Opinion
DOCKET NO. A-3464-11T4
03-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIA REITER, Defendant-Appellant.
Richard J. Simon argued the cause for appellant (Richard J. Simon, LLC, attorneys; Mr. Simon, of counsel and on the briefs; Jeffrey Zajac, on the briefs). Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 46-2011.
Richard J. Simon argued the cause for appellant (Richard J. Simon, LLC, attorneys; Mr. Simon, of counsel and on the briefs; Jeffrey Zajac, on the briefs).
Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). PER CURIAM
Defendant Maria Reiter appeals from the denial of her post-conviction relief (PCR) petition without a hearing. She claims that counsel in her municipal court trial was ineffective on several grounds, and that a PCR hearing was required. We reverse and remand for an evidentiary hearing solely to determine whether trial counsel was ineffective in failing to consult properly with defendant about whether she should testify on her own behalf.
I.
The trial testimony showed as follows. At 7:24 p.m. on June 11, 2003, Officer Sean Taulane of the East Brunswick Township Police Department was dispatched to a Fleet Bank, where he found defendant's vehicle up on the curb. Its front left tire was off the rim and flat from hitting the curb, and its driver's side mirror was striking an ATM. Defendant was slumped in the driver's seat, with the key in the ignition. She was very lethargic and initially unresponsive. Her eyes were watery, her face was flushed, and she was periodically crying. Her speech was slurred. The officer, trained in detecting drunk drivers, believed she was extremely impaired. He asked her to step out of the vehicle, but she could not do so without his assistance. He asked her to perform standardized field sobriety tests (SFSTs), but she could not because she was having difficulty standing even on two feet.
Officer Taulane asked if defendant was on medication. She said she was, but denied any injury or illness. The officer arrested her for driving while intoxicated (DWI) and took her to headquarters. There, he gave her Miranda warnings, and conducted Breathalyzer tests which detected no alcohol. He questioned defendant, who said she was not sick, but had injured her right leg and foot. Defendant said she was taking Xanax, Fiorinal, and Ambien, and had taken 10mg of Xanax at 2 p.m. The officer believed she was under the influence of medication.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Taulane turned the matter over to Officer Joseph Marcantonio, a certified Drug Recognition Expert (DRE). In addition to his considerable training and experience as a DRE, he is also a registered nurse, certified emergency nurse, and certified paramedic. The DRE observed defendant for almost an hour. The DRE found defendant slow to respond, slurring her words, staggering, and holding onto the wall. Defendant said she had sciatic pain in her right leg. She said that she suffers from migraine headaches, for which she was taking Fiorinal, Xanax, and Ambien. She stated that before driving, she took two 10mg Ambien tablets, and one Xanax tablet.
Defendant's eyes were watery, her eyelids were droopy, and her pupils were smaller than normal, indicating narcotic analgesic ingestion. Her eyeballs demonstrated lack of convergence suggesting depressant drug use, and vertical nystagmus indicating a high dose of alcohol or depressant drugs. The DRE administered SFSTs, but she staggered, stumbled, repeatedly fell against the wall, and missed every heel-to-toe and finger-to-nose touch. The DRE had to stop the tests because she could barely stand and almost fell to the floor. Her muscle tone was very flaccid, which is consistent with use of a narcotic analgesic, but her blood pressure and pulse were not consistent. Because the DRE believed defendant was grossly impaired, he summoned an emergency medical technician (EMT) who took her to the hospital. Defendant told the EMT that she had a migraine headache and had taken Fiorinal in the afternoon and two Ambien pills in late afternoon or early evening.
The DRE concluded that defendant was under the influence of a narcotic analgesic and a central nervous system (CNS) depressant and was unable to operate a vehicle safely. Her urine sample showed butalbital, a CNS depressant. It is commonly sold as Fiorinal with Codeine, a narcotic analgesic, but no codeine was in the urine sample. The urine sample also did not contain Xanax and Ambien. The DRE testified that defendant could still have consumed those drugs but not yet metabolized them into her urine, which takes hours. The DRE testified that combining such drugs would cause intoxication, slurred speech, slowed reflexes, and gross impairment, and that a person taking butalbital should not operate a motor vehicle.
At trial, the State called Officer Taulane and the DRE. Defendant's counsel called the EMT, who testified that defendant was responsive and her pupils, pulse, and blood pressure were normal. Defendant's counsel then called Dr. Richard Saferstein, the former Chief Forensic Scientist for the New Jersey State Police and a nationally-known expert in forensic toxicology. Dr. Saperstein testified that the DRE's opinion was absolutely inconsistent with defendant's urine test, flaccid muscle tone, and normal pupils, pulse rate, and blood pressure. He testified that finding a drug in the urine indicates only past consumption, not present impairment. He added that butalbital remains in the urine for five to seven days, while codeine remains only forty-eight to seventy-two hours, indicating that defendant took Fiorinal more than two days before.
II.
Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50, and other offenses. On June 17, 2004, after trial and written summations, the East Brunswick Municipal Court convicted defendant of driving while intoxicated. The court found "compelling evidence that the defendant was under the influence." The court credited the DRE's testimony that the drugs defendant said she had taken had not yet entered her urine. The court sentenced defendant to 90 days' incarceration, community service, license revocation, and fines.
Defendant appealed to the Superior Court for a trial de novo. After hearing argument and reviewing the record, the Law Division judge convicted defendant of driving while intoxicated. The judge's November 30, 2004 opinion relied on the officers' "overwhelming observations of considerable impairment." The judge also found "the experience of Officer Marcantonio more than sufficient for this [c]ourt to accept his credible opinion."
Defendant appealed to this court. At oral argument, her appellate lawyer acknowledged that defendant was unfit to drive when she was arrested. We affirmed, "satisfied that Marcantonio's training and experience were sufficient to qualify him to testify as a DRE and that his additional medical training qualified him to testify with respect to defendant's condition at the time he observed her and render an opinion as to the cause of her condition." State v. Reiter, No. A-2652-04 (App. Div. Feb. 6, 2006) (slip op. at 8-9).
Defendant appealed to the Supreme Court, State v. Reiter, 188 N.J. 351 (2006), which remanded to this court for reconsideration in light of State v. Bealor, 187 N.J. 574 (2006). On remand, we held that "the weight of the State's proofs was sufficient here because the DRE, who had extensive training and was certified in drug recognition, opined that defendant's appearance and demeanor indicated she was impaired." State v. Reiter, No. A-2652-04 (App. Div. July 27, 2007) (slip op. at 3). The Supreme Court denied certification. State v. Reiter, 200 N.J. 370 (2009).
On January 21, 2011, defendant filed a PCR petition under Rule 7:10-2(c)(1). A different municipal judge heard arguments, and denied the petition without an evidentiary hearing. A different Law Division judge heard arguments, conducted a de novo review of the record, and also denied the petition without an evidentiary hearing.
Defendant appeals, raising the following claims:
THE MUNICIPAL COURT AND LAW DIVISION COMMITTED PLAIN AND REVERSIBLE ERROR BY DENYING THE PETITIONER'S REQUEST FOR A PCR HEARING.
A. TRIAL COURTS ARE REQUIRED TO GRANT EVIDENTIARY HEARINGS AND MAKE A DETERMINATION ON THE MERITS OF A PETITIONER'S CLAIM IF THE PETITIONER HAS PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
B. THE PROOFS OFFERED BELOW ESTABLISHED A PRIMA FACIE CASE REQUIRING THE HOLDING OF A PCR HEARING.
i. [TRIAL COUNSEL] FAILED TO PROPERLY CONSULT WITH THE PETITIONER, FAILED TO CALL CRITICAL WITNESSES, AND FAILED TO INTRODUCE IMPORTANT DOCUMENTS WHICH WOULD HAVE SUPPORTED THE PETITIONER'S POSITION AT TRIAL.
ii. [TRIAL COUNSEL] NEGLIGENTLY FAILED TO CHALLENGE OFFICER MARCANTONIO['S] QUALIFICATIONS AS AN EXPERT WITNESS.
iii. [TRIAL COUNSEL'S] ABILITIES AS A CROSS EXAMINER AND COUNSEL AT TRIAL WERE SUBSTANDARD AND UNPROFESSIONAL.
C. THE MUNICIPAL COURT'S REASONING DENYING THE PETITIONER THE OPPORTUNITY FOR A HEARING REQUIRES REVERSAL.
D. THE LAW DIVISION'S REASONING DENYING THE PETITIONER THE OPPORTUNITY FOR A HEARING REQUIRES REVERSAL.
III.
We must hew to our standard of review. "Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). The PCR courts here, however, heard no live testimony and made no factual findings, instead deciding the case on legal grounds. We "need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41.
Post-conviction relief courts need not grant evidentiary hearings unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid.
Defendant must establish ineffective assistance of counsel under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009). "Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. Defendant must prove both prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, __ U.S. _____, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2013).
To establish the first prong, a defendant must show deficient performance by counsel "so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 349-50. There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005).
To satisfy the second prong, a defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 367 (2008). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid.
IV.
Defendant fails to establish a prima facie case for most of her claims of ineffective assistance. Defendant alleges that trial counsel was late to court proceedings, and only met with her once to prepare her defense. The municipal and Law Division judges properly recognized that such allegations do not show prejudice or a lack of preparedness, particularly as counsel called two defense witnesses, including an expert. Similarly, counsel is not ineffective because he garbled a question or made some unsuccessful objections. Defendant claims that counsel should have questioned the DRE's qualifications, but this court and the municipal and Law Division judges repeatedly found the DRE qualified, and defendant fails to set forth any questions, let alone answers, that might have changed the result of the proceeding.
Defendant claims that trial counsel should have introduced a document from a pharmacy showing prescriptions she had there since January 1, 2003, because it did not include Xanax. As she had been prescribed Xanax earlier, the document could not prove that she did not retain some Xanax or acquire it elsewhere. More importantly, the document would have harmed her, as it showed that she obtained repeated prescriptions for Ambien and butalbital, including a new prescription for butalbital on June 10, 2003, one day before the incident and three days after she claimed she had last taken it. A "defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Arthur, supra, 184 N.J. at 319. Defendant has failed to overcome that presumption.
Defendant also has failed to establish a prima facie case that trial counsel should have called her then-fiance, David Kroll, as a witness. Defendant failed to attach a certification from Kroll as to how he would have testified, contrary to State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Furthermore, "[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront," so "a court's review of such a decision should be 'highly deferential.'" Arthur, supra, 184 N.J. at 320-21.
Defendant's own certification shows that calling Kroll would have revealed that he called the police dispatcher, met with the DRE, and reported to both that defendant had taken medication before leaving, that she was suffering from a medical condition, and that the police should stop her from driving. Calling Kroll thus would have introduced harmful evidence that was not brought out at trial.
Defendant argues that Kroll would correct that harmful evidence by testifying that he falsely told police defendant had taken medications, even though he did not really know, so police would stop her from going to the shore so she would stay and care for his parents. That testimony hardly would have made him a credible witness. Moreover, the officers did not testify that they relied on what Kroll had told police. Instead, the officers relied on defendant's own admissions that she had just taken medications, and her obvious physical impairment.
Trial counsel successfully objected that Officer Taulane could not testify to what he heard on the police radio.
Trial counsel prepared Kroll to testify, but decided not to call him. Given the ample reasons for not calling Kroll, a reasonable strategic basis plainly existed. Defendant therefore has failed to "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" See Arthur, supra, 184 N.J. at 319.
For the same reasons, there may be no reasonable probability that, if Kroll had been called, the result of the proceeding would have been different. See Allegro, supra, 193 N.J. at 370. We need not reach that second prong of ineffectiveness because defendant has failed to satisfy the first prong.
Accordingly, the PCR courts rightly denied all of the above claims without an evidentiary hearing.
V.
Defendant's contention that trial counsel should have called her as a witness presents a different question, because that was not counsel's decision to make. "The decision whether to testify rests with the defendant." State v. Bey, 161 N.J. 233, 269 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Thus, "[c]ounsel may not merely rely on their own trial strategy." Id. at 270. Rather, "[t]he decision whether to testify, although ultimately defendant's, is an important strategical choice, made by defendant in consultation with counsel." State v. Savage, 120 N.J. 594, 631 (1990).
Defendant lumped together her claims that trial counsel failed to call her and Kroll, and the Law Division judge similarly did not note the difference. The judge stated that counsel's "choice" not to call defendant "squarely falls into what the Court in Strickland [] considered trial strategy." The judge ruled that he "cannot disturb what could be called trial strategy," and that he could not fault counsel's "decision not to put Ms. Reiter on the stand." Because this was not counsel's decision to make, the judge's analysis was incorrect.
In her PCR certification, defendant averred:
I only met with [trial counsel] on one (1) occasion to prepare my defense in anticipation of [t]rial. At no time during our meeting did [counsel] discuss my testimony for trial. I advised [counsel] that I wanted to testify but he told me that my testimony was not necessary.After recounting her proposed testimony, defendant added:
. . . .
I told [counsel] that I wanted the opportunity at trial to explain the circumstances that surrounded the day of my arrest.
I attempted to advise [counsel] of the forgoing so that he could present this testimony to the court. [Counsel] totally ignored me and advised that my testimony was not necessary. In fact, it was absolutely necessary . . . .
Defendant's certification, viewed in the light most favorable to defendant, is sufficient to raise a prima facie case of deficient performance. "'[I]t is the responsibility of a defendant's counsel . . . to advise defendant on whether to testify and to explain the tactical advantages or disadvantages.'" Bey, supra, 161 N.J. at 270. To do so, a defense counsel must have an idea of what testimony the defendant could give. Here, defendant's allegations that counsel never discussed her testimony for trial, and "totally ignored" her when she attempted to explain her proposed testimony, was sufficient at least to allege that counsel did not "sufficiently consult with defendant." See id. at 271; see also State v. Sheika, 337 N.J. Super. 228, 248-49 (App. Div.), certif. denied, 169 N.J. 609 (2001).
The Law Division judge noted that defendant's certification asked him "to assume" that trial counsel ignored defendant's proposed testimony. The judge concluded that he "can't make that assumption" because "I don't know what happened between" trial counsel and defendant. However, that "there are material issues of disputed facts that cannot be resolved by reference to the existing record" is a precondition for granting a hearing, not a reason for denying a hearing. See R. 3:22-10(b); State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999) .
Because we find that defendant showed a prima facie case that trial counsel's performance was deficient, we must examine whether she showed a prima facie case of prejudice. See Bey, supra, 161 N.J. at 271-72. Defendant's certification avers that she had not taken Xanax since 2000, that she "had not taken [butalbital] since June 7, 2003," and that she "took no medications at all before [she] left [their] house to go down to the shore." Defendant also claims that she spoke only to the arresting officer and the EMT, and never spoke to the DRE. Finally, defendant asserts that she was "out of it" on the day of her arrest because she had driven 200-300 miles, was exhausted, had just had an argument with Kroll, was upset, and had a migraine headache.
Defendant's certification thus denied the central allegation against her, namely that she drove "while under the influence of [a] narcotic, hallucinogenic or habit-producing drug." N.J.S.A. 39:4-50. She denied taking any medications before driving. She claimed to have last taken butalbital four days earlier — sufficient time, according to her expert, for it to cease having an effect but to remain in her urine. She contradicted her alleged admissions of drug use to Officer Taulane and the EMT, and denied any admissions to the DRE.
The PCR courts found no prima facie case of prejudice by ruling that defendant's denials would not be believed. The municipal court ruled that that defendant's "self-serving statements . . . would have been irrelevant in the light of the testimony of Officer Taulane and Officer [Marcantonio] as to her physical condition." The court explained that her testimony about her emotional state was not a sufficient "alternate explanation" and "would [not] have resulted in a different outcome" because an "emotionally distraught person" would not have been "in the physical state that Ms. Reiter was in at the time." The Law Division judge ruled that even if defendant testified as set forth in her certification, "her testimony would have been different from the police officer's testimony [and] is not overwhelming evidence that would have changed the verdict." The judge added that putting defendant and Kroll on the stand "would invariably cause the witnesses to contradict themselves," and would expose defendant "to further cross examination" and claims of perjury.
Defendant cites this statement as error, but the judge clarified his awareness that the standard was preponderance of the evidence.
Defendant argues that a PCR court cannot decide whether her proposed testimony is credible without hearing her testify. Under the circumstances of this case, we agree. Even though the officers' testimony is contrary to defendant's certification, "the PCR judge could not find the former more credible than the latter absent an evidentiary hearing because he did not have the opportunity to see and hear defendant testify on any occasion"; indeed, neither PCR judge had presided over earlier proceedings. See State v. Gaitan, 419 N.J. Super. 365, 370 n.3 (App. Div. 2011), rev'd on other grounds, 209 N.J. 339 (2012).
The State cites Cummings and Marshall for the general proposition that evidentiary hearings are not required. In Cummings, the defendant's certification contended "that had he testified he would have said he was not present at the commission of the crime but was at the apartment of Kyle Brown in Newark, New Jersey." 321 N.J. Super. at 170. Noting that Cummings filed his petition ten years after his conviction, we concluded "that this bare assertion of an alibi at this late date, without more, is insufficient to support a prima facie case of ineffectiveness." Id. at 171.
Here, we are troubled that defendant filed her petition seven and a half years after her conviction. Nonetheless, we cannot say that defendant's certification is a bare assertion as in Cummings. Nor is this a situation where "the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." Marshall, supra, 148 N.J. at 158.
The municipal court mistakenly found that defendant's PCR petition was timely because it was filed within five years of the Supreme Court's denial of reconsideration on November 4, 2009. In fact, defendants generally may not file a petition "more than five years after entry of the judgment of conviction." R. 7:10-2(b)(2); accord R. 3:22-12(a)(1); State v. Murray, 162 N.J. 240, 249 (2000). The State never asked the PCR courts or this court to rule that the petition was untimely, however, so we decline at this late stage to question on our own initiative the timeliness of the petition. Cf. Day v. McDonough, 547 U.S. 198, 209, 126 S. Ct. 1675, 1684, 164 L. Ed. 2d 376, 387 (2006) (federal courts "are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition").
Accordingly, the municipal court must hold an evidentiary hearing, at which defendant may testify, to determine whether trial counsel was ineffective in failing to consult properly with defendant about whether she should testify on her own behalf. After hearing her testimony, the court may consider its credibility and all other relevant factors, including those previously relied upon by the PCR courts, in determining whether defendant has shown ineffective assistance of counsel.
Trial counsel may also testify. Defendant must remedy her failure to serve him with her petition, as required by McKnight v. Office of the Public Defender, 197 N.J. 180, 183 (2008).
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Reversed and remanded to the East Brunswick Municipal Court.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION