Opinion
DOCKET NO. A-4240-10T3
06-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL LOWMAN, Defendant-Appellant.
Joseph Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, 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NOT FOR PUBLICATION WITHOUT THE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 Messano and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2629.
Joseph Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Lowman appeals from an order entered by the Law Division on October 13, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree making terroristic threats, N.J.S.A. 2C:12-3(a) (counts three and four); and fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(4) (count five).
Prior to trial, the court granted the State's motion to dismiss counts one, three, and four. Defendant was tried on the remaining counts. At the end of the State's case, the court granted defendant's motion to dismiss count five.
Defendant was found guilty of first-degree robbery, as charged in count two. He was sentenced to fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed and raised the following issues:
POINT I:
THE JURY INSTRUCTION ON ARMED ROBBERY OMITTED THE MENTAL STATE OF "KNOWINGLY" WITH RESPECT TO THE ELEMENT OF SIMULATION OF A WEAPON BY WORDS AND GESTURES - A CRITICAL ERROR WHERE THE JURY COULD HAVE DOUBTED WHETHER THEY HAD TO FIND THAT THE DEFENDANT
KNOWINGLY OR PURPOSELY SIMULATED THE POSSESSION OF A WEAPON (Not raised below).
POINT II:
THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
In addition, defendant filed a supplemental pro se brief in which he raised the following points:
POINT I:
THE TRIAL COURT ERRONEOUSLY CONVICTED DEFENDANT OF FIRST DEGREE ROBBERY BASED ON THE SUBJECTIVE REACTION OF A CLAIMANT AFTER THE FACT - NOT THE VICTIM - WHICH IS CONTRARY TO LAW.
POINT II:
THE TRIAL COURT ERRED IN THE VERDICT SHEET AND JURY INSTRUCTION WHEN CONFLATING ISSUES OF FLIGHT, ROBBERY, WITNESS [AND] VICTIM, TO PERMIT THE ELEVATION OF THE DEGREE OF THE OFFENSE, WITHOUT SPECIFICITY BY THE JURY, AND AGAINST THE STRICT WORDING OF THE STATUTE.
POINT III:
THE RE-INSTRUCTION GIVEN TO THE JURY AFTER THEIR START OF DELIBERATIONS REGARDING "UNANIMITY", WHICH WAS REQUIRED FOR THE INTEROGATORY "1A" ON THE VERDICT SHEET, WAS INSUFFICIENT AND DEFECTIVE, REQUIRING REVERSAL OF THE CONVICTION.
POINT IV:
THE STATE'S CHANGING OF THE THEORY OF [ITS] CASE, BY WAY OF DISMISSAL OF OTHER SEPARATE OFFENSES/COUNTS IN ORDER TO ELEVATE THE "THEFT" CONSTITUTED A VIOLATION OF LAW AND DUE PROCESS.
POINT V:
THE TRIAL COURT'S FAILURE TO CHARGE AND INSTRUCT THE LESSER OFFENSE OF SIMPLE "THEFT
- [N.J.S.A.] 2C:20-2" WAS ERROR AND VIOLATED APPELLANT'S RIGHTS.
POINT VI:
DUE TO THE APPELLANT'S OBVIOUS COGNITIVE DEFICIT, A PSYCHOLOGICAL DEFENSE SHOULD HAVE BEEN INTERPOSED AND VIGOROUSLY PURSUED - ALSO, THE APPELLANT'S MENTAL STATE AT THE TIME DEPRIVED HIM OF THE ABILITY TO KNOWINGLY [AND] INTELLIGENTLY REJECT A PLEA BARGAIN AND ASSIST IN HIS DEFENSE IN TOTO; IT SHOULD HAVE ALSO BEEN USED AS A MITIGATING FACTOR.
POINT VIII:
THE CUMULATIVE EFFECT OF ERRORS IN THIS CASE REQUIRES THAT THE COURT REVERSE THE CONVICTION AND [REMAND THE MATTER] FOR [A NEW] TRIAL.
We affirmed defendant's conviction and sentence. State v. Lowman, No. A-6068-05 (App. Div. July 17, 2008) (Slip op at 19). We declined, however, to consider the arguments raised by defendant in Point VI of his pro se supplemental brief because it appeared that he was asserting claims of ineffective assistance of counsel, and the trial record did not provide a basis to consider those claims. Id. (Slip op. at 19).
Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Lowman, 196 N.J. 599 (2008).
On January 23, 2009, defendant filed a pro se PCR petition in the Law Division. He claimed that he was denied the effective assistance of trial counsel. Defendant alleged that his attorney only met with him twice prior to his trial, did not discuss "procedure" with him, and never presented him with a "coherent defense plan[.]" Defendant stated that he tried to discuss the case with his attorney but his attorney told him "not to worry" and he "would take care of it." Defendant also stated that, while his attorney provided him with copies of the discovery materials, he did not review or discuss that information or the case with him.
Defendant additionally alleged that his attorney told him not to testify at trial even though he wanted to explain his "side" of how he was "arrested and charged." In addition, defendant claimed he told his attorney he has "heard voices in his head" since 1989, when he suffered a head injury in an auto accident. Defendant asserted that the "voices continue up to the present day." He alleged his attorney "never did anything about it."
Defendant further alleged that his attorney "should have arranged for a mental health evaluation to investigate and determine whether or not [he] was able to comprehend what [he] was charged with and whether or not [he] was capable of entering a plea of any kind." He also alleged his appellate attorney was deficient because "she did not have sufficient contact with [him] to make use of [his] knowledge of [the] case."
The court assigned counsel to represent defendant and conducted an evidentiary hearing on the petition, at which defendant and his trial attorney testified. Thereafter, the judge placed his decision on the record. The judge concluded that defendant had not been denied the effective assistance of trial or appellate counsel.
The judge noted that he had presided at defendant's trial. The judge pointed out that, as indicated in the trial transcript, he had advised defendant of his right, and told him that he had an absolute right to testify or not to testify. Defendant chose not to testify. The judge found that the record indicated that defendant's decision not to testify was voluntary and not "the result of any mental condition that may have kept [defendant] from functioning and knowing and understanding what was going on."
The judge also found that the record did not support defendant's claim that his trial attorney was ineffective. The judge noted that, based on the testimony presented at the PCR hearing, he was satisfied that defendant never told his attorney that he was "hearing voices." The judge stated that defense counsel had testified that defendant's mother never brought this information to his attention.
The judge added that, even if he was wrong in his assessment of the testimony, he was satisfied that defendant had not shown that the result of the trial would have been different if this information had been brought to counsel's attention. The judge stated that, in light of defendant's mental health evaluations, which raised an issue of "malingering," a jury would not have been convinced that defendant was not guilty by reason of insanity.
The judge stated:
It would seem to me that the State would have very little difficulty in establishing beyond a reasonable doubt that [defendant] was not, in fact, insane at the time.
I sat through the trial. I remember the trial testimony. I remember how the witness, who [defendant] now indicates was [a member of the Bloods gang], was sitting in a pizza joint[,] looking out the window, watching a lady attempting to get on the bus when this defendant snatched her purse, ran, and how he chased her, the defendant.
I remember at trial that the victim of this robbery in fact testified and indicated that she was not at all hesitant in identifying [defendant] as, in fact, the person who committed the offenses that were charged and for which he was convicted.
I also will note for the record that, though some time ago, I absolutely have no recollection of any odd, bizarre, or even slightly off behavior by [defendant] during the course of the trial that would indicate to this [c]ourt that [defendant] was
suffering from any mental difficulties or hearing voices.
So, I am satisfied that, one, that Mr. Barry's recollection is more accurate as to what happened during trial.
I'm satisfied that [defendant] did not, in fact, indicate to him that he was hearing voices. I'm satisfied that even if he had, there is nothing to indicate that [defendant] would have been successful in any defense given [the] matters [as to] which I have indicated.
. . .
I see nothing else in the transcripts, in the briefs that were filed, or the opinion with regard to the Appellate Division that would, in fact, indicate to me that appellate counsel was in any way ineffective.
The PCR court entered an order dated October 13, 2010, denying defendant's petition. This appeal followed.
Defendant raises the following issues for our consideration:
The Court should reverse the denial of defendant's petition for post-conviction relief.
1. Defendant established ineffective assistance of counsel.
A. Failure to assess, prepare, and discuss with defendant strategy for defense of the State's charges before the jury
B. Failure to sufficiently counsel defendant regarding his right to choose whether to testify on his own behalf at trial
C. Failure to sufficiently investigate, assess, and present mens rea defenses to the charge against defendant
D. Ineffective assistance of appellate counsel
2. At the very least, [the court should] remand for further consideration and additional evidentiary hearing is warranted.
We have considered these contentions in light of the record and the applicable law. We conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.
Defendant's claim that he was denied the effective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this test for evaluating ineffective-assistance-of-counsel claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant argues that his trial attorney erred by failing to assess, prepare and discuss the case and his defense strategy with him. At the PCR hearing, defense counsel testified that he generally conducts a video conference with a defendant upon his arrest, and usually has inter-personal meetings with his client prior to court hearings and conferences.
Defense counsel further testified that he was confident that he met with defendant more than two times. He also stated that his practice is always to provide and review discovery and discuss trial strategy with his clients before the trial begins. The record thus supports the PCR court's determination that defense counsel capably assessed, prepared and discussed the case and his defense strategy with defendant.
Defendant further argues that his trial attorney erred because he failed to advise him sufficiently regarding his right to testify or not to testify at trial. Defendant maintains that his attorney told him not to testify. At the PCR hearing, however, defense counsel testified that it was his practice to advise clients whether they should testify or not, and the decision whether to do so was the client's decision.
Moreover, the trial judge had advised defendant of his right to testify or not, and also told defendant that the decision was his and his alone. Defendant chose not to testify. Thus, the record fully supports the PCR court's determination that defendant was counseled sufficiently regarding the exercise of his right to testify and his decision not to testify was voluntary.
Defendant additionally argues that his trial attorney was deficient because he failed to investigate, assess or present a defense based on his alleged mental infirmities. Defendant claimed that he was "hearing voices" but defense counsel testified that neither defendant nor his mother brought this information to his attention.
Counsel also stated that defendant never exhibited any signs of mental illness or diminished capacity while he was representing him. Furthermore, as the PCR court determined, defendant has not shown that the result here would probably have been different if defendant had brought his alleged mental infirmities to counsel's attention, and counsel had raised a claim of diminished capacity.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION