Opinion
DOCKET NO. A-4529-11T1
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TRAVIS LANE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1205. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Travis Lane appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief. We affirm.
Defendant was convicted after a 2007 jury trial of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser-included offense of purposeful murder, N.J.S.A. 2C:11-3; first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; and third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant committed the offenses when he was seventeen years old, but was tried as an adult. After merger, the court sentenced defendant to a forty-year term, with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on direct appeal. State v. Lane, No. A-2238-07 (App. Div. April 13) (slip op. at 2), certif. denied, 203 N.J. 96 (2010). We rejected defendant's arguments that (1) the trial court erred in denying his motion to suppress his confession; and (2) the sentence was manifestly excessive.
We reviewed the State's proofs in our previous opinion and shall not do so at length here. Suffice it to say that the State established that defendant accosted and stabbed Ezequiel Hernandez one time in the neck as Hernandez was riding down the block where he and defendant lived in Neptune Township. As Hernandez sought help from his family, defendant fled on Hernandez's bicycle. Hernandez died shortly thereafter. The State relied on defendant's own confession, as well as the testimony of three juveniles, all friends or acquaintances of defendant. Zane McBride and Antonio Delaney each testified that they saw defendant attack Hernandez and take his bicycle. Albert Miles confirmed the accuracy of a prior statement he gave to police, that defendant admitted he killed Hernandez the day after the attack.
In response to custodial police questioning in the presence of defendant's mother, defendant initially claimed that he was in Belmar with two other friends when the crime was committed. However, he ultimately confessed after police confronted him with McBride's incriminating statement.
Defendant unsuccessfully argued in the Miranda hearing that his waiver of his Miranda rights was neither voluntary nor knowing. He claimed that he lacked the cognitive ability to understand the Miranda warnings. He also asserted police threatened him with the death penalty to secure his confession. Defendant's mother testified at the Miranda hearing that police threatened that her son would receive life in prison, but after a luncheon break, she asserted she had erred and corroborated her son's version of the interrogation. Defendant's mother also admitted that she was on probation for theft by deception involving welfare benefits.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
As we reviewed at length in our prior decision, at the Miranda hearing, defendant relied in large part on the testimony of a clinical psychologist, Mark Siegert, Ph.D., who opined that defendant was "educably mentally retarded," and did not understand the Miranda warnings. The State's expert, Louis Schlesinger, Ph.D., rebutted Siegert's conclusion. Schlesinger asserted that Siegert underestimated defendant's intelligence, and defendant understood the Miranda warnings. The trial court found Schlesinger more persuasive than Siegert. However, the court ultimately gave the most weight to the testimony of the non-expert witnesses in finding that the confession and Miranda waiver were voluntary and knowing.
At trial, as the sole defense witness, defendant repudiated his confession and insisted, as he did initially to police, that he was in Belmar when the crime was committed. He asserted a third party committed the offense. He also claimed his confession was the product of the death penalty threat and his desire to tell the police what he believed they wanted to hear. The defense did not call defendant's mother. The defense also did not call Siegert at trial, but defendant still testified that he did not understand the Miranda warnings.
Defense counsel stated on the record, after the State rested, that he had determined, in consultation with defendant and his mother, not to call Siegert at trial because he had learned that Siegert had embellished his qualifications and was subject to impeachment. We quote at length from defense counsel's statement:
One of the issues at that Miranda hearing was whether Mr. Lane was competent to understand and waive his Miranda warnings.Defendant then agreed on the record that he conferred with his attorney and understood that "by not having Dr. Siegert testify in front of the jury we are not going to argue to the jury that you were incompetent to understand and waive your Miranda rights." He also agreed it would "be wise and in your best interest not to call Dr. Siegert."
I called an expert witness, a psychologist, who was qualified by your Honor among other things, [in] the area of forensic psychology. . . .
. . . .
During the course of this trial, I believe it was last week, [the prosecutor] supplied me with some transcripts where Dr. Siegert - Dr. Mark Siegert, who testified in [the] Miranda Hearing for the defense, testified in two separate cases.
. . . .
As a result of reading those transcripts over the weekend there were some serious questions as to whether Dr. Siegert either intentionally or unintentionally, I prefer to think unintentionally, misstated his qualifications on both the website that he has and his curriculum vitae.
For example, he conceded that he had no formal training in forensic psychology. He had participated in several workshops in forensic psychology. But certainly had no formal training in [it].
He also indicated that he was a professor at Harvard University. He had to concede during cross-examination on the voir dire by the assistant prosecutor in Middlesex County that he was not a professor at Harvard University. He had been affiliated with Cambridge Hospital and through his affiliation with Cambridge Hospital he did have dealings, perhaps taught a course at Harvard but was not a professor at Harvard.
Based upon that, based upon my feelings concerning his testimony in front of your Honor at the Miranda Hearing, I reached a decision, which Mr. Lane concurs with - and I can get his confirmation on the record. That it would be against Mr. Lane's interest for me to present to this jury Dr. Siegert and make the argument that Mr. Lane was incompetent of understanding and waiving his Miranda rights.
I discussed that with Travis. I discussed that with Travis' mother who - was in court during the entire trial. . . . And we reached a general consensus that we would not be calling Dr. Siegert to testify.
The thrust of defendant's PCR petition is that trial counsel was ineffective by failing to adequately investigate Siegert's qualifications, and then by failing to ask for a continuance to hire a new expert. Defendant's pro se petition, filed in October 2010, identified the following five grounds for relief:
1. filing [sic] for ineffective assistance [of] counsel for [t]rial counsel, [d]irect appeal counsel assigned to me and counsel that represented me during the [j]uvenile stages of my case.Although appointed counsel referred to defendant's pro se petition, he did not amplify or provide any argument in support of the points raised therein. Instead, appointed counsel focused on the Siegert issue, asserting in his brief in support of PCR:
2. Denying defendant's Sixth Amendment [d]ue process of [l]aw for [j]uveniles under the confrontation laws.
3. [P]rosecutor[ial] misconduct during the defendant's trial.
4. The [l]ack of an arrest warrant for the defendant on the charges [h]e was arrested for in this case.
5. [P]rosecutor knowingly used false statements from witnesses at [g]rand [j]ury proceeding.
COUNSEL'S FAILURE TO HAVE AN EXPERT PRESENT DURING TRIAL TO COUNTER THE REPORT AND TESTIMONY OF DR. SCHLESINGER REGARDING DEFENDANT'S ABILITY TO UNDERSTAND HIS MIRANDA RIGHTS DEPRIVED DEFENDANT OF DUE PROCESS CONTRARY TO THE UNITED STATES CONSTITUTION.
At oral argument, PCR counsel again addressed only the Siegert issue. Defendant stated he had "other issues to raise, like my arrest warrant issue." The State responded to both the Siegert issue and defendant's pro se arguments.
Judge Francis P. DeStefano denied the petition in a written decision. The judge applied the well-settled two-prong test for determining such claims. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
Judge DeStefano rejected defendant's argument that his trial counsel was ineffective by failing to investigate Siegert's background. The court found persuasive Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000), cert. denied, 534 U.S. 943, 122 S. Ct. 322, 151 L. Ed. 2d 241 (2001), in which the court declined to find a trial counsel ineffective for failing to investigate the credentials of a purported psychological expert. In that case, the "expert" completely falsified his credentials, and had not even graduated from college. However, the trial counsel was not ineffective, as she had used the expert before, and relied on recommendations of attorneys in the public defender's office.
Judge DeStefano found that "Siegert did not 'completely falsify' his credentials," as did the "expert" in Skaggs. Apparently relying on Siegert's Miranda hearing testimony regarding his background, the court found he was a licensed psychologist in New Jersey and New York; he was on staff at three hospitals; and he had assisted the Public Defender's office numerous times. The court noted that Siegert was recognized as an expert in two opinions of our court, citing State v. M.J.K., 369 N.J. Super. 532 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005), as well as State v. Cox, No. A-5883-05 (App. Div. July 18), certif. denied, 196 N.J. 598 (2008).
The judge also found that defendant did not establish prejudice because "there was no testimony given [at trial], by either the defense or the state, regarding [defendant's] competency to waive his Miranda rights." The court found it reasonable for defense counsel not to call Siegert, given the potential impeachment, and the trial court's credibility determinations at the Miranda hearing.
The court also found that it was not ineffective assistance to fail to request a delay or mistrial to retain another expert as defendant did not demonstrate that a court would have granted a mistrial or continuance. Also, "[d]efendant has also not shown that there was any expert available to examine defendant at the time the decision was made to not call Dr. Siegert to testify." Moreover, the court held that defendant had not demonstrated that expert testimony would be found credible, or there would be a reasonable probability of a different result.
The court summarized defendant's pro se claims as: "his trial and appellate counsel were ineffective, he was denied due process, the prosecutor engaged in misconduct during trial, and the prosecutor knowingly used false statements from witnesses at grand jury proceedings." The judge concluded that defendant "has failed to set forth any facts or legal arguments in support of these claims. His contentions are vague and speculative and there is no way for this [c]ourt to properly examine them without more specificity."
On appeal, defendant raises the following issues for our consideration:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT INTVESTIGATING HIS EXPERT'S CREDENTIALS.
POINT II - THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE COUNSEL FAILED TO ADVANCE ALL OF DEFENDANT'S CLAIMS. (Not Raised Below).
POINT III - THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S "ARREST WARRANT" ISSUE NOT ADDRESSED BY THE PCR COURT. (Not Raised Below).
We affirm, substantially for the reasons set forth in Judge DeStefano's written opinion. We limit ourselves to the following brief comments.
We agree with the trial court that defendant has failed to demonstrate that trial counsel's failure to discover the alleged embellishments of Siegert's credentials rose to ineffective assistance of counsel. Defendant does not challenge the court's findings that regardless of any embellishments, Siegert was a licensed clinical psychologist, had been accepted as an expert in our courts and cited in multiple decisions, and had been utilized by the Office of the Public Defender. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction . . . and it is all too easy for a court . . . to conclude that a particular act or omission of counsel was reasonable." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Defendant has not overcome the "strong presumption" that counsel's conduct fell within "the wide range of reasonable professional assistance." Ibid. See also Skaggs, supra, 235 F.3d at 268 (stating that in view of trial counsel's familiarity with, and past use of, expert, "counsel's failure to conduct a full-blown investigation into [his] academic history, or to verify his credentials any further . . . did not fall below an objective standard of reasonableness under Strickland").
Although the Skaggs court concluded that trial counsel was not ineffective in failing to discover her expert's falsification in the guilt phase of the trial, the court found that the trial counsel's continued use of the expert, in the penalty phase, was ineffective assistance, in view of the expert's previous "bizarre and eccentric" testimony. Supra, 236 F.3d at 269. Here, by contrast, trial counsel chose not to continue to use the services of an expert apparently subject to impeachment.
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We also agree with the court's determination that defendant has failed to establish a prima facie case of prejudice. Defendant argues that had trial counsel adequately investigated his expert, he would have chosen not to use him. However, defendant provides no competent evidence that even had counsel done so, counsel would have been able to identify another expert who would have offered a helpful opinion of defendant's alleged cognitive limitations. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (stating that "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon personal knowledge"), certif. denied, 162 N.J. 199 (1999). Absent this proof, defendant's claim of prejudice is nothing more than a "bald assertion." Ibid.
Lastly, we find no merit in defendant's argument that a remand is necessary to consider the claims raised in his pro se petition. The trial court correctly determined that the claims were conclusory and lacked explanation or support. On appeal, defendant provides no additional explication. We recognize that the court did not expressly address defendant's claim that he was wrongfully arrested without an arrest warrant. However, the argument is baseless. As defendant was arrested at his school, an arrest warrant was not required. See State v. Brown, 2 05 N.J. 133, 145 (2011) (stating that "felony arrests made in public places and supported by probable cause can be valid without a warrant").
To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION