January 8, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHERMAN ARTWELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2275.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2012
Before Judges Grall and Simonelli.
A jury found defendant Sherman Artwell not guilty of purposely or knowingly killing Ronald Jackson, N.J.S.A. 2C:11-3(a)(1) to (2), or of conspiring with Zoranda Paulson and Jonathan Martin to murder him. N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) to (2). But the jurors determined that he was guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a; felony murder in the course of arson, N.J.S.A. 2C:11-3(a)(3); aggravated arson, N.J.S.A. 2C:17-1a(1) to (2); conspiring with Paulson and Martin to commit aggravated arson, N.J.S.A. 2C:17-1a(1) to (2) and N.J.S.A. 2C:5-2; conspiring with them to commit hindering apprehension, N.J.S.A. 2C:29-3b(1) and N.J.S.A. 2C:5-2; and two counts of hindering apprehension, N.J.S.A. 2C:29-3b(1). His convictions and his consecutive sentences for felony murder and hindering apprehension were affirmed. State v. Artwell, No. A-5373-06 (App. Div. Mar. 31), certif. denied, 199 N.J. 518 (2009).
Defendant appeals from the denial of his petition for post-conviction relief, contending that the judge erred in concluding that his trial counsel provided reasonably competent representation. Because the judge's determination is supported by the record and consistent with controlling law, we affirm.
Ronald Jackson's body was found lying face up on the floor between the back and front seats of his car. The car was parked in a vacant lot between two abandoned cars. Jackson's car had been set afire, and the front of his body was burnt beyond recognition. He was identified because his hands had been bound with duct tape behind his back and were sufficiently intact to permit fingerprinting.
At the time of Jackson's death, he was involved in a relationship with Paulson. Although Jackson was supporting Paulson and her children, Paulson also maintained her relationship with defendant, who is the father of one of her children. A week or so before Jackson's death, Paulson told defendant and Martin, her cousin, that Jackson had raped and beaten her.
The three of them decided that Jackson should be "choked out" and set on fire. To secure Martin's assistance, Paulson told Martin he could live in her house if he helped.
Jackson visited Paulson's house on August 11, 2002. Defendant and Martin were there, but Martin left. After Martin left, Jackson jumped defendant from behind and swung at him, but defendant ducked and avoided that blow.*fn1 Jackson, who was holding a pen, then raised his arms as if he were going to stab defendant, and defendant put him in a chokehold. Defendant acknowledged that he did not release his hold until Jackson stopped moving. At that point, Jackson was "knocked out" but "snoring."
Defendant and Paulson proceeded to bind Jackson's hands and feet with duct tape and place duct tape over his mouth and nose. Because defendant was scratched during the struggle, they also cleaned Jackson's fingernails to remove any evidence that might link him to defendant. Planning to remove Jackson the following day, they put him in the basement. According to both defendant and Paulson, Jackson was still breathing when they left him alone in the basement.
With Jackson secured, Paulson and defendant went about their business. Paulson drove defendant home. En route, defendant became worried about the children they had left behind and Jackson freeing himself from the duct tape. After Paulson dropped defendant off, he called his son.
Paulson arrived home while defendant was talking to his son. She ate dinner with the children and when they were in bed checked on Jackson. Because Jackson was still breathing, she put more duct tape on his face from his nose to his eyebrows. She later explained that she did that because she wanted Jackson dead.
Defendant called Paulson, and she told him that Jackson was still breathing. Defendant told her that she and Martin had to get Jackson out of there. Later, she called defendant and told him Jackson had stopped breathing. Defendant directed her to put Jackson in the car and burn him because it was warm and his body would smell. Defendant then called Martin and asked him to help Paulson.
Martin complied. They wrapped Jackson in a sheet and moved him from the basement to the front door. Martin also thought Jackson was dead because his body was cold and stiff. Martin and Paulson left Jackson inside and near the front door while they went to get lighter fluid and enough gas to start a fire. They then put Jackson on the floor of Jackson's car between the front and back seats and drove to an abandoned lot where they set the car afire and fled. Upon returning to Paulson's house, they called defendant.
Dr. Ian Hood, a forensic pathologist who testified for the State, concluded that Jackson was alive at the time of the fire and that the primary cause of death was inhalation of smoke and soot and thermal burns. His opinion was based on the presence of erythematous mucosa in the victim's lungs, which could only have been caused by smoke inhalation, and soot found on the victim's tongue and in his nostrils, which was consistent with the victim gasping for air - taking at least two or three breaths while very hot air was around his face. Acknowledging that contraction of a dead person's muscles during the fire could account for the soot in Jackson's nose and mouth and noting that only "a few little particles of soot" were found in Jackson's lungs, Dr. Hood explained why he concluded that Jackson was breathing during the fire. The tissue in Jackson's trachea and lungs showed a reaction of living tissue to noxious hot air - swelling and "very red hemorrhagic." He noted that Jackson's low carbon monoxide level was quite common among persons who die in a car that has burst into flames, explaining that the air from such a fire is so hot that it cooks the lungs and precludes exchange of air and that sudden intense fires produce little carbon monoxide.
II The primary focus of defendant's petition for post-conviction relief was his trial counsel's failure to present expert testimony that he contends undermined Dr. Hood's conclusion that Jackson was alive when his car was set afire. He supported that claim with a report prepared by Dr. John E. Adams, M.D., P.A., prior to trial.
At the request of counsel designated to represent defendant by the public defender, Dr. Adams reviewed Dr. Hood's records. Shortly before trial, defendant's family retained private counsel and his trial attorney did not call Dr. Adams as a witness. In support of his petition, defendant submitted Dr. Adams' report and a certification from his designated counsel, indicating that he had given trial counsel his complete file, including Dr. Adams' report.
Judge Natal, who presided over defendant's trial, conducted a hearing on the petition. The judge permitted defendant to testify. Although defendant testified that his trial attorney told him she had not received the report from designated counsel, defendant acknowledged that he had mentioned the report during his discussions of trial strategy with that attorney.
While defendant's testimony is less than clear on that point, the judge, who had an opportunity to hear and see defendant, found that defendant had discussed Dr. Adams with trial counsel.
Dr. Adams' report was based on his review of the autopsy report and photographs, the toxicology report and the police and fire marshal reports. The doctor made the following observations about the medical evidence:
At autopsy, conforming to statements of the defendants, duct tape and packing tape were found around Mr. Jackson's wrists, largely intact because his hands were bound behind his back and protected from the fire. Discoloration of the airway was interpreted as "thermal burns and smoke and soot inhalation." However, no soot was seen in the airway and the carbon monoxide level in the blood was less than 1%. Apparently no microscopic examination was performed to look for soot and to distinguish between antemortem burns and post-mortem heat effect. No tape was identified on the face or ankles but the soft tissue of the face and ankles was largely destroyed by fire. A depressed skull fracture was found in the right parietal area, with underlying hemorrhage that was characterized in the report as both epidural and subarachnoid. A photograph of the inner surface of the skull shows epidural hemorrhage with heat effect, a typical finding with a fire fracture of the skull and uncommon for an antemortem fracture. The head was at high risk for fire fracture because of the intense heat to which it was subjected. Other characteristics which help to distinguish a fire fracture from an antemortem fracture were not provided in the report, and the photographs of the head are not sufficiently detailed to be helpful in this regard.
Dr. Adams drew the following conclusions from that evidence:
The autopsy findings do not convincingly contradict the statements of the defendants and it has not been proved that Mr. Jackson was alive when the fire started. The theory that a skull fracture occurred when the car door was slammed on Mr. Jackson's head is assailable because of the strong possibility of fire fracture, because of the epidural hemorrhage associated with the fracture and because the car door was hollow and padded and is not likely to cause such an injury in most instances. The absence of carbon monoxide in the blood and soot in the airway excludes "soot and smoke inhalation" as a cause of death and strongly suggests that death occurred before the fire was started, as stated by the participants.
In order to establish a right to relief based on trial counsel's failure to present Dr. Adams' report, defendant had to demonstrate that a reasonably competent attorney would have presented the report and that he was prejudiced by his attorney's failure to do so. State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). He was not entitled to an evidentiary hearing on the merits of his claim unless he made a prima facie showing of deficient performance and prejudice. See State v. Preciose, 129 N.J. 451, 462-64 (1992) (discussing the circumstances under which an evidentiary hearing is required).
To establish performance that was less than reasonably competent, defendant had to show that counsel's error was "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. And, to establish prejudice he had to demonstrate "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; accord State v. Fritz, 105 N.J. 42, 52 (1987).
After considering the evidential materials submitted on the petition, oral argument and the testimony the judge permitted defendant to give at the PCR hearing, the judge denied relief. He concluded that defendant had not shown that trial counsel's failure to present Dr. Adams' testimony was less than reasonably competent within the meaning of Strickland.
The judge noted that defendant was on trial for murder as well as felony murder. He reasoned that Jackson's death prior to the fire "would have increased the risk that [defendant] would have been convicted of the murder since he [was] the one who inflicted the greatest injury up to the time of the fire." The judge explained the increased risk by observing that defendant acknowledged placing Jackson in a chokehold until he lost consciousness, admitted to putting duct tape over Jackson's mouth and possibly his nose while he was still breathing and to moving the immobilized Jackson to Paulson's basement, where he was left unattended. On that reasoning, he concluded that there would be "no discernible advantage for the defense to argue that the [victim] was already dead before the car was set on fire."
In determining that trial counsel's decision to refrain from calling Dr. Adams was reasonably competent, Judge Natal further noted that the proposed testimony had limited value because Dr. Hood's testimony negated the points raised in Dr. Adams' report. That determination is well supported by the record. Dr. Adams' report, which is quoted above, is less than definitive. As to the cause and timing of Jackson's death, Dr. Adams' ultimate conclusion was that the "absence of carbon monoxide in the blood and soot in the airway excludes 'soot and smoke inhalation' as the cause of death and strongly suggests that death occurred before the fire was started, as stated by the participants." As noted above, Dr. Hood's testimony took account of Jackson's low carbon monoxide level and the absence of significant soot in his airways.
In considering counsel's performance, courts must give "extreme deference" and afford "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Given that deferential standard, we cannot conclude that the judge erred in determining that defendant failed to establish deficient performance.
There is no question that defense counsel had a trial strategy for dealing with the medical evidence. In cross-examining Dr. Hood, the attorney elicited responses indicating her familiarity with the medical evidence. Her cross-examination of Dr. Hood highlighted the evidence tending to show that Jackson was alive when the fire was lit. It is wholly consistent with and fully supports the judge's finding that trial counsel's strategy was to distance her client from the cause of death by focusing on the fact that the fire set by Paulson and Martin, not defendant's conduct, caused Jackson to die.
There was no clear cut path for a successful defense in this case. That is so because defendant was charged with two forms of murder: 1) purposefully or knowingly causing Jackson's death by his prior conduct; and 2) complicity in the arson, executed wholly by Paulson and Martin, that caused death. A strategy to accept Dr. Hood's opinion that Jackson died in a fire set by Paulson and Martin distanced defendant's conduct from the cause of death. To find defendant guilty of felony murder, the jurors had to find not only that Jackson died in the fire, but also that defendant was accountable for the conduct of those who set the fire, under the principles set forth in N.J.S.A. 2C:2-6.
This is a case in which deference to trial counsel's apparent strategy was appropriate. Judge Natal properly concluded that the presumption of trial counsel's reasonable competence was not called into question by her failure to produce Dr. Adams' report. For that reason, we affirm the denial of defendant's petition and the determination that there was no basis for expanding the evidentiary hearing beyond defendant's testimony.
For the sake of completeness, we address the issues as framed by defendant's appellate counsel in the opening brief and by defendant in a pro se reply brief. Arguing that Dr. Adams' report would have supported submission of passion/provocation manslaughter to the jury, appellate counsel contends:
THIS MATTER MUST BE REMANDED FOR A PLENARY EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS BY FAILING TO INVESTIGATE ADEQUATELY AND/OR TO PROVIDE AN EXCULPATORY WITNESS REGARDING THE MURDER CHARGES. (Partially Raised Below).
On direct appeal defendant contended that the trial judge erred in failing to instruct the jury on passion/provocation manslaughter. Artwell, supra, slip op. at 9. We determined that defendant had too much time to "'cool off' between the struggle with Jackson and the time that [defendant] believed Jackson to have died." Id. at 14 (emphasis added). We explained that defendant's failure "to desist from the conduct that resulted in Jackson's death" despite his sufficient opportunity for cooling-off "preclude[d] a finding of passion/provocation manslaughter." Ibid.
Evidence that Jackson was dead when the fire was set would not have altered the analysis because defendant was told that Jackson was dead before the fire was started. Accordingly, defendant cannot establish a reasonable probability that passion/provocation manslaughter would have been submitted to the jury if his attorney had presented Dr. Adams' report.
In his pro se reply brief, defendant argues that counsel's failure to present Dr. Adams' report was ineffective because it could have cast doubt on Dr. Hood's testimony essential to his conviction for felony murder. He submits:
TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND/OR TO SECURE THE TESTIMONY OF EXPERT WITNESS DR. ADAMS, DEPRIVED DEFENDANT OF A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL AND MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION WARRANTING VACATION OF HIS CONVICTION AND SENTENCE.
This argument lacks sufficient merit to warrant additional discussion. R. 2:11-3(e)(2). As noted in Part II of this decision, defendant was required to establish deficient performance of counsel, which he failed to do.