June 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1356.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall and Koblitz.
Defendant J.I. appeals from the August 29, 2011 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing as to one of the five issues he raised against his trial counsel. Defendant claims that he was deprived of the effective assistance of trial and appellate counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On August 6, 2005, defendant became enraged and assaulted his thirteen-year-old son with a piece of wood and a crowbar causing a skull fracture, as well as cranial bleeding. The child was helping his father set up an above-ground pool and install a fence in their backyard at the time. At trial, defendant claimed that he was unable to form the requisite intent for conviction because of a psychiatric condition. His wife, son, and a defense psychiatrist testified at trial in support of this defense. Defendant's wife testified that defendant had changed since the recent death of his brother. She mentioned that he was in jail in response to the State's questions about whether she was still married and "with" defendant. Defense counsel did not seek a curative instruction or mistrial after this brief comment. Defendant's wife stated that she had seen defendant become violent only once before, on Christmas Eve 2002, when he threw a vase at the wall. She stated that she was not hurt in the incident, but the State confronted her with information contained in a police report indicating that she had been injured when hit with the vase. The judge did not permit the State to admit this police report and stopped further questioning on this topic because he deemed it a discovery violation not to have provided the report to defense counsel, who was unaware of its existence. Defense counsel asked that the judge not give a curative charge to the jury as it would only draw more attention to the State's earlier questions.
The defense psychiatrist diagnosed defendant with generalized anxiety disorder and intermittent explosive disorder (IED). He relied in part on defendant's physical symptoms related to anxiety, including gastrointestinal and skin disorders. He said that due to his psychiatric condition, defendant had not intended to hurt his son and was unaware of the consequences of his actions. The State called a psychiatrist in rebuttal who testified that defendant did not suffer from mental illness.
A jury convicted J.I. of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The jury found defendant not guilty of first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1. He received an aggregate sentence of seven years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed the convictions and sentence on direct appeal. State v. J.I., No. A-5819-06 (App. Div. Apr. 15), certif. denied 200 N.J. 369 (2009).
Defendant filed a timely PCR petition, claiming that his trial counsel was ineffective in five respects and appellate counsel was ineffective in not ordering a transcript of jury selection. In a twenty-four page written opinion, Judge Michael L. Ravin denied relief on the basis of four of the claims made against trial counsel and the claim against appellate counsel. He ordered an evidentiary hearing only with regard to the first issue, that counsel failed to investigate the 2002 incident.
At the evidentiary hearing, defense counsel testified that she had spoken to defendant's wife multiple times and that she and defendant were consistent in their versions of the 2002 incident. The lawyer said she had been told that the police responded in 2002. The attorney indicated that the defense psychiatrist did rely on the 2002 incident as a basis of his diagnosis, but for the purposes of the psychiatric diagnosis it did not matter whether the vase hit defendant's wife.
In contrast, defendant's wife testified that counsel never discussed the 2002 incident with her. She also denied talking to the defense psychiatrist about the 2002 incident. The psychiatrist, however, considered that incident when diagnosing defendant with IED.
In a sixteen-page written opinion, Judge Ravin found the defense attorney's testimony credible and the wife's testimony incredible. He deemed it "reasonable professional judgment" for defense counsel not to seek a police report of the 2002 incident in light of the fact that defendant and his wife did not inform counsel that the report existed, as well as the State's obligation to provide complete discovery of all relevant material in its possession.
Defendant raises the following issues on appeal:
POINT I: J.I.'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE U.S. CONSTITUTION, AMENDMENTS VI AND XIV, AND THE N.J. CONSTITUTION (1947), ARTICLE I, PARAGRAPH 10.
A. FAILURE TO INVESTIGATE THE 2002 INCIDENT.
B. THE JURY LEARNED THAT J.I. WAS IN JAIL.
C. FAILURE TO CROSS-EXAMINE WITNESS.
D. FAILURE TO CALL A MEDICAL DOCTOR AS A WITNESS.
F. FAILURE TO SEEK PRE-TRIAL INTERVENTION (PTI).
POINT II: APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE U.S. CONSTITUTION, AMENDMENTS VI AND XIV, AND THE N.J. CONSTITUTION (1947), ARTICLE I, PARAGRAPH 10.
The legal principles that govern our analysis of a defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[, ]" Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id . at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S.Ct. 2039, 2043-46, 80 L.Ed.2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id . at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id . at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)). Claims of ineffective assistance of appellate counsel are judged by the same standards as similar claims made against trial counsel. State v. Gaither, 396 N.J.Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).
We affirm substantially for the reasons expressed in Judge Ravin's two written opinions of August 24, 2010 and August 29, 2011. Judge Ravin, who knew what occurred at trial because he presided over it, thoroughly discussed the facts and the pertinent law in both of these opinions.
We note that it would have been preferable for defense counsel to have investigated the 2002 incident and secured her own police report. Defense counsel should not depend on a client and his wife's version of events without further investigation, nor rely on the State to supply evidence relating to a defense.
However, defendant fails to demonstrate how defense counsel prejudiced the defense by neglecting to obtain the police report. As counsel testified, for purposes of the IED diagnosis, the significant proof was that a prior severe explosive incident occurred, not whether defendant hit his wife with the vase or not. Although any undermining of a defense witness' credibility is generally unhelpful to a defendant, we are unable to discern any prejudice to the defense that flowed from counsel's failure to obtain the police report prior to trial. No reasonable probability exists that this failure changed the outcome of the trial.
Defendant claims that appellate counsel should have ordered a transcript of the jury selection to determine whether the proposed defense jury "questions were properly used by the court . . . ." Defendant does not point out any particular appellate issue relating to these questions or any other aspect of jury selection, and jury selection transcripts are frequently not ordered by appellate counsel. Thus, this issue fails on both prongs of the standard for ineffective assistance of counsel claims.