January 22, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE M. HLADUN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-04-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012 -
Before Judges Messano and Kennedy.
Defendant George M. Hladun appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted by a jury of the first-degree strict liability drug-induced death of Gary L. Debele, N.J.S.A. 2C:35-9, and third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3). So as to place some of the issues raised by the PCR petition in proper context, we cite extensively from our prior opinion regarding the evidence adduced at trial.
During the early morning hours of May 31, 2003, . . . Debele died of a heroin overdose while asleep on the couch in his home. Debele had attempted to overcome his addiction to the drug during the preceding years . . . .
Debele was discovered in a lifeless condition at approximately 5:30 a.m. by his step-daughter, Cheryl Machyousky, who lived with Debele, [Debele's wife] Cynthia, and her half-brother, Gary Debele, Jr. . . . Emergency medical personnel were unable to revive Debele, and he was pronounced dead at the scene.
The preceding evening, near 9:00 p.m., Debele asked Machyousky to drive him to K-Mart to purchase supplies for the garden they were planting. While Machyousky was driving to K-Mart, Debele asked her to stop at defendant's house, claiming that defendant owed him money. After defendant came to the front door, Debele went around the side of the house with him, and, after a few minutes, both returned to the car. Defendant continued a conversation with Debele about borrowing a roto-tiller from him. As they left defendant's home, Debele told Machyousky that he did not need to go to K-Mart that evening, and so they drove home.
Machyousky knew the symptoms of heroin intoxication having lived for several years with a man that was addicted to the drug. Although Debele exhibited no such signs when he left for K-Mart, he did on the ride home from defendant's house. When Machyousky reached home, Debele went into the bathroom where Machyousky assumed he was ingesting more drugs. Police who responded to the home the next morning found a cut straw with white-powder residue on it in the bathroom garbage can. The residue was heroin.
Machyousky agreed to assist the police investigation into Debele's death by consenting to secretly record telephone conversations with defendant. She attempted to have defendant speak about the night before Debele's death, and whether defendant gave him the heroin that led to his death. A taped conversation she had with defendant on June 18, 2003[,] was played for the jury. We recite some of the exchange:
Machyousky: But um, I mean, did you recognize the stamp that was on the  [bags of heroin]? You know how they stamp the bags? Defendant: No.
Machyousky: It was a different kind? 'Cause you should be very careful.
I mean, you know how . . . they stamp it, and they give it a name? Defendant: Yeah.
Machyousky: He (meaning Debele) said that he didn't recognize the name on th[e] [bag] . . . that night.
Machyousky: And he was even worried about it himself. So it, it was different to you? You didn't recognize it either? Defendant: I didn't, I didn't take notice.
Machyousky: How many did he even get?
Defendant: Um, two?
Machyousky: He got two from you that night? And, you know, he seemed to be doing okay, George . . . . [W]ere you guys talking regularly or? I mean, I know back [in] the days before he went to rehab and when you guys were going to Newark and scoring dope and whatever, and you had some trouble with the law, and I thought, you know, you guys were doing so good, and, and he just relapsed.
Defendant: Yeah, I know.
Machyousky: Yeah . . . . [W]as he supposed to get a couple more from y[ou]?
Defendant: No. No. No.
Machyousky: Just what he got from you the night before.
Defendant called Machyousky the next day and asked if she found any bags of heroin with stamps on them. She took notes of the conversation and gave them to the police.
Without objection, Cynthia Debele testified that her husband told her that defendant was supplying him with heroin. She testified about her husband's attempts to deal with his addiction. Cynthia claimed her husband was a homebody until defendant began to call their home "quite often," resulting in Debele frequently going out with him. After Debele lost his driver's license in early 2003, his son Gary Jr. would drive him around. He took his father to defendant's house about three or four times, and on those occasions, his father would go in for five or ten minutes and come back to the car. When they returned home, his father would just go to his bedroom, and, on occasion, Gary Jr. saw him exhibit "some weird behavior." Without objection, he was asked if he ever took his father "anywhere else that he obtained heroin?" He replied, "Not to my knowledge, no." Again without objection he was asked, "And do you know of anyone else other than . . . defendant from who your dad would have gotten heroin?" He again replied, "No, not to my knowledge."
Detective Clifford Scott Lessig of the Raritan Township Police Department responded to the Debele home on the morning of the death. He subsequently conducted an investigation that included securing the telephone records of Debele and defendant. Those records revealed a call from defendant's home to Debele shortly before 9:00 p.m. on the night before his death. The records further revealed a number of calls from the Debele residence to defendant's residence during the preceding months, including one that occurred earlier on the evening of May 30.
Lessig arrested defendant on September 4, 2003. After defendant waived his Miranda rights and agreed to speak to him, the detective played a portion of the taped phone conversation between defendant and Machyousky. Defendant told Lessig the [sic]
"he would occasionally accompany Debele to purchase heroin in Newark or Irvington . . . . [H]e stated that he wouldn't purchase or use any heroin, but he would accompany Debele to keep him out of trouble." Lessig played the tape again, specifically that part of the conversation "where [defendant] . . . indicat[ed] he gave [Debele] two bags [of heroin]." At that point, defendant told Lessig "that Gary Debele tried to sell him two bags of heroin." After Lessig told defendant that his version "didn't make sense[,]" the conversation ended.
We digress briefly to recount what happened immediately before the State rested. The State produced the medical examiner, Dr. Steven M. Diamond, as an expert witness. After the State rested, defendant produced his medical expert, Dr. Karl D. Schwarz. Unfortunately, the audiotape of the proceedings was lost or destroyed, and no transcript could be prepared. As a result, we ordered a temporary remand to the trial judge to reconstruct the record. See R. 2:5-3(f).
On December 20, 2007, a hearing was held with only the judge and the trial attorneys present. All three executed a written "Statement of Proceedings in Lieu of Transcript Pursuant to R. 2:5-3(f)." That statement memorialized that: 1) each expert had testified consistently with their reports, which were attached; 2) "[p]ursuant to the Court's ruling on the State's objection, Dr. Schwartz's [sic] testimony was limited to the general confines of his report"; and 3) "[o]n cross-examination, Dr. Schwartz [sic] acknowledged that he did not avail himself of the pretrial offer of Dr. Diamond to make tissue samples available to him for his examination." As reflected in their reports, Diamond opined that Debele died of a drug overdose, the toxicological findings indicating that Debele had ingested heroin. Schwarz opined that Debele died of natural causes, specifically, cardiomyopathy.
Defendant again moved to reconstruct the record and demanded to be present at the hearing. We again remanded the matter for a second hearing, which was held on March 12, 2009. The judge permitted defendant to testify regarding his recollection of the trial events .
Defendant produced several witnesses at trial in addition to Schwarz. Adrienne Hawkinson, his long-term, live-in girlfriend and mother of his two children, testified that she met Debele for the first time when he and defendant gave her a ride to Newark so they could all purchase drugs. The week immediately prior to Debele's death, Hawkinson claimed that he came to their house in the early morning hours and knocked on the window of their basement apartment. That same week, she claimed Debele tried to sell defendant two bags of heroin in her presence.
Hawkinson and defendant lived with his mother, Carol Hladun. She corroborated that someone she believed to be Debele was outside her home knocking on the basement window at 4:00 a.m. on Wednesday, May 28. Defendant's co-worker, Brian Bosland, testified that he and defendant went to Debele's house to pick up a roto-tiller a couple of years prior to Debele's death. Bruce Bushman, a friend of defendant's, testified that he witnessed Debele buying drugs on Halsey Street in Newark during the last week of May 2003.
Defendant did not testify in his own behalf. After summations and charge, the jury returned guilty verdicts on both counts of the indictment. [State v. Hladun, No. A-4491-06 (App. Div. Mar. 17, 2010) (slip op. at 4-12).]
Defendant was sentenced on January 24, 2007, to a fifteen-year term of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence on appeal, specifically preserving for PCR his claim that trial counsel provided ineffective assistance. Id. at 26. The Supreme Court denied defendant's petition for certification. State v. Hladun, 202 N.J. 347 (2010).
On December 8, 2010, defendant filed a pro se PCR petition alleging ineffective assistance of counsel. Appointed counsel filed a brief in support of the petition, specifically alleging trial counsel failed: to properly cross-examine Machyousky; to raise objections because he was pre-occupied with the medical condition of his mother; to properly prepare and present the testimony of Schwarz; to file a motion to suppress the taped conversation between defendant and Machyousky; to move to dismiss the indictment; to question the medical examiner on certain issues; and to call Joseph Tinley as a defense witness.
PCR counsel also contended that trial counsel provided ineffective assistance by failing to move for judgment notwithstanding the verdict (JNOV) based on State v. Morrison, 188 N.J. 2 (2006). As to appellate counsel, the claim was he failed to argue that Morrison, supra, applied retroactively and compelled defendant's acquittal.
Attached to the brief were post-trial letters from Schwarz to defendant, and a statement taken from Tinley by the local police department. We discussed the contents of Schwarz's letters in our earlier opinion. Hladun, supra, slip op. at 27 n.5, 29. Tinley was an acknowledged "recovering substance abuser," who knew that Debele suffered from chronic drug addiction who tried to keep the problem from his wife. Tinley claimed that he saw defendant once before when Debele pointed him out. According to Tinley, defendant was "messed up," and "looked like he was on heroin." Debele told Tinley that he and defendant would buy drugs together. Tinley also related a conversation he had with Debele on the night he obtained the fatal dose of heroin from defendant. According to Tinley, he refused Debele's request to drive him to defendant's home, suspecting that Debele was going to obtain drugs.
Defendant additionally produced a certification from trial counsel, David Hamilton.*fn1 Hamilton stated that his mother became ill two days before the trial commenced, and he was "distracted during the trial." He further stated that "[l]ooking back now, I probably should not have started the trial or at least the court should have postponed the trial." Hamilton's request for an adjournment was denied. Hamilton also stated that he "was not in top shape and . . . may not have been able to properly cross-examine witnesses, which may have been detrimental to [defendant]." Hamilton claimed that "[a]lthough [he] felt better when the trial began," his blood pressure remained elevated throughout and could not be properly controlled until his medication regimen was altered after trial.
Regarding cross-examination of Machyousky, Hamilton noted that he chose not to inquire about her criminal record because she had broken down in tears during direct examination, and he decided to avoid "risk[ing] the wrath of the jury for roughing her up." Hamilton believed he would "do the same again."
Hamilton noted that Morrison, supra, was decided after the trial, and he "thought that there would be no point in trying to ask for a new trial because defendant continued to be adamant about his innocence and . . . that he engaged in no sharing of drugs with [Debele]." Hamilton spoke to appellate counsel about raising the issue on appeal, but presumed it was not raised because "defendant believe[d] he ha[d] a better chance attempting to show his trial attorney was ineffective instead."
Hamilton also claimed that defendant was imprisoned "for a crime he did not commit." Based upon the pre-trial discovery and the trial testimony, Hamilton concluded defendant and Debele "were drug addicts and shared their resources to obtain drugs for their personal habits." Hamilton's certification did not mention Schwarz's testimony or letters.
PCR counsel also produced a certification from Schwarz that detailed his involvement in the defense.*fn2 Schwarz claimed that he provided Hamilton with a list of questions to pose during the cross-examination of the medical examiner, but Hamilton "did not raise most of the issues suggested . . . ." Schwarz told Hamilton to preserve specimens of Debele's heart and brain after autopsy; apparently, Hamilton brought the lack of microscopic examination of Debele's heart to the prosecutor's attention, permitting the medical examiner to conduct the examination and supplement his report. Schwarz criticized Hamilton for providing the prosecutor in advance with a list of medical authorities Schwarz intended to rely upon during his testimony.
Schwarz also criticized the credentials of the medical examiner. Schwarz reiterated his opinion that death from nasal ingestion of heroin, as the State alleged, was rare; he criticized Hamilton for directing him to include the various studies supporting his position in his report, which was turned over to the prosecutor.
After considering oral argument on the petition, the PCR judge, Stephen B. Rubin, who was not the trial judge, issued a comprehensive written decision addressing each of the points raised by defendant. The judge cited the relevant case law governing review of a claim of ineffective assistance of counsel, which we briefly state at this point.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. We apply the same standard to claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)).
Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
Accord State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations omitted). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
Most importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008) (emphasis added); see also R. 3:22-10(e)(3) (providing that the "court shall not grant an evidentiary hearing . . . for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success as required by R. 3:22-10(b)"). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Regarding cross-examination of Machyousky, Judge Rubin noted that her prior criminal convictions were introduced on direct examination before the jury, and Hamilton extensively cross-examined Machyousky about other aspects of her testimony.
Although acknowledging Hamilton's statements regarding preoccupation with his mother's health, Judge Rubin carefully considered the specific claims that trial counsel failed to object to the testimony other witnesses. The judge concluded that defendant established the first prong of the Strickland/Fritz test, noting that some of the testimony "constituted hearsay and there was no reasonable basis for allowing such testimony without objection." However, Judge Rubin concluded that defendant failed to satisfy the second prong of the Strickland/Fritz test.*fn3
Judge Rubin then addressed the three points raised in the petition regarding trial counsel's inadequate handling of Schwarz's testimony. The judge noted that the State was entitled to Schwarz's report in discovery, and it included the expert's analysis of the State's allegedly deficient proofs. Judge Rubin noted that tissue samples from Debele's heart were available for Schwarz to examine, and there was nothing to indicate that the outcome of the trial would have been different if trial counsel had directed Schwarz to conduct the examination.*fn4 Lastly, Judge Rubin concluded that defendant failed to meet the second prong of Strickland/Fritz as to trial counsel's ineffective cross-examination of the medical examiner regarding the failure to examine Debele's brain tissue. He noted that Hamilton's certification did not address the issue, and there was no evidence that such an examination would have likely revealed exculpatory information.
Judge Rubin concluded that there was no merit to the claim that Hamilton provided ineffective assistance because he failed to challenge the consensual intercept. Defendant failed to show such a challenge would have been successful. The judge similarly concluded any motion to dismiss the indictment would also have been unsuccessful. Additionally, Judge Rubin found that not calling Tinley as a witness was legitimate trial strategy because the statement provided included information damaging to the defense, i.e., that Debele obtained heroin from defendant.
Judge Rubin then considered whether either trial counsel or appellate counsel provided ineffective assistance because they failed to raise Morrison, supra. We digress briefly to synopsize the holding of the Court in that case.
As in this case, the defendant in Morrison was charged with distribution of heroin and the strict liability crime of causing a drug-induced death. Morrison, supra, 188 N.J. at 13. "Both crimes require proof of an act of drug distribution." Ibid. In Morrison, the "key issue" was "whether [the] defendant distributed the heroin to [the victim] or whether both jointly possessed the heroin . . . ." Id. at 14. In affirming the trial court's dismissal of the indictment, the Court held that "because [the] defendant and [the victim] simultaneously and jointly acquired possession of the drugs for their own use, intending only to share it together, [the] defendant cannot be charged with the crime of distribution . . . ." Id. at 20.
Noting that Morrison was decided after defendant's trial but before his sentencing and appeal, Judge Rubin concluded defendant's case was "factually and "clearly distinguishable from" Morrison. The judge noted that the jury was presented with proof that Debele had other sources of supply for his heroin, but rejected the claim that a "third-party" supplied the deadly dose. Judge Rubin also noted that Hamilton was not ineffective for failing to raise the claim that defendant and Debele shared possession of the deadly heroin, because defendant "continued to deny sharing heroin with the decedent on the night prior to his death," and any motion would have been "without merit." The judge did not address the claim that appellate counsel was ineffective for not raising the issue on appeal.
Judge Rubin entered an order on August 8, 2011, denying defendant's PCR petition. This appeal followed.
Before us, defendant reiterates his claims of ineffective assistance of counsel, alternatively arguing that he presented a prima facie case warranting an evidentiary hearing. In particular, defendant claims Hamilton failed to properly investigate Machyousky's criminal record and Tinley's statement. He further alleges that Hamilton failed to sufficiently challenge the medical examiner's testimony or present Schwarz's testimony in the most advantageous light. Defendant also claims that Hamilton failed to properly cross-examine Machyousky and Cynthia Debele, to object to inadmissible evidence and to move to dismiss the indictment. Defendant also reiterates his claims of ineffective assistance of trial and appellate counsel on the issues surrounding Morrison.
We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Rubin in his written opinion. We add only the following.
Machyousky's criminal record was revealed to the jury on direct examination. Hamilton's decision not to cross-examine her about that was a strategic decision both reasonable and frequently-employed at criminal trials. As noted, the failure to object to some of Machyousky's and Cynthia Debele's testimony was evidence of deficient performance, but the evidence was harmless, given the overwhelming proof adduced at trial. The jury had the benefit of Schwarz's opinions regarding Debele's cause of death, and his strongly-held assertion that Debele died of a heart condition, not from heroin ingestion. The simple fact is that the jury rejected the defense, and the claims that Hamilton's performance was deficient ring hollow. Any claim that the indictment was defective and could have been dismissed is unsupported by the record. We also agree with Judge Rubin that Morrison is factually and legally distinguishable from this case, and raising it in a JNOV motion, or on appeal, would not have been successful.
Lastly, although Hamilton's certification included a frank assessment of his mental and physical condition during the trial, Judge Rubin clearly gave defendant the benefit of all the statements contained therein. We see little to be gained by defendant from having Hamilton be subjected to cross-examination by the prosecutor at an evidentiary hearing. Defendant had the opportunity to supply his own certification if there were additional facts outside the record that supported a prima facie case of ineffective assistance. He chose not to do so.