Opinion
DOCKET NO. A-4830-11T2
07-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALTER TOWNSEND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Calvin W. Souder, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-01-0137. Joseph E. Krakora, Public Defender, attorney for appellant (Calvin W. Souder, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Walter Townsend appeals an October 17, 2011 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm in part and reverse in part.
I.
A.
We incorporate by reference the procedural history and facts necessary for this decision as set forth by the Supreme Court opinion reversing the Appellate Division and reinstating defendant's conviction and sentence. State v. Townsend, 186 N.J. 473, 480-85 (2006).
On December 11, 1981, defendant lived with his girlfriend, Norma Williams, and her two sons, seven-year-old Jason and three-year-old Brian.
That evening, defendant entered the home and told the two boys to go upstairs. The boys did so but stopped on the staircase and watched as defendant repeatedly struck their mother with a two-by-four with exposed nails until she was motionless. Defendant then picked her up and called the boys to accompany him to the hospital.
[Id. at 480.]
At the hospital, a police officer briefly questioned Williams about the assault. After she told the officer that she was struck by a car, she lost consciousness. Ibid. Several hours later, a detective questioned her again. Id. at 481. When asked if defendant had hit her, Williams shook her head from side-to-side indicating "no". She also shook her head "no" when asked if a truck had struck her. When asked about the car, she nodded "yes." Ibid. Williams died soon thereafter.
That night, Jason gave conflicting statements to the police about the incident. Initially, he told police that his mother had been hit by a red truck and "three men got out of the truck and beat her with sticks before leaving." Id. at 480-81. Later, Jason repeated his story about the red truck, but then said he did not see the three men beat his mother. Id. at 481. After Williams died, defendant and the boys were taken to the police station where Jason gave another statement in which he accused defendant of fighting with his mother and striking her with a board. Ibid. Jason told the officers that defendant ordered him to tell the story about the red truck and the three men. Id. at 481-82. After waiving his Miranda rights, defendant denied influencing Jason's statement and stated he never threatened him. Defendant provided a vastly different version of events that placed him in a corner bar at the time of the assault upon Williams. Id. at 482.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Dr. Raafat Ahmad, the Mercer County Medical Examiner, performed an autopsy on Williams's body and listed her manner of death as "undetermined." Id. at 484. The police completed their investigation without filing any charges against defendant. Id. at 482.
In 2001, the sons contacted the Prosecutor's Office and requested that the case be reopened. Id. at 483. In addition to the detective's investigations and interviews, Dr. Ahmad reviewed her initial autopsy. Id. at 484. She concluded that Williams's injuries were more consistent with having been beaten than having been hit by a vehicle. Ibid.
On January 30, 2002, a Mercer County grand jury indicted defendant for Williams's murder under N.J.S.A. 2C:11-3(a)(2). A nine-day jury trial commenced in October 2002. The jury found defendant guilty. The trial court imposed an extended sentence of thirty years to life imprisonment with five years of parole supervision.
Defendant appealed to this court. He argued that the admission of Williams's dying declaration did not justify the State's use of expert testimony on battered women and battered women's syndrome. He further argued that the State's twenty-year delay in prosecuting him violated his due process rights. We concluded that the State's delay did not offend due process, but reversed his conviction, holding that it was plain error to admit expert testimony regarding battered women's syndrome without a limiting instruction. 374 N.J. Super. 25, 57 (App. Div. 2005).
The Supreme Court granted the State's petition for certification, State v. Townsend, 183 N.J. 218 (2005). The Court reversed, holding that the trial court properly admitted the State's expert evidence on battered women's syndrome, but remanded the matter for resentencing. Townsend, supra, 186 N.J. at 500.
Defendant appealed after the resentencing, and subsequently filed for PCR. The trial court dismissed the application without prejudice because of the pending sentencing appeal. We affirmed the judgment on an Excessive Sentence Oral Argument (ESOA) calendar on October 27, 2008, but remanded for recalculation of gap-time credits and for modification of defendant's fines.
On January 9, 2009, defendant reinstated his PCR petition. The Office of the Public Defender assigned the case to Michael G. Paul, Esquire. He filed a thirty-five page brief in which he argued ineffective assistance of trial counsel because: (1) trial counsel failed to zealously investigate the claims made by Brian and Jason Williams; (2) trial counsel failed to call an expert witness to rebut the testimony of the State's medical examiner; and (3) trial counsel failed to raise the issue of the court's failure to give the jury limiting instructions on the proper use of expert testimony elicited at trial with respect to the characteristics shared by battered women and women suffering from battered women's syndrome.
On December 3, 2010, defendant filed a pro se brief in which he raised additional arguments alleging ineffective assistance of trial counsel:
POINT I
THE INADEQUATE REPRESENTATION THAT PETITIONER RECEIVED AT TRIAL FELL BELOW AN OBJECTIVE REASONABLE STANDARD, THUS VIOLATING HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A.
Trial counsel's failure to investigate whether the owner of Al's auto body shop (Tony Leopardi) was responsible for the death of Ms. Norma Williams (victim), served to deny defendant effective assistance of counsel.
B.
Trial counsel's failure to obtain a copy of Ms. Norma Williams['s] statement made to the Trenton Police Department prior to her death, regarding the break-in at Al's auto body shop, served to deny defendant effective assistance of counsel.
C.
Trial counsel's failure to investigate Ms. Norma Williams "Dying Declaration" i.e., that a red car had hit her, served to deny defendant effective assistance of counsel.
D.
Trial counsel was ineffective in his assistance through his failure to thoroughly pursue and present the D.N.A. evidence that were taken from Ms. Norma Williams['s] finger nails.
E.
An evidentiary hearing is required w[h]ere the defendant asserts a Prima Facie case involving facts which are not part of the record.
POINT II
Trial counsel was ineffective for failing to suppress the arrest warrant, as it was obtain[ed] in violation of defendant's Fourth Amendment right.
POINT III
This court should grant the defendant a new trial based on the newly discovered evidence.
POINT IV
Trial counsel failed to explain all factor[s] of the Trial case, and also available legal action options that were available to this defendant during trial, to the point necessary so that this defendant could have made a[n] informed decision(s).
POINT V
Grand Jury Indictment(s) were Insuf[f]icient Indictments. Mr. Brian Williams and also Mr. Jason Williams both gave knowing and willing false statements to the Trenton Homicide Unit, Cold Case Squad Detective Mr. Albert DiNatale, for a wrongful purpose to gain financial benefits from their mother
Ms. Norma Williams['s] death, by way of insurance funds.
Grand Jury Indictments were based upon the fruit of this poisonous tree.
Brian Williams later confessed this defendant[']s innocence in a letter to this defendant. Brian Williams also claimed, that, "he (Brian Williams) did not see this defendant kill his mother Ms. Norma Williams."
Defendant included a certification and copies of letters he had written to trial and PCR counsel seeking, among many things, interviews of certain individuals, and an investigation into his alternative defense theory. Defendant contended that Tony Leopardi, owner of an auto body shop, and his son, retaliated against Norma Williams for her knowledge of an insurance fraud scheme involving their business. Defendant also included a letter, dated July 22, 2003, that he claimed to have received from Brian Williams after the conviction, in which Brian purportedly admitted to giving false testimony during the trial and mentioned an investigation of the Trenton police department.
The note read:
I came up there on Saturday the 19th of July. I wasn't on the visitor list. It was for contact visit so I can receive the paper work. Unfortunately my name wasn't on the list. The Sgt. was giving me a hard time so he wouldn't check with the inmate to see if he would see me.
. . . .
The F.B.I. must [have] began investing [sic] the police station. So the police sold you out to keep the heat off their ass. Your attorney I haven't seen or heard from. Prosecutor Office is nervous. That's how I know that you guys were acquitted. The police know you like you are one of them. Don't let them Poblaski, Wyzinski and other get away. They got boat[,] cars[,] motorcycles[,] and houses. Look what you got. PLEASE BURN THEM. They left you out to take (Falls.) They make you be the[ir] dog trainer, informant, and mechanic and do dirty. Look at the reward you get "FUCK THEM." That['s] why [they are] nervous. Tell my lawyer everything. I did not see you kill my mother, I told Jason. He said he already knew.
On April 26, 2011, the court heard oral argument on defendant's PCR application as well as his motion to dismiss his PCR counsel as ineffective. Defendant attached a certification in support of the latter motion in which he alleged that PCR counsel: "deliberately ignored" his requests to include "several points in the PCR petition;" did not send photocopies of discovery documents to him at his request; and did not sufficiently confer or correspond with him.
PCR counsel argued that he had "three meaningful consultations" with defendant to make sure he was "able to know and properly advance" all of the issues defendant wanted to advance. Counsel presented an argument in support of defendant's petition, and incorporated defendant's arguments, stating defendant "did a very good job of submitting his own pro se pleadings." Counsel urged the court to consider defendant's arguments pursuant to State v. Webster, 187 N.J. 254, 257 (2006).
At the conclusion of counsel's argument, the court gave defendant the opportunity to highlight the claims he raised in his pro se brief. The following colloquy ensued:
THE COURT: . . . Mr. Townsend, are there any additional points which, in your motion that I just received, you argue that [PCR counsel] did not argue all the points you wanted him to in his brief. I do note there are some additional points which you raise in your pro se brief.
THE DEFENDANT: Yes, sir.
THE COURT: Between the brief [PCR counsel] submitted and the brief you submitted, does that cover all the points you wanted to raise before me?
THE DEFENDANT: It is all.
THE COURT: It is all there?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And do you agree that [PCR counsel] went on two, if not three, occasions and visited you at the New Jersey State Prison to discuss this petition?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. All right. Because I know that was one of your concerns. And so it appears to me you had sufficient discovery in order to file your own very detailed and complete brief. So, presumably, you had your own discovery since you filed such a fine brief on your own behalf.
Do you agree with that?
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: Okay. Is there anything else you want to say to me concerning this PCR petition or the representation [PCR counsel] has provided you?
THE DEFENDANT: Your Honor, may I speak, please, sir? Is it all right for me to speak?
THE COURT: Yes, [I am] giving you permission. You can stand too.
THE DEFENDANT: You know, your Honor, the confusion word there, that I [did not] have a problem with [PCR counsel] doing it, but the thing that it were [sic], when I write him letters, you know, he never tells me what was going on in the court procedures, and I felt though that he abandoned me. So that was my mistake there.
THE COURT: Okay. But you agree he provided to me a very complete and detailed, well-written brief?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
THE DEFENDANT: Yes, sir.
THE COURT: Well, [I am] happy you agree with me. Because, in my experience, he has
really represented you over and above the standard that is necessary.
THE DEFENDANT: Yes, sir.
THE COURT: Thank you, sir.
THE DEFENDANT: All right. Thank you, your Honor.
Thereafter, the court denied defendant's request to dismiss his PCR counsel, explaining that counsel "wrote a 35-page brief" that was "articulate" and "well[-]reasoned." It further commended counsel for attaching several exhibits and a table of contents, for conferring with defendant three times in prison, and for going "over and above" his duties to compile documents in the case. The court reserved decision on defendant's petition.
On October 17, 2011, the court issued a written opinion denying defendant's petition. The court addressed the arguments raised in defense counsel's brief, stating:
Defendant presents three major arguments in support of his post-conviction relief claim that he was denied effective assistance of counsel: (1) trial counsel failed to zealously investigate the claims made by Jason and Brian Williams that they sawD[d]efendant kill their mother; (2) counsel failed to call an expert witness to rebut testimony of the State's medical examiner who discussed Battered Women's Syndrome; and (3) counsel failed to raise the issue of the [c]ourt's failure to give the jury limiting instructions on the proper use of expert testimony regarding the use of expert
testimony to describe[] the behavior of individuals suffering from Battered Women's Syndrome.
With respect to trial counsel's alleged failure to investigate Brian and Jason Williams's motive for requesting the reopening of the investigation, the court ruled:
Based on the foregoing evidence, . . . defendant's trial counsel was not deficient under the first Strickland/Fritz prong. Defendant has present[ed] nothing more than allegations to meet the burden necessary to establish ineffective assistance of counsel in this regard. He makes allegations Jason and Brian sought to reopen the case purely for financial gain. While the testimony of Brian and Jason was certainly damaging, defense counsel properly conducted a cross-examination of the two men at trial. He attempted to bring up several inconsistencies in the testimony of Jason Williams in particular, the older brother, comparing statements he conveyed to police nearly twenty years prior to trial with statements he was providing at trial. Additionally, for matters of strategy, defense counsel can make certain decisions without approval from his client as he sees fit to best represent said client. Defendant offers very little in the way of showing the two men sought to bring this case against [d]efendant for financial purposes. Furthermore defense counsel could have properly determined, for strategic purposes, such a suggestion would be damaging to [d]efendant's case. Therefore, he is not entitled to an evidentiary hearing
on these grounds because he failed to state a prima facie case.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). --------
The court also found that defendant failed to state a prima facie case that trial counsel was ineffective for his failure to rebut the testimony of the State's medical examiner, Dr. Ahmad, and the State's expert, Dr. Kubus, who testified to battered women's syndrome concerning Norma Williams's dying declaration that she was hit by a car and not beaten by defendant. The court explained that trial counsel's cross-examination of Dr. Ahmad satisfied his duty to provide effective assistance. Moreover, the court rejected defendant's claim regarding trial counsel's failure to call a rebuttal expert to challenge Dr. Kubus's testimony, because trial counsel called Dr. Robert J. Coughlin, a licensed psychologist, for that purpose.
Lastly, the court found that trial counsel was not ineffective for his failure to request a limiting instruction on battered women's syndrome. It reasoned that because the Supreme Court held that trial counsel's failure to request a limiting instruction was harmless error, Townsend, supra, 186 N.J. at 499-500, it also did not constitute ineffective assistance of counsel. In sum, the court found that defendant failed to state a prima facie case for ineffective assistance of counsel, obviating the need for a plenary hearing on the issues raised in his petitions. This appeal followed.
II.
On appeal, defendant raises the following claims:
I. PCR COUNSEL VIOLATED RULE 3:22-6(d) DURING HIS REPRESENTATION OF [DEFENDANT].
A. PCR Counsel Failed to Meaningfully Communicate with [Defendant].
B. PCR Counsel Failed to Investigate and Evaluate [Defendant's] Claims.
(1) PCR Counsel Failed to Investigate [Defendant's] Claim for a New Trial Based on Newly Discovered Evidence.
(2) Other Claims PCR Counsel Failed to Investigate.
C. PCR Counsel Failed to List and/or Incorporate by Reference [Defendant's] Pro Se Claims.
II. THE PCR COURT ABUSED ITS DISCRETION BY DENYING [DEFENDANT'S] REQUEST FOR AN EVIDENTIARY HEARING.
A. [Defendant] Established a Prima Facie Case of Ineffective Assistance of Trial Counsel for Failure to Call an Expert Witness to Rebut the State's Medical Examiner.
B. [Defendant] established a Prima Facie Case of Ineffective Assistance of Trial Counsel for Failure to Investigate the Motives of the Prosecution's Only Eyewitnesses.
C. [Defendant] Established a Prima Facie Case of Ineffective Assistance of Trial Counsel for Failure to Request a Limiting Jury Instruction Regarding BWS, Past-Acts Testimony and Dying Declaration Testimony.
Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). "A PCR hearing is 'not a pro forma exercise, but a meaningful procedure to' root out mistakes that cause an unjust result either in a verdict or sentence." State v. Hess, 207 N.J. 123, 144-45 (2011) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)).
In accordance with Rule 3:22-2(a), a defendant may seek PCR relief based upon the "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." However, PCR "is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits." Preciose, supra, 129 N.J. at 459 (citations omitted). Consequently, under Rule 3:22-4, any issue that was not raised on direct appeal cannot be a basis for PCR unless it could not have reasonably been raised on direct appeal, denying relief would result in a fundamental injustice, or denying relief would violate the Constitutions of the United States or the State of New Jersey. However, allegations that counsel was so ineffective as to deprive a defendant of his right to counsel are properly raised in PCR proceedings because evidence of such allegations is often outside the trial record. Preciose, supra, 129 N.J. at 460.
A court reviewing PCR petitions based on claims of ineffective assistance of counsel should grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Id. at 462. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, reviewing courts retain discretion to conduct evidentiary hearings. Preciose, supra, 129 N.J. at 462. When determining whether to grant an evidentiary hearing, the reviewing court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Id. at 462-63. If there are disputed issues as to material facts regarding entitlement to post-conviction relief, a hearing should be conducted. State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000).
We analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Preciose, supra, 129 N.J. at 463; Fritz, 105 N.J. at 58. The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also Fritz, supra, 105 N.J. at 60-61. Even if counsel was ineffective, under the second Strickland prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 60-61.
As to Point I, with the exception of the claims in subparagraph B that PCR counsel failed to investigate defendant's claims including newly discovered evidence, we affirm substantially for the reasons stated by the PCR court. Defendant's claim that his PCR counsel failed to communicate with him and failed to present all the points that he requested be argued before the trial court lack merit, and are not supported by the record.
At the outset, we agree with the trial court that PCR counsel was aware of his obligation under State v. Rue, 175 N.J. 1 (2002), Webster, supra, 187 N.J. at 257, and Rule 3:22-6(d). He attempted to present claims which enjoyed record support, and he incorporated defendant's pro se claims by reference. Moreover, PCR counsel acknowledged that defendant prepared a thorough submission, and did nothing to disparage any of the pro se arguments. See Rue, supra, 175 N.J. at 4. Though PCR counsel may choose to stand on his or her brief at the PCR hearing, and is not required to further engage in expository argument, id. at 19, counsel "[is not] empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the [S]tate's opposition. That kind of conduct contravenes our PCR rule." Ibid. Indeed, counsel did none of those things. Rather, at oral argument counsel expounded on one of defendant's claims, arguing that the filing of the Williams sons' civil lawsuit against the Trenton Police department, asserting improper investigation of their mother's death, lent credibility to defendant's alternative defense theory and claim of innocence. We conclude from the foregoing that PCR counsel appropriately presented defendant's claims for the trial court's consideration.
We also find that the trial court properly rejected defendant's claim asserting a lack of communication. Counsel asserted that he met with defendant three times to discuss the case, the evidence, and the claims to be raised in the petition. Although defendant later wrote to counsel expressing displeasure with those meetings specifically, and with counsel's representation generally, defendant acknowledged to the court that two or three meetings occurred, and that all the points he wanted to raise were submitted between counsel's brief and his own.
Based on the foregoing, we conclude the court did not abuse its discretion in finding that defendant failed to satisfy the first Strickland prong, that PCR counsel's performance was deficient, on these two matters. Preciose, supra, 129 N.J. at 463. Therefore, no evidentiary hearing was warranted.
We reach a different conclusion with respect to the remaining claim in Point I, that PCR counsel failed to investigate defendant's claim for a new trial based on newly discovered evidence and the claims raised in Point II regarding trial counsel's deficient performance. As to these matters, the PCR court failed to address these arguments or the arguments raised in defendant's pro se brief, as required under Rule 3:22-11.
When deciding a petition for PCR, the court must "make specific fact findings as required by Rule 1:7-4(a) and state his or her conclusions of law." State v. Thompson, 405 N.J. Super. 163, 172 (App. Div. 2009), certif. denied, 209 N.J. 232 (2012); see also Rule 3:22-11 (requiring a court to "state separately its findings of fact and conclusions of law, and shall enter a judgment" when making a final determination on a PCR petition). "Anything less is a 'disservice to the litigants, the attorneys, and the appellate court.'" Thompson, supra, 405 N.J. Super. at 172 (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).
At the PCR hearing, PCR counsel incorporated defendant's arguments by reference and the State noted that it had responded to defendant's claims in its brief. However, the court's letter opinion addressed only the points raised in the counseled brief. The opinion failed to address defendant's pro se claims, none of which were subsumed by counsel's brief.
The trial court's failure to comply with Rule 3:22-11 and to separately consider defendant's claims constitutes reversible error. PCR petitions "cannot be disposed of out of hand." State v. Odom, 113 N.J. Super. 186, 189 (1971). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).
Because disposition of defendant's petition requires an articulation of specific findings of fact, we are constrained to reverse the order denying the PCR petition and remand for the trial court to determine whether an evidentiary hearing is required and to state separately its findings of fact and conclusions of law as required by Rules 3:22-11 and 1:7-4. This decision should not be understood to express any opinion on the merits or the need for an evidentiary hearing. Those matters are for the trial court to consider in the first instance, recognizing the importance of PCR proceedings that the Supreme Court has addressed at length in its recent decisions. See State v. Nash, 212 N.J. 518 (2013); State v. Parker, 212 N.J. 269 (2012); see also State v. Porter, 216 N.J. 343 (2013).
Affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION