On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-02-0230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was found guilty by a jury of aggravated manslaughter, N.J.S.A. 2C:11-4a, and hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1), in October 2002. He was sentenced on the aggravated manslaughter count to twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), with five years parole supervision, and to a consecutive term of four years on the hindering apprehension count. Defendant's convictions and sentence were affirmed on direct appeal, State v. Peterson-Gaines, No. A-4154-02 (App. Div. May 19, 2006), and his petition for certification was denied in October 2006.
The facts regarding the underlying offenses are set forth in sufficient detail in our opinion addressing his direct appeal and need not be repeated here. Defendant did not challenge the sufficiency of the evidence in his direct appeal. He argued that reversible error was committed in the denial of his motion to suppress his confession, the admission of certain evidence and the court's refusal to charge self-defense. He also challenged his sentence and argued that his attorney's decision "to pursue only a denial defense, and to forego a diminished capacity defense" deprived him of the effective assistance of counsel. We declined to consider defendant's ineffective assistance of counsel argument, permitting it to be raised in a PCR petition and rejected all of defendant's remaining arguments as without merit.
Defendant filed a pro se PCR petition on August 29, 2007, in which he argued (1) that because, as an indigent defendant, he was denied the opportunity to present competent expert psychiatric testimony, he was unable to present a diminished capacity defense; (2) that his attorney's decision not to pursue a diminished capacity defense denied him the effective assistance of counsel; and (3) his appellate counsel's failure to raise issues on direct appeal regarding a diminished capacity defense denied him the effective assistance of counsel. Following the appointment of counsel, an amended petition and supplemental brief were filed, which raised the following issues: (1) the failure to present evidence of mental disease or defect at trial constituted ineffective assistance of counsel; (2) the failure to present evidence of defendant's inability to give a credible statement constituted ineffective assistance of counsel; (3) the cumulative errors of counsel warranted vacating defendant's convictions and sentence or an evidentiary hearing; and (4) defendant was entitled to resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).
The trial court granted defendant's request for an evidentiary hearing for the purpose of reviewing the strategy of defendant's trial counsel, Robert Corbin, Esq. Corbin testified that, after completing judicial clerkships in the Chancery and Law Divisions, he joined the Middlesex County Prosecutor's Office and worked there, in two tours, for approximately seven years. After another period in private practice, he returned to the Prosecutor's Office as First Assistant Prosecutor and remained there for approximately eight years. As both a prosecutor and defense counsel, he had extensive experience in the trial of criminal matters, including homicides.
Corbin was assigned to represent defendant by the Public Defender's office. Corbin believed, based upon his discussions with his client, that defendant understood the facts, what was said and was happening, the nature of the proceedings and the consequences of the trial.
Corbin was aware that the file contained a psychiatric report by Jonathan Willard-Mack, M.D. and that defendant's behavior at the time he was arrested was described by a police officer as "very strange." When defendant was arrested, he made statements to the police in which he admitted being in the company of the victim at or near the time of his death. In one of the statements defendant said, "I killed him," which Corbin understood to mean that defendant caused the victim's death by putting him in a position where someone could kill him.
Corbin testified that he considered whether diminished capacity at the time of the homicide could be established and described the difficulties presented regarding that defense. Although defendant made several inconsistent statements, none of which made sense, they were made on the day of his arrest and would not establish diminished capacity on the day of the victim's death three months earlier unless there was a "continuing type of behavior." There was also the problem that the precise date of the victim's death was unknown, since the body was not discovered until some time thereafter.
Corbin also described a practical difficulty in asserting an insanity defense:
Well as I understand the insanity defense, what you have to do is basically admit that you did it or admit that you did an act and I was insane because of a mental ...