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State of New Jersey v. David Mosley

December 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID MOSLEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-06-0611.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 26, 2011

Before Judges Parrillo and Alvarez.

After defendant David Mosley's 2001 trial by jury, he was convicted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and sentenced to five years imprisonment. He was also convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and sentenced to a concurrent seven years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The terms of imprisonment were to commence upon defendant's completion of an unrelated sentence he was then serving. We affirmed defendant's convictions and sentence in an unreported opinion. State v. Mosley, No. A-1306-01 (App. Div. Feb. 7, 2003). The Supreme Court denied defendant's petition for certification. State v. Mosley, 176 N.J. 430 (2003).

Defendant's first petition for post-conviction relief (PCR) was denied. He subsequently appealed, and we remanded the matter for the trial court's consideration of defendant's claim that his attorney was ineffective because he failed to seek suppression of his Mirandized*fn1 statements. The Law Division considered those claims on remand, and PCR was again denied on November 19, 2009. This appeal followed, and we affirm essentially for the reasons stated by Judge Ferencz.

The charges resulted from defendant's assault upon a fellow inmate at East Jersey State Prison. During the attack, which was witnessed by other prisoners as well as prison guards, defendant threw a pot of boiling oil on the victim, inflicting severe injuries, and then stabbed him in the back with a shank. Prior to being formally interviewed, defendant made spontaneous admissions. One of the responding officers testified, for example, that defendant said the victim "had this coming for a long time." Defendant also made a full statement regarding the incident after waiving his Miranda rights.

Defendant contends that his attorney was ineffective because he failed to file a motion to suppress his statement. In 2004, three years after the trial, defendant was examined by a psychiatrist, Dr. Kenneth J. Weiss, who opined that at the time of the assault back in 1999:

[Defendant's] relatively poor intellect coupled with . . . his stressed emotional state caused him to express things to the police that were against his interest. This is not a function of coercion; rather, a combination of low intellect and residual anger toward the victim. . . .

[E]xploration of these factors prior to trial could have been productive in an attempt to suppress the statement as evidence.

Defendant further contends that his mental state was a potential basis for suppression, had his trial counsel adequately investigated it prior to trial.

Having considered Dr. Weiss's report, the PCR judge determined on remand that defendant's impairments and emotional internal pressures, as described by Dr. Weiss, did not cause him to misunderstand his right to remain silent. As the judge observed, defendant's mistaken belief that if he explained his conduct, he would be "exonerate[d]," was not a basis for suppression. In other words, Miranda does not require suppression merely because a defendant's internal thought processes may cause him to miscalculate the outcome of a full confession.

A defendant must meet a two-pronged test in order to establish ineffective assistance of counsel. He must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must also establish that counsel's deficiency prejudiced him by demonstrating 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; see State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). It is the defendant's burden to prove, by a preponderance of the evidence, that counsel's decisions about trial ...


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