Opinion
DOCKET NO. A-5427-11T3
01-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD BRYANT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-05-1003.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of purposeful/knowing murder, N.J.S.A. 2C:11-3(a)(1) and/or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He was acquitted of aggravated assault, N.J.S.A. 2C:12-1(b)(1) and terroristic threats, N.J.S.A. 2C:12-3(b), but convicted of the lesser included offense, fighting, a petty disorderly persons offense, N.J.S.A. 2C:33-2(a)(1). After appropriate merger of the offenses, he was sentenced to an aggregate term of fifty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In his direct appeal, defendant raised the following issues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR ACQUITTAL.
POINT II
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ADVISE THE JURY THAT DIONNE BURSE, THE VICTIM, WAS CARRYING A 15 OR 16 WEEK BABY AT THE TIME OF HER DEATH.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER COUNTS 9 AND 10 OF THE
INDICTMENT BECAUSE OF PREJUDICIAL JOINDER OF CLAIMS.
POINT IV
THE TRIAL COURT ERRED IN PERMITTING NATASHA WILLIAMS TO TELL THE JURY THAT DEFENDANT THREATENED TO KILL HER.
POINT V
THE TRIAL COURT ERRED IN PERMITTING UNDULY PREJUDICIAL EVIDENCE REGARDING AN ALLEGED EARLIER VERBAL DISPUTE BETWEEN DEFENDANT AND DIONNE BURSE.
POINT VI
THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (PLAIN ERROR).
POINT VII
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT'S STATEMENT TO DETECTIVE APPLEYARD.
POINT VIII
THE TRIAL COURT ERRED IN PERMITTING INTO EVIDENCE UNECESSARY [SIC] AND PRE-JUDICIAL AUTOPSY AND OTHER PHOTOGRAPHS.
POINT IX
THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT (PARTIALLY RAISED BELOW).
POINT X
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.
We found that, except for the sentence imposed, there was no merit to any of defendant's arguments. We affirmed defendant's convictions, but remanded the matter for an amended judgment to reflect a thirty-year parole disqualifier rather than an 85% percent disqualifier for his murder conviction. State v. Bryant, No. A-1656-04 (App. Div. July 30, 2007).
Defendant filed a petition for PCR on December 2, 2010. The PCR court denied the petition, setting forth its reasons in a written opinion. In his appeal from that denial, defendant presents the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.POINT II
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PURSUE AN INSANITY DEFENSE IN A TIMELY FASHION, AS A RESULT OF WHICH THE TRIAL COURT CHOSE NOT TO SO INSTRUCT THE JURY.
C. THE DEFENDANT'S FAILURE TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL RESULTED IN THE DEFENDANT NOT TESTIFYING IN HIS OWN BEHALF.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
POINT III
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
The facts underlying defendant's convictions are set forth in our opinion affirming his convictions and need not be repeated here. As we observed, there was a "lack of contest as to the fact defendant caused the victim's death," the result of up to fifty-seven stab wounds.
Rule 3:22-12(a)(1) provides:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.Therefore, because defendant's petition was filed more than six years after his judgment of conviction was entered, his petition is time-barred unless the delay was due to excusable neglect and there is a reasonably probability that the "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).
Defendant has presented no cognizable grounds for a finding of excusable neglect for his delay. We are also satisfied that the enforcement of the time bar will not result in a fundamental injustice.
In State v. Martini, 187 N.J. 469, 481 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007), the Supreme Court observed that "there is no bright-line test to determine when a court should apply the fundamental-injustice exception," and quoted the following applicable principles:
[i]n defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise "wrought a miscarriage of justice for the individual defendant." The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, "to establish injustice there should at least be some showing that . . . [the alleged violation] played a role in the determination of guilt. . . . To conclude otherwise would exalt form over substance."
[Id. at 481-82 (quoting State v. Mitchell, 126 N.J. 565, 587 (1992) (alterations in original) (citations omitted)).]
The thrust of defendant's ineffective assistance claims is that his trial counsel failed to present an insanity defense in a timely fashion and advised him against testifying in his own behalf.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05 N.J. 42, 52 (l987).
Defendant presented an unsuccessful diminished capacity defense, but his request that the jury be charged as to an insanity defense was denied based upon the untimely assertion of that defense. Although we did not preclude the PCR petition based upon an allegation that counsel was ineffective for failing to raise an insanity defense earlier, we expressed reservations that such a defense would be successful. We noted that defendant's request for an insanity charge was based upon the testimony of his expert, Dr. Jonathan Mack, who did not expressly state defendant was insane as defined in N.J.S.A. 2C:4-1. We stated further, "given the burden of proof on an insanity defense is on the defendant, and Dr. Greenfield's testimony that, while defendant had organic brain damage it did not impair his cognitive ability, we cannot assume an insanity defense would have been successful, particularly where the diminished capacity was not."
The State presented the expert testimony of Dr. Daniel Greenfield, a psychiatrist.
N.J.S.A. 2C:4-1 defines the insanity defense as follows:
A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence.
In order to show that this defense was viable, defendant was required to present evidence in the form of expert opinion that satisfied this standard. Instead, he contends that the evidence presented at trial was sufficient, a contention at odds with our observation that the expert testimony failed to meet the statutory definition for insanity. Without proof that his mental state met the statutory definition of insanity, defendant fails to satisfy the second, or "prejudice" prong of the Strickland/Fritz test.
Defendant also argues that his trial counsel was ineffective for advising him not to testify at trial and that he was unaware that he could reject this advice and testify. In his certification, he stated that he had a "deep desire" to testify at trial and "profess" his innocence of the charges. However, he has provided no details as to what testimony he would have given, let alone demonstrated that such testimony would have led to a different result. Moreover, the record shows that the trial judge reviewed defendant's decision not to testify with him, confirming that it was defendant's "desire not to testify in this case."
We are therefore satisfied that defendant's petition was time-barred and that no grounds exist for relaxing the requirements of Rule 3:22-12(a)(1).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION