Opinion
DOCKET NO. A-2039-12T3
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. PAMELA J. DREADIN, Defendant-Appellant.
Law Offices of Richard Sparaco, attorney for appellant (Mr. Sparaco, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment
No. 04-11-01296.
Law Offices of Richard Sparaco, attorney for appellant (Mr. Sparaco, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Pamela J. Dreadin appeals from the dismissal of her petition for post-conviction relief (PCR), contending that she established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because we agree with Judge Covert that the evidence was inadequate to sustain defendant's burden, we affirm.
A jury found defendant guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a, in the death of her twenty-two-month-old grandson in a car fire. The trial judge sentenced defendant to prison for ten years, the minimum term allowed by statute, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction on direct appeal, State v. Dreadin, No. A-5721-06 (App. Div. Oct. 19, 2009), and the Supreme Court denied certification, 203 N.J. 95 (2010).
The facts of this tragic case are easily summarized. On an October afternoon in 2013, defendant and her daughter Lisa, accompanied by Lisa's son Mikey, defendant's grandson, went to the home of defendant's friend and drug dealer, Sharon Pallet to "snort" crystal meth, a form of methamphetamine. Pallet testified that both mother and daughter used crystal meth that day. Defendant "snorted" two "lines" in the early afternoon and another two lines at about 7 p.m. According to Pallet, the drug made defendant happy and very energetic. Defendant's husband joined them at Pallet's home and "snorted" a line with Pallet's husband.
Defendant's husband left Pallet's house alone to go to a bar, possibly to meet a woman. Defendant and her daughter returned home with the toddler. Some hours later when defendant's husband had not come home and did not answer his cell phone, defendant determined to go out looking for him. As she was leaving, her daughter suggested she take her grandson so that he might fall asleep on the drive. Defendant agreed, and her daughter strapped the toddler into a car seat in the back seat of defendant's Ford Bronco.
While out looking for her husband, defendant was stopped by a police officer in Springfield Township, who observed her driving through several parking lots at 1:25 a.m. The officer testified at trial that defendant told him she was looking for her husband and driving her baby to sleep. The officer observed the toddler asleep in a car seat in the back seat. Satisfied, the officer allowed defendant to continue on her way.
Sometime later, defendant got lost in Eastampton and eventually got the Bronco stuck in mud while trying to turn around on Mill Creek Road. After repeatedly gunning the engine to try and free the vehicle, defendant succeeded only in igniting dry grass and leaves beneath it. After getting out to assess the situation, defendant noticed the smoke and walked to a nearby house to telephone for help about 2:30 a.m.
The homeowner testified that defendant said her car was on fire and asked to use her phone to call 9-1-1. Another witness heard defendant calmly make several more calls while waiting for the police to arrive. The witness testified that at that point the car was smoking and small flames appeared to be coming from under the dashboard.
By the time the police arrived a short while later, the Bronco was engulfed in flames. Defendant was still on the phone and motioned the officer to wait while she finished her conversation. When the officer interrupted her, she was calm. He obtained defendant's name and date of birth and confirmed that it was her car on fire. While they were speaking, the rear window of the Bronco blew out from the heat and flames. The officer testified that when it did so, defendant's whole demeanor changed. She started screaming "[O]h my God. Mikey's in the car. My grandson's in the car. Oh, my God. Save Mikey. I forgot. I can't believe I forgot him." Although the officer tried to rescue the toddler, the heat was too intense to allow him to enter the car. The child perished in the fire.
At trial, the State tried to prove that the child's death was due to defendant having been high on crystal meth. Sharon Pallet testified about using crystal meth with defendant, what they did, how they did it, and how it affected them. The State also presented a pharmacologist who testified at length regarding the adverse effects of methamphetamine on a person's judgment and ability to provide for their own safety and that of those around them. The expert concluded that defendant's use of methamphetamine "was at least causally related to this incident if not directly related . . . [as] the sole cause [of the incident]."
The defense theory was that this was simply a tragic accident brought on, not by defendant's drug use, but by long standing emotional problems and memory loss exacerbated by several recent stressors, including her husband's feared infidelity. The defense impugned the testimony of Pallet and others as that of criminals, drug dealers and junkies who had been spared prison sentences in exchange for cooperating with the prosecution.
Defendant did not testify. Instead, the defense conveyed her version of the tragedy through the testimony of her treating psychologist. He opined that defendant's unfortunate memory loss was caused by long-term severe depression and more recent extreme stress caused by the death of someone close to her, her fear that her husband was having an affair, and her becoming lost and going off the road late at night.
While not denying that defendant had been addicted to methamphetamines for many years, the psychologist explained that she had succeeded in getting off drugs entirely for three or four years, although admitting that she had relapsed some five or six months before the fire. He testified that because of her underlying problems, coupled with the traumatic stress of her grandson's death, defendant could not recall anything about the incident and very little of the day that preceded it. She could not say whether she used any drugs the day he died, but admitted using crystal meth several days before.
Judge Covert heard defendant's PCR petition and rejected her claims that she received ineffective assistance because her counsel did not call defendant or her family members as witnesses, did not give proper advice in regard to an alleged plea offer, and ignored meritorious claims on direct appeal. In a written opinion, the judge quoted the trial judge's lengthy colloquy with defendant regarding her decision not to testify at trial. Finding that the trial judge had carefully explained to defendant her constitutional right to testify in her own defense, the judge wrote that the record clearly established that defendant made the choice not to testify and was fully aware that the choice was hers alone.
The judge discussed trial counsel's decision not to call defendant's family members against the backdrop of the case law which recognizes that the decision as to which witnesses to call is "one of the most difficult strategic decisions that any trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). The decision is generally informed by the testimony expected to be elicited, the possibility of impeachment, both by prior inconsistencies or conflicting testimony by other witnesses, and the witness's general credibility. Id. at 320-21.
The judge determined that trial counsel's decision not to call defendant's daughter or husband was rooted in legitimate concerns regarding their credibility and effectiveness. Both witnesses could obviously be easily impeached by their bias as well as their own drug use. Defendant's daughter's anticipated testimony that her mother was not aware of the child's presence in the car seat was contradicted by other evidence, most notably defendant's own belated pleas for the child's rescue. The judge also noted that "jurors may have been repulsed" by defendant's daughter's testimony on behalf of her mother, especially in light of her having taken her child to Pallet's house while she and her mother "snorted" crystal meth. Judge Covert concluded that trial counsel's decision to use defendant's psychologist, instead of defendant's husband and daughter, to convey defendant's emotional problems before the accident was sound trial strategy not subject to being second-guessed on PCR.
The judge also rejected defendant's claim that her counsel failed to inform her of a plea offer from the State. She noted that defendant failed to support her claim by certification and did not provide any proof that such an offer was made and not communicated to her. Accordingly, she found defendant's bald assertions insufficient to establish a prima facie claim for relief.
The judge also rejected defendant's claims that her appellate counsel, the same lawyer who tried the case, was ineffective. Specifically, she rejected defendant's claim that her lawyer should have raised his failure to object to Sharon Pallet's testimony as well as remarks he made in his opening which defendant characterized as inflammatory. Finding that Pallet's testimony of the effects of methamphetamine use on one's mental state was "entirely relevant to the [S]tate's theory of the case," the judge concluded that "[s]uch an argument on appeal would have been fruitless."
As for counsel's opening, in which he stated that "this case screams out for somebody to be punished" and referred to the State's witnesses, defendant's former friends and associates, as "junkies, drug addicts, criminals, drug dealers and assorted scum," the judge found the comments "a preemptive strike as to the hard evidence to come." Specifically, the judge noted that "[d]efense counsel was in essence attacking the credibility of two of the [S]tate's main witnesses, the Pallets, also abusers of methamphetamines," and that "his remarks addressed the obvious desire to blame and punish when the death of an infant is involved." The judge concluded that the remarks, "in context, explained that the jury must resist the urge to assess criminality when in fact it was just a tragic accident." Finding that such "strategic choices constitute sound representation and do not fall below professional standards," the judge rejected defendant's claims that she received ineffective assistance on appeal.
Defendant appeals, raising the following issues for our consideration:
POINT I - Defendant Made A Prima Facie Showing Of Ineffective Assistance And Was Therefore Entitled To An Evidentiary Hearing.
POINT I(A) - Defense Counsel Failed To Call Witnesses Who Would Have Established The Defense Theory That The Death Of The Child Was A Tragic Accident And Not Due To Criminal Reckless Actions On The Part Of The Defendant.
POINT I(B) - Defendant's Constitutional Right To Testify In Her Own Defense Was Denied Where Counsel Promised The Jury They Would Hear From The Defendant Yet Failed To Call Her As A Witness.
POINT II - Defendant Was Denied The Right To Effective Assistance Of Appellate Counsel Where Counsel Raised Only One Frivolous Issue On Appeal And Ignored Other Viable Appellate Issues, And Was Therefore Entitled To Post-Conviction Relief.
POINT II(A) - Appellate Counsel Failed To Argue That Unduly Prejudicial Evidence That Had No Probative Value Denied The Defendant The Right To A Fair Trial.
POINT II(B) - Appellate Counsel Failed To Argue That The Defendant Was Denied The Right To A Fair Trial Where Her Attorney Told The Jury That Someone Must Be Punished For This Incident; Defense Counsel's Opening Statement And Closing Argument Were So Inflammatory And Prejudicial Against The Defendant That The Statements Could Not Be Considered Sound Trial Strategy.
POINT II(C) - Appellate Counsel's Failure To Raise Issues of Ineffectiveness Does Not Bar Such Issues To Be Raised In Post-Conviction Relief.
POINT III - Defendant Was Entitled To An Evidentiary Hearing Where She Made A Prima Facie Showing That Trial Counsel Failed To Properly Communicate The Plea Offer Proposed By The State, In Violation Of The Recent United States Supreme Court Decisions In Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012) And Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012); Counsel
Misadvised The Defendant On The Law Concerning The Potential Minimum and Maximum Sentence Exposure.
POINT IV - The Court Should Have Granted An Evidentiary Hearing To Decide The Petition For Post-Conviction Relief.
To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is 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, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that she received ineffective assistance of counsel on this record.
Defendant's claim that she was deprived of her right to testify in her own defense is squarely refuted by the record. Both defense counsel and the trial judge engaged in an extended colloquy with defendant on the record in which defendant acknowledged she understood she had the right to make the decision whether or not to testify, that her counsel had indicated to the court that defendant did not wish to testify, and that she could tell the judge that she had changed her mind and would take the stand. Even more telling, however, was defendant's statement that she understood the State could "chew me up and spit me out, too." Defendant understood clearly the risks she would face should she testify, and chose not to do so. As such, her claim that she was denied the right to testify in her own defense clearly fails.
We likewise reject defendant's claim that her counsel failed to call other witnesses who would have established that her grandson's death was a tragic accident not caused by her criminally reckless actions. Trial counsel's decisions as to which witnesses to call are entitled to our considerable deference. Arthur, supra, 184 N.J. at 320-23. As Judge Covert thoroughly explained, there was evidence in the record that both defendant's daughter and her husband had ingested methamphetamines in the hours before the child's death. In defendant's daughter's case, there was testimony that she had taken her son to a known drug house to "snort" crystal meth with her mother on the day of her son's death. The testimony that these witnesses could have provided, that defendant was extremely distracted by her husband's perceived infidelity, was provided by her psychologist. Given the circumstances, there was more than a reasonable basis for counsel's strategic decision to use his expert to convey the information instead of defendant's husband and daughter, who may well have harmed rather than helped defendant's cause.
As for failing to consult and omitting issues defendant wished included in the appeal, it is well-established that appellate counsel need not advance every argument a defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308, 3312-14, 77 L. Ed. 2d 987, 993-95 (1983). Defendant's trial focused on only one issue, whether defendant's failure to remember that her grandson was in the car was due to her having "snorted" crystal meth hours before or to her long-term depression and extreme stress. Not surprisingly, the testimony of which defendant complains relates directly to that issue, as did counsel's remarks in his opening.
Sharon Pallet's testimony regarding the effects of methamphetamine use offered the sort of "evidentiary circumstances that . . . 'tend fairly to explain [a defendant's] actions,'" thus falling within that wider range of evidence generally admitted to prove intent or motive. See State v. Covell, 157 N.J. 554, 565 (1999). While defendant argues that the testimony was unduly prejudicial, the State contends it was highly probative of defendant's single-minded obsessive behavior while under the effects of the drug. Underscoring its relevance, defendant argued that the prosecution's evidence of the effects of methamphetamine was "junk science." Relevant evidence may, of course, be excluded "only where its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issues of the case." Id. at 568. Evidence of motive or intent requires "a very strong showing of prejudice to justify exclusion." Id. at 570. A trial judge has broad discretion in admitting evidence under N.J.R.E. 403, which is reviewed only for abuse. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).
Even were we to agree with defendant that Sharon Pallet's testimony, at least the part that focused on her own behavior while under the influence of methamphetamine or the "highs" that resulted from different methods of ingestion, was not particularly relevant or of great probative value given the testimony of the State's pharmacologist, we could not conclude that defendant was prejudiced by its admission. Indeed, the substantial other evidence in the record regarding the effects of methamphetamine on perception, which negated the probative value of Pallet's testimony, likely rendered it harmless as well. Because defendant offers no basis on which we could conclude that the failure to object to this testimony at trial, or to have raised its admission on direct appeal, would have altered the result of either her trial or appeal, we reject her claim. State v. Preciose, 129 N.J. 451, 463-64 (1992).
Defendant's claim that she received ineffective assistance because her counsel "[t]old [t]he [j]ury [t]hat [s]omeone [m]ust [b]e [p]unished [f]or [t]his [i]ncident" likewise cannot succeed. Opening statements form a part and lay the groundwork for a defense counsel's trial strategy. See State v. Castagna, 187 N.J. 293, 314-16 (2006). 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) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).
Defense counsel's remarks in opening, read in the context in which they were made, were part of his argument that the State had jumped to prosecute defendant from a misguided desire to punish someone for the unspeakable tragedy that had befallen an innocent child. Even assuming arguendo that this was a strategic miscalculation by trial counsel, it would not result in the reversal of defendant's conviction unless she could show that it deprived her of a fair trial. State v. Buonadonna, 122 N.J. 22, 42 (1991). Here, as defense counsel's decision to admit defendant's long-term drug use in his opening and to acknowledge the understandable desire to punish someone for the toddler's death was plainly reasonable trial strategy, it cannot form the basis of an ineffective assistance claim.
Defendant's claims that her counsel misadvised her as to her sentencing exposure and failed to communicate a plea offer are patently without merit on the existing record. Unlike the fact patterns of Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), in which defendants presented details of specific plea offers, here defendant has provided no proof that any plea offer existed. Nowhere does she explain why she believes that the State offered her a plea that her counsel failed to discuss with her, and she does not aver that she was misled as to her sentencing exposure. Further, as Judge Covert noted, conspicuously absent from the record is the transcript of the final pre-trial conference in which the judge would have addressed with defendant the State's final plea offer, if one existed, and her sentencing exposure. See R. 3:9-1(e)(1)-(2). As defendant has failed to muster any evidence to support either of these claims, her prima facie case fails as a matter of law. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Having thoroughly reviewed each of defendant's alleged points of error, we reject her contention that any error, either singly or in combination, could be deemed to have rendered her trial unfair. State v. Orecchio, 16 N.J. 125, 129 (1954). No further discussion of any particular claim is warranted. R. 2:11-3(e)(2). Finally, we agree with the Judge Covert that no evidentiary hearing on defendant's PCR petition was required as defendant failed to establish a prima facie case of ineffective assistance of counsel under Strickland. State v. Preciose, supra, 129 N.J. at 462.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION