Opinion
DOCKET NO. A-0650-11T3
03-14-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN BESS, a/k/a ALEX SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jo-Ann Teng, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-07-3144.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jo-Ann Teng, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a three-day hearing after which he was found competent to stand trial, Kevin Bess was subsequently convicted by a jury of stalking, N.J.S.A. 2C:12-10b; murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); second degree burglary, N.J.S.A. 2C:18-2a(1) and -b(2); unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and receiving stolen property, a handgun, N.J.S.A. 2C:20-7. We affirmed his convictions and sentence to life imprisonment but reversed other aspects of the sentence, including an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and remanded for re-sentencing. State v. Bess, No. A-2733-00 (App. Div. Oct. 10, 2002). The Supreme Court denied defendant's petition for certification. State v. Bess, 175 N.J. 171 (2002).
The murder had been committed prior to the 2001 amendment to NERA to specifically include murder. N.J.S.A. 2C:43-7.2d(1).
Defendant appeals from the denial of his petition for post-conviction relief (PCR), contending that the judge erred in concluding that his petition was time-barred and that he had received reasonably competent representation at his competency hearing and trial. Because we agree that the petition was filed more than five years after the date of the judgment of conviction without excusable neglect, and that the interests of justice do not require relaxation of the five-year bar, we affirm.
Charlene Boyd died from two gunshots to the head fired at close range. Two witnesses saw defendant chase her from her apartment as she ran down the sidewalk clad only in her underwear and wrapped in a blue blanket. After she fell to the ground, defendant pulled her back toward her apartment, pushing her down two steps that led from the sidewalk to her apartment door. As defendant kicked, punched, and slammed her against the wall, Boyd called out "help me, somebody please help me. He's going to kill me." As she was cornered, on the ground, defendant shot her twice in the head. Both witnesses had called 911 and related these events to separate dispatchers as they were happening. A third witness watched defendant run from the scene and throw a gun over a fence into a grassy area from which it was subsequently recovered. Defendant shortly thereafter returned to Boyd's apartment where he was immediately arrested.
The testimony at trial was that the parties had dated briefly several months before the murder and that Boyd had broken it off. Afterwards, defendant made repeated hang-up calls to her home and office. Once, Boyd called the police after defendant began pounding on her door and bedroom window after 11:00 p.m. demanding to be admitted and yelling that he could see Boyd in her bathrobe. Defendant only left after the police arrived. Several of Boyd's neighbors testified to seeing defendant in the neighborhood two days before the murder, standing in front of Boyd's apartment, peering into her window, and watching her apartment from a vantage point behind a tree.
We described in some detail defendant's behavior during his competency hearing and throughout trial in our opinion on defendant's direct appeal. State v. Bess, supra, slip op. at 6-13. Defendant "threw papers, rolled his eyes at the trial judge, made a vulgar gesture, smirked, struggled to rise out of his seat, pretended to become ill, and made noises that disrupted the proceedings." Id. at 16. At defendant's competency hearing, the State presented the testimony of psychiatrists, hospital personnel, and prison staff who portrayed defendant as reporting suicidal feelings, engaging in a hunger strike, refusing to take prescribed medication, threatening self-harm and standing mute in the presence of any psychiatrist, while, at the same time, having no difficulty interacting with staff and other patients or inmates, and presenting as articulate and talkative with the staff physician. Id. at 6-7.
The prison psychiatrist testifying on behalf of the State, opined that defendant was deliberately feigning psychiatric symptomatology. The State's expert psychiatrist, Steven Simring, M.D. testified that he reviewed numerous documents, including the indictment, witness statements, the autopsy report, defendant's psychiatric hospitalization records, and jail records prior to examining defendant at the Essex County Jail. During the interview, defendant told Simring a "fantastic story" about the Ku Klux Klan and the CIA, and asked Simring whether Boyd had killed defendant's wife and kids (he was never married and has no children). Although acknowledging that defendant suffered from schizophrenia, Dr. Simring concluded that defendant was a malingerer, "who presented a vastly different picture when not being seen by the psychiatrist." Id. at 8. The doctor opined that defendant was grossly distorting his symptoms to psychiatrists in order not to be tried for murder.
Defendant's counsel had prepared to counter the State's testimony by having defendant evaluated by her own psychiatric expert, Daniel Greenfield, M.D. Dr. Greenfield initially evaluated defendant almost two years before the competency hearing and submitted several reports in which he opined that defendant was not competent to stand trial. Dr. Greenfield attempted to conduct a follow-up exam at the time of the competency hearing, but defendant refused to see him. Dr. Greenfield did, however, review additional information for an updated report, including the jail records, the reports of the prison psychiatrist, and Dr. Simring's notes of his examination of defendant and subsequent report.
After reviewing the information that defendant was talking freely with his fellow-inmates, and interacting appropriately with the medical and nursing staffs, Dr. Greenfield changed his opinion and agreed with the State's witnesses that defendant was malingering. Dr. Greenfield noted that his opinion of defendant's competency to stand trial had always
included the differential diagnostic possibilities that he has been malingering on the one hand, and on the other, that active symptomatology from his psychiatric (schizophrenic) disorder has legitimately prevented him from being able to participate with [counsel], with regard to the [competency to stand trial] issue. As of the times of my earlier consultation in this matter, it had consistently been my professional psychiatric opinion that Mr. Bess' clinical psychiatric condition legitimately prevented him from participation with counsel. However, as further information has accumulated about Mr. Bess' "off-camera" (my words) presentation, it has become apparent that he has been malingering by refusing to meet either with [counsel] or me to discuss his case or to have a follow up psychiatric interview/examination, respectively.
[phrases in parentheses in original]
The trial court accepted Dr. Greenfield's updated report on the third day of the hearing after both counsel waived his appearance, and concluded on the basis of the evidence, including the testimony of both lay and expert witnesses, that defendant was competent to stand trial. On appeal, we viewed defendant's disruptive behavior throughout his trial as "a deliberate attempt to taint the jury and disrupt the trial process." Id. at 16.
In his PCR petition filed December 5, 2007, more than seven years after entry of the November 16, 2000 judgment of conviction, defendant contended that his trial counsel was ineffective because she failed to call a readily available psychiatric expert who would have testified at the competency hearing that defendant was not competent to stand trial, and that his mental illness constituted excusable neglect for the late filing. In support of his petition, defendant submitted the report of Frank M. Dattilio, Ph.D., a clinical and forensic psychologist. Dr. Dattilio opined that defendant had experienced "substantial mental distress that would have very likely interfered with his ability to be mindful in filing a petition in a timely fashion." He also determined that based on defendant having been "heavily involved in illicit drug use, namely hallucinogenic agents, in addition to alcohol, marijuana, and PCP at the time he allegedly committed the offense," and that defendant's "pervasive pattern of mental illness, namely paranoid schizophrenia, subsequent to incarceration" strongly implies that such an illness had been present for some time and likely exacerbated by illicit drug use, "[i]t is not clear whether [defendant] met the criteria for insanity at [the time of the offense], however, he would very likely have been laboring under a diminished capacity at the very least." Finally, Dr. Dattilio opined that defendant "was marginally incompetent" at the time of his trial, "since he was impaired by his mental illness and did have difficulty assisting his attorney in his defense."
After reviewing Dr. Dattilio's report and hearing argument, the trial judge determined that the petition was time-barred without excusable neglect. Although acknowledging that defendant had a clear history of severe mental illness, the court found ample evidence that his illness did not prevent defendant from filing a timely petition. The court noted that defendant was found competent to stand trial and showed himself capable of participating in the direct appeal of his conviction. Two years after sentencing, defendant participated in the filing of a petition for certification to the Supreme Court. The judge concluded that defendant's demonstrated ability to litigate on his own behalf in the years following his conviction precluded relaxation of the procedural bar.
The judge also rejected defendant's claim on the merits. The court found that trial counsel had acted reasonably in securing the services of an expert who had prepared several reports opining that defendant was not competent to stand trial. That expert changed his mind after hearing testimony adduced at the hearing. The court found that counsel's strategic choice of witnesses could not be considered unreasonable given the deferential standard courts apply to such choices. The judge further found that the choice did not prejudice defendant. The judge found it unlikely that an additional witness for defendant could have overcome the testimony of the State's psychiatrists and lay witnesses who testified, on the basis of close observation over time, that defendant was faking his symptoms to avoid trial.
On appeal, defendant frames the issues as follows:
POINT I:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
POINT II:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS WAS ESTABLISHED, IN THAT COUNSEL FAILED TO HAVE AN EXPERT WITNESS TESTIFY AT THE COMPETENCY HEARING WHO WOULD HAVE OPINED AS TO DEFENDANT'S INCOMPETENCE TO STAND TRIAL AND/OR COUNSEL FAILED TO PURSUE A DIMINISHED CAPACITY, IF NOT AN INSANITY, DEFENSE; IN
THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW. (Partially Raised Below).
Rule 3:22-12 precludes the filing of a first petition for post-conviction relief more than five years after entry of the judgment of conviction in the absence of facts showing that the delay was due to defendant's excusable neglect. In State v. D.D.M., 140 N.J. 83 (1995), the Supreme Court held that a defendant claiming that psychological conditions gave rise to excusable neglect must adduce "specific facts" regarding his "mental state to show that his psychological treatment would have prevented him from pursuing his rights and remedies either on appeal or within the five years provided by statute." Id. at 100.
Since the filing of defendant's petition on December 5, 2007, the rule has been twice amended, to prohibit relaxation of the time bar beyond the terms of the rule, and to further restrict consideration of late petitions occasioned by excusable neglect to those in which enforcement of the bar would result in fundamental injustice. See Pressler & Verniero, Current N.J. Court Rules, comments 1 and 3 on R. 3:22-12 (2013). When the trial judge rendered his decision in December 2010 that defendant's petition was time-barred, both amendments had become effective. Our review convinces us that the trial judge accorded defendant the benefit of the more indulgent standard in effect when he filed his petition. Because we agree with the trial court that defendant's petition is time-barred even viewed under that more indulgent standard, we do not address the issue of whether the stricter standard should have applied. See Romagnola v. Gillespie, Inc., 194 N.J. 596, 603-04 (2008) (assuming that the trial court correctly characterized the rule at issue as procedural and thus applicable to actions pending on its effective date).
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Defendant sets forth no specific facts in his petition to explain why his condition and treatment prevented him from filing timely, but cites only his "mental illness" and "being medicated by psychotropic medications." Assuming that Dr. Dattilio's report could supply the facts that should have been in defendant's petition, see State v. Mitchell, 126 N.J. 565, 577 (1992) (emphasizing that the petition itself must allege the facts relied on to support a claim of excusable neglect), it fails to do so.
Dr. Dattilio notes that defendant was maintained on anti-psychotic medications in State prison following the entry of the judgment of conviction on November 16, 2000, that chart notes in the summer of 2001 reflect that he was "lying on his bunk all day covered with a blanket" at which time he refused all medications, and that he endured one three month psychiatric hospitalization in the fall of 2001. No other treatment is noted and the report fails to acknowledge that defendant's condition and treatment during this period did not inhibit his ability to participate in his direct appeal.
Further, the report offers no information whatsoever regarding defendant's condition and treatment after the end of his hospitalization in December 2001 until the deadline for filing his PCR petition in November 2005. Accordingly, defendant has failed to show specific facts that his psychological condition and treatment for that condition prevented him from filing his PCR petition within the five years provided by statute. His history of serious mental illness alone does not amount to excusable neglect. Ibid.
We also agree with the trial judge that strict adherence to the time bar of Rule 3:22-12(a) results in no injustice to defendant here. Defendant claims ineffective assistance of counsel on the basis of his attorney's failure to call a "readily available" psychiatric expert to testify at his competency hearing that he was not competent to stand trial. He refers to Mahmood Ghahramani, M.D., defendant's "treating and evaluating" psychiatrist when defendant was committed to Ann Klein Forensic Center in April 1999 while awaiting trial in the Essex County Jail. Dr. Ghahramani prepared a report on June 8, 1999 in which he diagnosed defendant as suffering from schizophrenia and concluded that "[h]e does not seem to be capable of standing trial." Defendant contends that his counsel's failure to call Dr. Ghahramani on his behalf at his competency hearing was tantamount to a denial of representation.
In order to establish a right to relief based on trial counsel's failure to present Dr. Ghahramani as a witness at defendant's competency hearing, defendant had to show that a reasonably competent attorney would have presented Dr. Ghahramani and that defendant 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)). We employ "extreme deference" in evaluating trial counsel's performance and acknowledge "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). As a matter of practice, defense counsel's decisions as to trial strategy are "virtually unchallengeable" if made following reasonable investigation. State v. Savage, 120 N.J. 594, 617 (1990) (citing Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695). Measured by those standards, defendant has not established that he received ineffective assistance of counsel on this record.
Dr. Ghahramani rendered his report a year before defendant's competency hearing. The State's psychiatrists, however, based their opinions that defendant was faking his symptoms on defendant's ordinary interactions with other inmates and staff occurring after Dr. Ghahramani's evaluation and before defendant's competency hearing a year later. Defense counsel used Dr. Ghahramani's report effectively throughout her cross-examination of the State's psychiatric experts to establish that defendant had been diagnosed as suffering from schizophrenia, getting Dr. Simring to concede the diagnosis. It was defendant's normal "off-camera" interactions with others over a long period of time, however, that convinced every other psychiatrist who examined him, including, ultimately, the one hired by the defense, that defendant was exaggerating his symptoms to evaluators in order to avoid being tried for murder.
Even assuming that defense counsel's failure to call Dr. Ghahramani was a strategic miscalculation by trial counsel, which we do not, the trial judge was correct to conclude that the doctor's testimony, assuming it would have been favorable in light of the other evidence presented, could not have overcome the testimony of the State's witnesses that defendant was faking his symptoms. Because defendant could not make a prima facie showing of deficient performance and prejudice, the trial judge correctly concluded that no evidentiary hearing was required. See State v. Preciose, 129 N.J. 451, 462-64 (1992) (discussing the circumstances under which an evidentiary hearing is required).
Defendant failed to prove excusable neglect and enforcement of the time bar does not result in fundamental injustice under the circumstances. Because we conclude the petition was time-barred, we do not reach defendant's other issues.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION