Opinion
DOCKET NO. A-3280-11T3
09-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEON NELSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price-Furfari, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0179.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price-Furfari, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Leon Nelson appeals from an October 20, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse.
A jury found defendant guilty of second-degree sexual assault as a lesser-included offense of first-degree aggravated assault, N.J.S.A. 2C:14-2(c)(1), and third-degree criminal restraint, N.J.S.A. 2C:13-2. He was acquitted of third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and third-degree burglary, N.J.S.A. 2C:18-2.
On August 12, 2005, defendant, a persistent offender as defined in N.J.S.A. 2C:44-3(a), was sentenced to an extended term of an aggregate twenty years imprisonment subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). On appeal, the convictions were affirmed but the matter remanded pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Nelson, No. A-2110-05 (App. Div. March 27, 2008) (slip op. at 9-10). On May 7, 2008, defendant was resentenced to the same term originally imposed. That sentence was appealed to the excessive sentence oral argument panel and affirmed on February 9, 2010. See R. 2:9-11. On August 16, 2010, defendant filed a pro se petition for PCR, and was assigned counsel.
On March 29, 2005, prior to jury selection in the trial of the matter, defendant's trial attorney, the fourth assigned to him by the Office of the Public Defender (OPD), advised the court on the record that he had twice requested, and been denied, funding with which to retain an expert to evaluate whether certain injuries inflicted during the course of an assault may have affected defendant's mental faculties, thereby enabling him to present the defense of diminished capacity. After the trial judge replied that the dispute was a matter between counsel and the OPD, counsel in the alternative sought to raise a diminished capacity defense supported solely by defendant's medical records substantiating the injuries. The trial judge ruled that the medical records were inadmissible because no timely notice of the defense had been provided to the State. Trial counsel responded: "I must respectfully put on the record that my client [has] been denied effective assistance of counsel by predecessor attorneys who've handled this case, and also by [the OPD], who has not approved my expert request."
At trial, the State presented testimony from the victim, M.T.M., two police officers who had responded to the scene, and the nurse who had examined M.T.M. following the sexual assault. The defense argued that the sexual encounter was consensual, initiated by M.T.M. Defendant testified in his own defense. In summation, counsel also suggested that M.T.M. had a motive to frame defendant, to attempt "to get rid of [him]."
Defendant's principal contention during oral argument before the PCR judge was that he had suffered a traumatic head injury approximately six months prior to the sexual assault which may have diminished his capacity to formulate the requisite statutory intent, and that he should have been afforded the opportunity to explore the defense, present the defense to the jury, or both. From that premise, defendant argued that trial counsel was ineffective due to his failure to properly address the issue.
Additionally, defendant contended that counsel was ineffective by failing to timely notice the State of the potential diminished capacity defense, and by failing to seek a postponement of the trial so that the diminished capacity defense could be properly investigated. Defendant further argued that even if the OPD's denial of funding for an expert was appropriate, the defense of diminished capacity could have been raised, had trial counsel properly noticed the State, based solely on the medical records.
The PCR judge observed that regardless of whether an expert was retained, investigative reports, affidavits, or certifications could have been supplied at any stage to corroborate the claim that post-injury, defendant's behavior changed in some fashion. Rather, the only corroboration was that defendant stuttered after the injury and M.T.M.'s testimony that afterwards defendant "was a little more agitated, a lot more angry[, and] acting very irrational." But a copy of the presentence investigation report (PSI) was introduced, in which defendant reiterated his version of events, i.e. that the sexual conduct was consensual. In the PSI, defendant denied that he was affected mentally or emotionally by the assault. The judge summarized the facts thus:
Defendant was discovered on top of the victim, naked from the waist down, by the police, after a third party caller alerted them to a potential problem.
At the time police entered the room, he was throttling the victim, while sexually assaulting her.
The PCR judge analogized the case to State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999), where the basis for the claim of ineffective assistance was counsel's failure to investigate potential witnesses. As in this case, nothing supported the manner in which additional investigation would have affected the outcome. See id. at 171. And as the judge also observed, the medical records alone do not support the defense. In fact, he noted that even if the records had been admitted, defendant would have had to proffer additional evidence to connect the injury with any purported inability to formulate the requisite intent. He recounted that when interviewed defendant claimed "[i]t's all lies," said the victim accused him because she thought he had been unfaithful to her, and in his pro se PCR petition accused police of coercing the victim into charging him. In sum, the judge determined that defendant failed to establish a prima facie case under either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
On this appeal, defendant argues:
POINT ONE
THE FAILURE OF THE OFFICE OF THE PUBLIC DEFENDER AND THE COURT TO PAY FOR A PSYCHIATRIC EXPERT TO EXAMINE AND TESTIFY FOR DEFENDANT WAS A VIOLATION OF DUE PROCESS AND EQUAL PROTECTION UNDER THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS
POINT TWO
DEFENDANT WAS UNCONSTITUTIONALLY DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
POINT THREE
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL'S INHERENT CONFLICT OF INTEREST, AND THE PER SE PREJUDICE IN SAID REPRESENTATION
POINT FOUR
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN REGARDS TO HIS PETITION FOR POST-CONVICTION RELIEF
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); State v. Preciose, 129 N.J. 451, 460 (1992). In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
An indigent defendant is entitled to counsel as well as other ancillary services as may be necessary to prepare an adequate defense. See State v. DiFrisco, 174 N.J. 195, 243-44 (2002). Funding for experts is required pursuant to the State Constitution and the Public Defender Act, N.J.S.A. 2A:158A-1 to -25. Ibid.; In re Cannady, 126 N.J. 486, 492 (1991). But before such ancillary services are funded, the OPD has "discretionary authority to determine what services and facilities shall be provided to an indigent defendant, [and must] weigh the factors of need and real value to the defense against the financial constraints inherent in the OPD's budget." Cannady, supra, 126 N.J. at 493 (citing N.J.S.A. 2A:158A-5).
Defendant's points on appeal all stem from the claim that the failure of the OPD to fund a psychiatric evaluation violated due process and equal protection. In addition, he asserts his counsel was ineffective at all stages of the proceedings because (1) trial counsel did not earlier notice the court of his intent to pursue a diminished capacity defense; (2) appellate counsel did not raise trial counsel's ineffectiveness; and (3) PCR counsel did not marshal evidence in support of defendant's claim of diminished capacity.
It is undisputed that defendant suffered multiple blows to his head inflicted with a baseball bat, resulting in injuries including a skull fracture. He proffered M.T.M.'s trial testimony that between June and November 2003, after the injury, "[h]e was a little more agitated, a lot more angry, he was acting very irrational." M.T.M. also testified that defendant began to stutter after his injury.
That as a consequence of the assault, defendant developed a stutter is not in dispute. Neither is it disputed that M.T.M. observed a change. As a result, we conclude that defendant established a prima facie case of ineffective assistance of counsel which at least required an evidentiary hearing. See Preciose, supra, 129 N.J. at 462.
In line with established precedent, at such a hearing defendant must at least prove that defense counsel requested funding for an expert evaluation, and was denied the services. In Cannady, supra, 126 N.J. at 497, the Court stated that when the OPD denies an application for ancillary services, "the reasons for doing so must be reduced to writing and a copy of that statement sent to defendant." The intent was to make decisions to grant or deny services subject to review by the trial court. Ibid. A defendant is required to "present a reasonable basis to be permitted a hearing to explore further the possibility of" mental defenses. See State v. Harris, 181 N.J. 391, 528 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). In the absence of any documentation regarding the request for an expert and the alleged denial, judicial review of the OPD's response is not possible so many years after the fact.
The PCR judge observed that defendant was making a "bald assertion" that he could have proffered more to the jury than just the medical records, M.T.M.'s statement, and his stutter in support of the defense of diminished capacity. We will now give him the opportunity to do more. Defendant was severely injured in the assault. But the medical records do not demonstrate anything beyond physical injury, and he must do more than he has to date to connect the injury with a diminished capacity defense. See Cummings, supra, 321 N.J. Super. at 170. Whether he will be able to demonstrate enough we leave to the assessment to be made by the PCR judge after a hearing.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION