On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-09-1143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Fisher and Waugh.
In appealing the denial of his post-conviction relief (PCR) petition, defendant seeks a new trial based on, among other things, State v. A.O., 198 N.J. 69 (2009), which precludes admission of polygraph evidence when stipulated by the accused without the advice of counsel. Defendant was tried and convicted in 1998, and his direct appeal regarding the admission of polygraph evidence and other points was decided by this court in 2000 -- nine years before A.O. was decided. As a result, even if appropriate, pipeline retroactivity provides defendant no benefit. Additionally, we conclude that A.O. should not be applied to this case because the admission of polygraph evidence here did not strike at the heart of the truth-seeking function. We affirm the denial of relief on this ground but remand for other reasons.
Defendant was charged with the first-degree murder of Lashon Terrell in Elizabeth on June 5, 1996. Because witnesses told police they saw defendant with blood on his shirt the morning of the murder, defendant was brought in for questioning on June 6, 1996. Defendant waived his Miranda*fn1 rights and told police he saw someone else stab the victim, took the knife from the assailant, attempted to help the victim and then called 9-1-1, but left the scene before police arrived because he was afraid. Detectives asked defendant to stipulate to a polygraph examination that could be admitted in evidence at trial; defendant agreed and so stipulated without the advice of counsel.
The polygraph examiner found defendant was deceptive in denying he stabbed Terrell. In a second statement, defendant acknowledged that his first statement was not accurate. Defendant claimed he and Terrell were horsing around when the latter jokingly pulled a knife out of his shorts. When the knife tore defendant's shirt, however, he became angry, took the knife from Terrell and stabbed him. Defendant also asserted that he had snorted a large amount of cocaine the night before, was high and did not intend for Terrell to die.
Later that evening, after again waiving his Miranda rights, defendant gave a third statement in which he admitted his second statement was not completely true. This time, defendant stated that Terrell and his girlfriend were having relationship problems and Terrell had physically abused her. Defendant asserted that Terrell's girlfriend asked defendant to kill Terrell for $1000 and drugs, and defendant agreed. Defendant also asserted that he stayed up all night before the killing and snorted cocaine while he waited for the girlfriend's signal. While defendant waited, the girlfriend handcuffed Terrell as she pretended to sexually arouse him, and defendant secured a knife from the kitchen and stabbed the victim.
Prior to trial, defendant unsuccessfully moved for the suppression of these statements, claiming he was under the influence of narcotics and the statements were involuntary. After a trial in 1998, at which the statements and evidence of the failed polygraph examination were admitted, and at which defendant neither testified nor called witnesses on his own behalf, defendant was convicted of: first-degree murder, N.J.S.A. 2C:11-3(a)(1), -3(a)(2); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:11-3(a)(1) and -3(a)(2); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). On May 15, 1998, the trial judge sentenced defendant to prison for life subject to a thirty-year period of parole ineligibility.
Defendant filed a timely appeal in which he argued that:
(1) the trial judge "erred in admitting evidence of defendant's uncounseled stipulated polygraph results into evidence"; (2) the prosecutor's cross-examination and summation deprived him of a fair trial by linking "evidence of defendant's impecuniosity to the crime"; and (3) his sentence was excessive. We rejected these arguments and affirmed. State v. Peterson, No. A-6938-97 (App. Div. June 21, 2000). Defendant's petition for certification was denied on October 17, 2000. 165 N.J. 605.
Defendant filed a pro se PCR petition on November 22, 2000. That petition asserted no specific grounds for relief but was amended by a pro se filing dated March 15, 2002, in which defendant argued the ineffectiveness of his trial attorney based on: counsel's alleged failure to present evidence of a lesser-included offense, citing a long history of mental, psychiatric and substance abuse problems; counsel's alleged "poor performance" at the Miranda hearing, which should have included evidence that defendant was under the influence of "highly potent prescribed medications" at the time he was interrogated; and other unspecified instances of counsel's "woefully substandard assistance and performance." Defendant additionally asserted appellate counsel's ineffectiveness in not pursuing the alleged ineffectiveness of his trial attorney. On March 19, 2003, defendant filed an amended pro se PCR petition, which included arguments that: his trial attorney failed to object both to the admission of certain evidence and to certain portions of the prosecutor's summation; and that his appellate attorney was ineffective in failing to present the issues "both in terms of the State and Federal [C]onstitution[s]" and in failing to raise the specific instances of his trial attorney's ineffectiveness that were discussed in this amended PCR petition.
Defendant's PCR filings were later voluntarily dismissed so his appointed attorney could investigate and locate materials relevant to the arguments posed. On July 30, 2007, defendant refiled his pro se petitions, arguing some of the same points raised earlier, as well as a challenge to the admission of polygraph evidence. On July 31, 2009, defendant's appointed attorney filed a brief that argued, among other things: A.O. should be applied retroactively; and defendant's trial attorney was ineffective in failing to pursue a psychiatric defense. The PCR judge did ...