PROBABILITY THAT THE OUTCOME WAS AFFECTED
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691-92 (1984). "Whether retained or appointed . . . , [counsel must] ensure that the trial is fair . . . ; [therefore], 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2062-63, 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 affords the same right to counsel. N.J. Const. art. I, § 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists "[A] reasonable probability 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 precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.
[Ibid. (citations omitted).]
A PCR is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4.
We now turn to defendant's three arguments for why defense counsel was ineffective, and that he was entitled to an evidentiary hearing.
First, defendant contends that his counsel was ineffective because he failed to seek severance of his and Scott's trials. He argues that the PCR judge erred by dismissing this argument as time-barred. We agree.
Relying on Rule 3:22-4, the PCR judge rejected defendant's argument on procedural grounds. "Any ground for relief not raised in a prior proceeding . . . is barred from assertion in a proceeding under [Rule 3:22-4] . . . unless . . . (a) that . . . ground . . . could not reasonably have been raised [previously] . . . ." Ibid. Defendant's argument that his counsel was ineffective by not moving for a severance could not reasonably have been raised previously because the factual record needed to consider the sufficiency of that argument was not contained in the record existing at the time of the direct appeal.
Having duly made the argument concerning his trial attorney's failure to seek a severance -- the reason for that omission not having been disclosed during trial -- the judge should have permitted an evidentiary hearing so that defendant's trial attorney's reasons for failing to seek a severance could have been developed. Certainly, the contention that defendant's position at trial was at odds with Scott's is suggested by the evidence adduced at trial. At that time, Scott asserted the defense of duress and testified that defendant threatened his and his family's well-being if he refused to cooperate in committing the crimes.
When considering whether to sever, the issue is whether defendants' positions are "antagonistic and mutually exclusive or irreconcilable." State v. Brown, 118 N.J. 595, 605 (1990). The mere existence of hostility, conflict, or antagonism between defendants is not enough to grant severance; rather, the defenses presented must be "'antagonistic at their core.'" Id. at 606 (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981)). Even though "[t]he test for granting severance . . . is a rigorous one," Brown, supra, 118 N.J. at 605-06, an evidentiary hearing will assist the PCR judge in determining, on the merits, whether counsel was ineffective.
Second, defendant contends that his trial attorney was ineffective because he failed to consult an expert about whether the elemental mercury was lethal. We are satisfied that defendant presented a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing to explore why his counsel failed to consult or present an expert witness.
The State's expert, Andrews, opined without objection that elemental mercury is a toxic, poisonous substance that is lethal and can be absorbed into the skin. In summation, the assistant prosecutor argued that Scott wore gloves to avoid contact with the mercury. He urged the jury to find that there were "two deadly syringes . . . full of mercury," and that the two syringes containing a "considerable quantity" of "deadly poison" were intended to kill the victims.
Defendant presented to the PCR judge a report of Richard Saferstein, Ph.D., a forensic scientist specializing in toxicology. Dr. Saferstein opined that "injection of elemental mercury into a human would not result in the death of the individual." That proffer is consistent with the defense that the liquid was intended to make the victims forget what happened, not kill them.
The PCR judge concluded that trial counsel's cross-examination of Andrews was effective, Saferstein's opinions would be cumulative, and it was irrelevant whether the substance was lethal. We disagree. Andrews was the only expert to testify about the lethality of the elemental mercury in the syringes. In seeking post-conviction relief, defendant provided an expert report, which opined that the contents of the syringes were not lethal. Certainly, it would have been more advantageous to defendant to have called such an expert at trial to contradict Andrews' opinions rather than to attempt to rebut Andrews' opinions through cross-examination. We remand so that trial counsel's reasons for not seeking or securing an expert such as Saferstein may be further explored and developed.
Third, defendant contends that his trial counsel was ineffective because counsel conceded guilt to the lesser charges without defendant's consent. In his opening statement, defendant's counsel explained:
You are going to convict Mr. Russell of certain crimes that he's been charged with in the indictment. What I quarrel with and what I want to address in my opening very briefly, and I'll address again in my summation, is that Mr. Russell is guilty of an attempted murder. I would submit to you, giving Mr. Russell the benefit of all reasonable inferences, which you must do under our law and presuming that he's innocent and holding the State to their obligation[,] that they must prove that he committed attempted murder beyond a reasonable doubt, you're not going to be able to reach that conclusion and you're going to find him not guilty of attempted murder.
And in his closing statement he said, "In regards to what happened in Asbury Park, I'm going to confine myself to the charge of attempted murder."
On remand, counsel should explain why guilt was conceded on the lesser charges and whether defendant consented to this trial strategy. Without an evidentiary hearing, we are unable to determine why counsel conceded the lesser charges or whether defendant consented.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.
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