On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-04-0404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Appellant filed a pro se supplemental brief.
Defendant Malvern Lewis, who was tried before a jury in 2003 and found guilty of the murder of his former paramour's new boyfriend, aggravated assault upon the paramour and various weapons offenses, appeals from a May 19, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On defendant's direct appeal, we affirmed his conviction of murder, but we reversed his aggravated assault and related weapons convictions. State v. Lewis, 389 N.J. Super. 409 (App. Div.), certif. denied, 190 N.J. 393 (2007). We also noted at that time that defendant had asserted ineffective assistance of counsel claims, which were best left to post-conviction review. Id. at 415-16. Defendant filed a pro se petition for PCR and an application for public defender assistance. Counsel was assigned and a supplemental petition for PCR was submitted in April 2008. Subsequently, by letter dated October 1, 2008, defendant's PCR counsel also submitted a supplemental letter brief, and on January 31, 2009, a supplemental letter memorandum identifying additional issues raised on behalf of defendant. On May 19, 2009, the PCR court convened its hearing and rendered an oral opinion denying defendant's petition for PCR, memorialized in an order of the same date. The court found defendant's claims lacked sufficient specifics to require an evidentiary hearing. This appeal followed.
The essential facts leading to defendant's conviction may be briefly summarized. In April 2000, M.R., with whom defendant had been living and with whom he had conceived a daughter, obtained a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Among other things, the FRO barred defendant from contacting M.R. or her children (she had two older daughters from a previous relationship) and from returning to the family home in Trenton, except in the company of law enforcement officers to retrieve his belongings. Unbeknownst to defendant, M.R. had begun a romantic relationship with another man, Clarence Brown, and soon after Lewis moved out, Brown moved into the family's home.
In the early morning hours of May 7, 2000, defendant broke into the home where he encountered Brown. Defendant repeatedly stabbed and clubbed Brown to death. Instead of leaving, defendant remained in the home waiting for M.R., who returned a few hours later with her brother and her three daughters. As M.R. prepared to enter the front door, defendant slammed it open from the inside, brandishing a knife. M.R. attempted to run, but defendant grabbed her, stabbing her in the arm and cutting her shoulder before she was able to pull free. Defendant then fled, but he later approached two Ewing Township police officers, telling them he believed he was wanted for murder in Trenton. Upon receiving confirmation that defendant was, indeed, sought for murder, the officers handcuffed him and transported him to headquarters for processing.
At the trial, defendant vacillated about whether he would testify in his own behalf. During a pretrial conference, the court explained to defendant his right to testify or not to testify, noting that defense counsel had expressed his intention to tell the jurors in his opening statement that defendant planned to testify. The court elaborated on the ramifications of that course of action in the following extended colloquy:
THE COURT: [T]here's [sic] ramifications with that with respect to that decision [to testify]. You have to discuss it with your attorney before you make your decision. And I've heard your attorney represent to me that you're going to testify. Ordinarily, I don't go over this until later in the trial, and right now, I'm going over this with you, not seeking your decision in any way, but to acquaint you with the various things that you have to consider and the decisions that you have to make at some point. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay, so -- and the other thing is you may want to talk to your attorney about whether or not he should tell the jury you're going to testify in opening, because that's important. That's an important thing. He's represented to this Court that that is what he's going to say. And, you know, there's two sides to that, too. That's telling them right up front they're going to hear from you. Well, if they don't hear from you, they've heard from him you're going to testify and then you choose not to testify, . . . I don't know what they would do with that. I would tell them not to consider it, you know, and I would hope they would follow my instruction, but if [defense counsel] tells them in opening that they're going to hear from you, you know that's, that indicates to me, at least, that you and he have talked, and you thought about it, and you've made the decision to allow him to go forward in that way and to have, to tell the jury that. He's represented that to the Court. So you have some decisions you have to make, and you have to decide what's best for you under all the circumstances. . . .
So at some point, though, I'm going to turn to you, and I'm going to go over all this again with you. At that point, they will have heard his opening. They will have heard all the testimony, but they won't have heard from you because you're going to have to tell me that you want to waive your rights before they'll hear from you, or before they'll know from the Court that you're thinking about testifying. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: I'm not asking you for your decision [now].
Later the same day, after the court had ruled on other evidentiary issues, as defendant was leaving the courtroom, he suddenly yelled, out of the presence of the jury, "[y]ou'll be picking the jury without me, convict me without me. . . . I don't want to talk to anybody. I just want to go to jail."
The court immediately informed defendant that he had a right to be present during the trial, which was about to start.
He warned defendant that if he chose not to be present he would not be forced to attend, but that would not delay the trial. Defendant's counsel then commented that if defendant elected not to attend the trial, counsel would have to assume defendant was "suffering under some form of mental disease or defect. [He] would have to have him examined." Counsel added that there were times when he felt that defendant was not thinking clearly, and that he may need to have defendant evaluated.
The court acknowledged that counsel could have defendant tested, but it also admonished that "[t]here is no per se insanity for someone's failure to appear at trial[.]" The court reiterated that the trial would begin on schedule, adding that the court did not doubt defendant's competency to stand trial. The court stated:
THE COURT: In fact, I want to put this on the record. I said to [defense counsel] yesterday that [defendant] has not looked me in the eye but one time up to that point. But today he was very responsive. He was looking right at me when I was talking the entire time. There's -- today, he was listening to me, and when I addressed him this morning, I had the feeling that he was comprehending what I said about his right to testify or not, and the various ramifications. He clearly responded to my questions, and he did just now again. So he may be upset, he may be angry, but he showed me no signs of any inability to comprehend any kind of disqualifying mental state. He's not -- he's certainly not incommunicative in the sense that he can communicate. Whether you have a problem communicating with him or he doesn't want to communicate with you, that's his -- that's something. But he can communicate if he wants to[.]
No mental health evaluation was arranged, and defendant was present for the start of trial.
Following the State's opening statement, the court inquired whether defendant and his counsel had decided what counsel would tell the jury during the opening statement. Defense counsel indicated that he would say defendant planned to testify, whereupon defendant immediately informed the court he would not be testifying. After a recess, defense counsel stated to the court that he was not prepared to open because he had anticipated that defendant intended to testify. The court indicated that counsel could choose to ...