Opinion
DOCKET NO. A-2023-13T1
06-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BINH THACH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, and Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 04-09-3565. Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, and Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Binh Thach appeals from the dismissal of his petition for post-conviction relief (PCR) following an evidentiary hearing. He contends his plea counsel was constitutionally deficient by failing to discover readily available medical records suggesting defendant suffered from a serious mental condition at the time he committed his crimes and by failing to secure a competency evaluation before counseling him to plead guilty to reduced charges. He also claims his counsel was ineffective for failing to assert an insanity defense. Because we conclude the Law Division 1) failed to account for objective medical evidence of defendant's significant brain damage and relate that to its analysis of whether counsel was ineffective for failing to uncover defendant's medical records and to have a competency evaluation performed, and 2) failed to explain its acceptance of the State's expert's opinion that defendant was competent to stand trial as of the expert's evaluation in 2011, contrary to the court's own 2011 finding that defendant was incompetent and unfit to proceed on his PCR petition, we vacate denial of the petition and remand for a new hearing.
I.
Defendant shot and killed two people and wounded a third in Camden in 2003. All four were acquainted as they lived in the same rooming house on Cramer Street. The victims were all Vietnamese. Defendant is Cambodian, although he was born and raised in Vietnam. Defendant had been in the United States for four years and had lived at the Cramer Street rooming house, the address of which he could not remember after the shooting, for four months. He was not employed and had been collecting welfare for two years. He turned himself into the police the day after the murders and made a full confession, waiving his right to counsel. Because police interviewed him before taking his statement, what we know of that confession is defendant's largely one-word answers to leading questions posed by the interviewer. As the confession and defendant's mental state at the time he gave it are key facets of the present appeal, we discuss them at some length.
Through an interpreter, defendant agreed with the interviewer that defendant claimed Tam Nguyen, the man who lived in the room next to his in the basement of the rooming house, stabbed him "on the butt" with a folding knife two weeks before. He agreed that Tam and another man who lived upstairs, Son Do, and two other men defendant did not know were drinking in the rooming house that night. He further agreed that, although asked, he did not join them because he was sick. He agreed he passed by the group a few times "and Son from Atlantic City tickled you and you both laughed, correct?" The interviewer asked, "Is it true, on the final pass, Tam stabbed you?" Defendant replied, "Yes, Son tickled me in the front and Tam from the back . . . stabbed me."
Defendant agreed he did not confront Tam or ask why Tam stabbed him, but instead walked back to his room. The interviewer then asked whether it was correct that defendant had a theory as to why Tam stabbed him, which was that Tam didn't like him because Tam knew the man responsible for breaking defendant's arm the year before. Defendant agreed with that statement and added: "Yes, I think that those men broke my arm so that I would have a reason to crack their heads, so they would have a reason to make me pay restitution. But, if they stabbed me and I didn't fight back, that makes me a coward."
Turning to the night before the murders, defendant agreed with the interviewer that there was a party going on at the rooming house, when at about 10:00 p.m. Tam cursed at him saying "Fuck your mother. I'm going to beat you until you die." Defendant agreed he cursed back and was attacked by Tam, Son and two other men who lived in the house. He also agreed that the men "twisted [his] head" until he couldn't breathe and only stopped when Tam's girlfriend and two other women who lived at the house yelled at them to stop. Tam continued to curse at defendant, however, and the four men soon fell to beating him again. Defendant agreed that the men again twisted his neck until he couldn't breathe and only stopped when the three women again intervened. Defendant agreed he then went to bed.
The interviewer then asked whether it was correct defendant was sitting on his bed smoking a cigarette the next morning around 7:00 a.m. when he saw Tam leave his room and go upstairs to the bathroom. Defendant agreed and also agreed that when Tam returned downstairs, he ran into defendant's room and attacked defendant again. Defendant confirmed he was trying to defend himself when Tam, for what reason defendant did not know, suddenly ran out of the room and up the stairs. Defendant agreed that was when he returned to his bed and retrieved a revolver from under the mattress.
Defendant confirmed he shot Tam on the staircase, and chased him upstairs into the kitchen where he shot him two or three times at close range. He agreed with the interviewer that he then saw Tam's girlfriend start up the stairs from the basement and then turn and run back into the room she shared with Tam. He also agreed he fired once at Son who had run into the kitchen from his room upstairs. When the interviewer asked whether defendant also pointed the gun at another occupant, Cho, but did not fire, defendant replied, "Because he ran to a room, I could not shoot him." Defendant also agreed that when defendant turned back to Tam, who was still alive, defendant reloaded his gun with the one bullet he had left and shot him again at very close range. Finally, defendant agreed with the interviewer that defendant never shot at Tam's girlfriend or any of the other women in the house because the women had helped him. When another officer asked if defendant's anger was the result of Tam beating and stabbing him two weeks prior, defendant answered, "That person did it intentionally."
In a statement to the police, the surviving victim, Tam's girlfriend, gave a different account of the hours before the shootings. She claimed there was no party, only the housemates sharing dinner in the kitchen when defendant came home drunk and tried to put Tam into a headlock. Son pulled defendant off Tam, and the victim and another woman led him downstairs to his room. The victim reported, "[h]e mumbling and yelling he mumbling, he mumbling a lot." When asked whether she could hear what defendant was mumbling, she replied, "I gonna kill you that next day." She reported defendant was still mumbling to himself when she and Tam went to bed sometime later.
Two other women in the house confirmed the victim's account. Son's girlfriend said she came downstairs to shouting in the kitchen and saw defendant and Tam fighting and defendant saying "if Tam doesn't leave tonight, in the morning [defendant] would kill Tam." Another woman living in the house only heard that defendant and Tam were fighting. She then went downstairs to tell defendant to go to sleep. Neither woman appears to have been in the house at the time of the shootings.
The victim claimed Tam went out as usual at 7:00 a.m. to get coffee but did not return with it. When she heard Tam screaming from the kitchen, she left their room and looked up the stairs where she saw defendant in the kitchen standing next to the stove. Defendant said nothing but simply pointed the gun and shot her, hitting her in the left side of her chest. She staggered back into her room and called the police.
Defendant was initially charged with two counts of first-degree murder as well as attempted murder. The prosecutor subsequently downgraded those charges, and, after waiving indictment, defendant entered a negotiated guilty plea to two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). Judge Linda Baxter took the plea and sentenced him on the manslaughter counts to concurrent thirty-year prison terms 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, and to a consecutive eight-year NERA term on the aggravated assault.
Judge Baxter did not hear defendant's PCR petition.
Defendant did not file a direct appeal. He filed a PCR petition in 2008. Counsel was appointed and, a year later, after obtaining defendant's medical records, filed an amended petition alleging defendant was denied the effective assistance of counsel by his plea counsel's failure to raise defendant's competency to stand trial and to investigate and assert defenses of insanity, diminished capacity and self-defense.
II.
This PCR matter has an unfortunately protracted history. It has been handled by two different prosecutors and three different judges over the course of five years. Although we do not fault anyone for that, we conclude the fragmented approach greatly contributed to the problems we find in the disposition before us.
After assigned PCR counsel obtained defendant's medical records and filed the amended petition, the first PCR judge heard argument and granted defendant an evidentiary hearing in January 2010. In April 2010, a second judge presided over the first day of a two-day evidentiary hearing at which trial counsel and an investigator from the public defender's office were scheduled to testify. Following the direct examination of defendant's plea counsel, the hearing was adjourned without date to allow the defense to secure an expert report. Two months later, in June, the parties agreed that plaintiff would undergo an MRI (magnetic resonance imaging) of his brain.
In November, defendant's MRI was reviewed by Reuben C. Gur, Ph.D., Professor of Psychology in Psychiatry, Neurology and Radiology, at the University of Pennsylvania School of Medicine. Dr. Gur, who deliberately avoided acquiring any knowledge of the facts of the case, issued a report concluding that "[s]tructural imaging of [defendant's] brain shows extensive brain damage." In his report, Dr. Gur detailed the damage he saw to specific structures in defendant's brain and their likely repercussions for his functioning and behavior.
Specifically, Dr. Gur identified structural abnormalities in the frontal regions of defendant's brain which "interfere with executive functions such as abstraction and mental flexibility, planning, moral judgment, and emotional regulation, moderating limbic arousal and impulse control." He also noted "severe abnormalities in the corpus callosum and lateral ventricles." He explained that "[d]amage to the corpus callosum would lead to deficits in integrating verbal reasoning and analytic processing modes of the left hemisphere with intuitive, integrative and affect-related processing modes of the right hemisphere."
The large ventricles Dr. Gur observed in defendant's brain were, in his opinion, "an indication of overall tissue loss throughout the brain, as dystrophic or atrophic cells are replaced by cerebrospinal fluid (CSF). These deficits, taken together, are typical of Schizophrenia," which he defined as "a disorder characterized by symptoms such as visual and auditory hallucinations, disorganized speech and behavior, blunted emotional expression, lack of motivation, and social and occupational dysfunction." Because the volume loss in defendant's brain appeared "more heavily focused on the right side," Dr. Gur surmised the "deficits could be attributable to Schizophrenia, but most likely reflect additional damage such as can be caused by a head injury."
Dr. Gur also noted damage to defendant's "parietal lobe, in particular the precuneus," which he identified as "involved with higher order processing of visual information and integrative behavior, i.e., connecting what one sees with what one does." He opined that damage to that structure "can cause dissociation, a process wherein an individual is aware of what he is doing but feels as though he is observing himself from a distance without the capacity to decide and act upon what he is observing."
The doctor also identified "pronounced tissue loss" in defendant's right temporal lobe, which "plays a critical role in remembering objects and faces." Dr. Gur wrote that "[i]ndividuals with damage to this area of the brain may not be able to recall or accurately perceive faces," leading to "misperceptions or delusions about observed actions and behaviors that are based upon these erroneous memories."
Dr. Gur described the aspect of defendant's brain he found most striking to be tissue loss in the amygdala and the cortical regions. He stated the right side of defendant's amygdala was four and a half standard deviations smaller than normal, and opined that abnormally low volume in that area of the brain "would lead to severe emotional deregulation." He opined that the combined effects of these problems could be the appearance of someone who would present as "very cool and seem to have no emotions but then burst into a violent rage seemingly without provocation. Because [defendant's] amygdala is so small, it would take much less threat to stimulate it than a normal person, resulting in an overabundance of fear and an impulse to attack."
A month after Dr. Gur issued his report, the public defender's office arranged to have defendant evaluated by a forensic psychologist, Dr. Mark Siegert. Working through an interpreter, Dr. Siegert interviewed defendant and obtained a history the doctor described as "consistent with [defendant's] records."
Those records reveal defendant obtained a fifth grade education in Vietnam, after which he left school to work in the rice fields. Defendant was assaulted on various occasions in Vietnam and hospitalized there several times for psychiatric problems. He was inducted into the army and sent to Cambodia, where he deserted because he did not want to fight the Cambodians whose heritage he shared. He was imprisoned in Vietnam and escaped to a refugee camp in Thailand where his mental condition worsened. He returned to Vietnam where he was again hospitalized for psychiatric problems. He emigrated to the United States in 1998.
Dr. Siegert issued a report based on his review of defendant's history, his interview of defendant and Dr. Gur's findings. Dr. Siegert wrote that "[t]he most striking feature of this evaluation was evident from the start; [defendant] often misunderstood what was said or asked," notwithstanding the interpreter's assessment that there was no language barrier as defendant had "a good grasp of Vietnamese." Dr. Siegert observed that in addition defendant
often responded in a manner that was related to some of the words or concepts used in various questions or topic[s], and because he was answering about a related matter, I
often was under the impression that he understood what I was asking but upon careful questioning, I learned that he frequently did not.
Although oriented in all three spheres, defendant told the doctor he "frequently dreams of people beating him, stabbing him[,] and he has awakened finding himself hitting the wall. He stated that he still feels a clawing in his head as animals try to escape." The doctor opined defendant "showed an ongoing delusion stating that doctors at Cooper Hospital wanted to cut his head open to remove the animals and [defendant] said, 'I don't want it. I don't want to die. But I hear them crawling.'" Based on defendant's history, Dr. Gur's report of the significant areas of damage to defendant's brain and his own evaluation, Dr. Siegert concluded defendant was not competent to waive his Miranda rights the day he confessed to the police in 2003, was not competent to participate in plea negotiations in the fall of 2004, and was not competent to assist in the prosecution of his PCR petition. Dr. Siegert also concluded defendant was insane at the time of the murders.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Following defendant's service of the doctors' reports, the second PCR judge reconvened the evidentiary hearing to hear additional testimony of defendant's plea counsel and the testimony of his investigator. There is no dispute that plea counsel was a very experienced public defender and had represented several defendants in capital cases asserting mental health defenses. Counsel testified he was aware defendant was taking psychotropic medications when he represented defendant and knew of defendant's mental health history because he had been able to secure defendant's records from Vietnam.
Plea counsel and his investigator both testified that although counsel believed defendant was competent, he did have concerns about defendant's mental health history and defendant's report of severe headaches and tried, unsuccessfully, to find a forensic psychologist or psychiatrist who spoke Vietnamese or Cambodian who could evaluate him. Counsel testified that defendant told him he sometimes felt as if there were "animals running around" in his head. Counsel, however, "didn't think that showed evidence of a delusion" but instead was simply "a very colorful, clear way" of describing how he felt "that people could understand."
Plea counsel and the investigator testified that defendant could not provide them the names of doctors who had treated him. The investigator, however, used contacts within the Vietnamese community to locate some limited health records. Counsel admitted on cross-examination that defendant had relayed he had been assaulted by a man with a baseball bat the year before the murders and had been treated at Cooper Hospital for a broken arm. Although in possession of signed authorizations that would have allowed his investigator to obtain defendant's treatment records from Cooper, counsel did not direct her to ask the hospital for the records "because [he] just thought, oh, a broken arm really isn't relevant on a mental health defense." In his confession to the police, however, defendant linked the man who assaulted him with the baseball bat to Tam, the victim he claimed had poked him with a knife, twisted his neck and beaten him.
Because the defense team did not ask Cooper for defendant's records, plea counsel did not learn that in the weeks before the shooting, defendant went several times to the hospital complaining of "viruses in his head which bothered him at night by making a lot of noise." Defendant reportedly told a psychiatrist a month before the shooting "that the viruses only stay in one part of his brain and mainly disturb him because of the noise they make in trying to escape that one area." Two weeks later, defendant went back to the hospital complaining of a "headache because animals are crawling around his head." Defendant on that occasion asked the doctor to "do an operation to take off his head." He was diagnosed as suffering from chronic psychosis with delusional disorder and discharged on anti-psychotic medication.
Less than ten days later, defendant was back at Cooper complaining of "bugs in [his] head." In the last of the records six days before the shooting, defendant appeared at a doctor's office and demanded an antibiotic and other drugs. The physician wrote of the visit, "he started screaming and banging [on the] window that he has Medicaid and I am supposed to give him whatever medicine he needs." The note continued: "Patient started using foul language and threatening the staff . . . . He kept screaming for a few more minutes and then left. We will call police if this happens again." Also included in the Cooper records was an MRI of defendant's brain taken in 2001 noting abnormal findings.
When confronted with the Cooper records on cross-examination, and asked if he had seen those records and the 2001 MRI would he have had defendant evaluated, plea counsel answered:
Absolutely. Especially with what you pointed out in your series of questions about the incidents within a month of the shooting and the several trips to Cooper Hospital showing that he looked like he might have been spiraling out of control. That combined information, none of which we
had, would have definitely had me pursuing an independent evaluation.Plea counsel stressed, however, that he was not aware of defendant's treatment in the weeks before the murders and that the facts he had, "even [defendant's] history of mental illness in Vietnam, was not in any way linked to what happened." Plea counsel explained:
None of the witnesses said that he was talking to himself or acting in very bizarre ways, you know, and he always told things as how he was tormented and picked on and maybe bullied you might say, and the outcast, so it looked to me like he just had his limit of being tormented and he exploded and reacted to it. He was tired of being the butt of these jokes and tormented.The prosecutor on re-direct asked plea counsel why, when he was unable to find someone fluent in Vietnamese or Cambodian to evaluate defendant, had he given up on having defendant evaluated instead of employing an interpreter. Counsel responded:
That's a very good question and I believe the answer is probably, because I don't have a full recollection of my thought processes, but the best I could surmise is that the prosecutor was finally coming around to some realistic numbers in a case that I felt I had no defense, that they had a potential double life sentence plus twenty years facing him and hypothetically, it could have even been a death penalty case at the time, because a murder in the course of another murder is automatically qualifying for a death penalty.
And there was evidence to suggest it was premeditated, so I didn't rule that out as a possibility, and so, when they finally started talking about possibly concurrent sentences with aggravated manslaughter and reducing the attempted murder to aggravated assault, I thought that the information I had gotten from Vietnam, suggesting this background and history, was enough to have the prosecutor, perhaps, have some empathy for the situation and to get into what I consider an appropriate range, because if I had gotten the evaluation without — I would have . . . done it more just to sort of be prophylactic to protect myself, but not with any real hope, it would have developed into anything.
After defense counsel and his investigator testified, the State submitted the report of its forensic psychiatrist, Dr. Pogos H. Voskanian. Dr. Voskanian reviewed defendant's medical records, with the exception of the 2010 MRI and Dr. Gur's interpretation of it, and interviewed defendant at length. Defendant told Dr. Voskanian he did not actually "like Vietnamese, not really . . . because Vietnamese killed a lot of Khmer Krom people and took the land." The doctor concluded that "[t]he centuries old ethnic conflict between Vietnam and Cambodia appears to play a substantial role in [defendant's] psychological development and perceptions."
Dr. Voskanian determined defendant "overemphasiz[ed] that he is mentally ill," and he found no indication that defendant had any "impaired ability or capacity to learn, understand, integrate and rationally manipulate learned information." The doctor acknowledged that review of the 2001 MRI interpretation "portrayed a picture of a completely impaired individual," but found "clinically, during an extended interview, [defendant's] presentation was remarkably in contrast of what one would expect by reading the MRI report."
Although noting that defendant "expresses himself in an idiosyncratic manner and his expressions are colored by ethnic expressions," the doctor concluded that defendant's commission of the offenses "was not the result of his diagnosis of mental illness or schizophrenia. [Defendant] clearly denies any delusional motives or symptoms of thought disturbance except for anger and, as per his ethnic beliefs, catching a bad spirit." Dr. Voskanian found defendant competent to stand trial at the time of his guilty plea in 2003, and that he "is competent to stand trial at the current time and . . . does not meet criteria for [an] insanity defense or diminished capacity."
Following the submission of the expert reports, the second PCR judge concluded it would be necessary to determine whether defendant was competent to proceed on his PCR petition. The matter was transferred to the third PCR judge who, in November 2011, conducted a competency hearing and assigned the State the burden of proving by a preponderance of the evidence that defendant was currently competent.
After counsel and the court questioned defendant on the record and counsel made their arguments, the court on November 28, 2011 determined defendant was not competent to proceed on his petition. In making its determination, the court referenced Dr. Gur's interpretation of defendant's 2010 MRI and relied on the findings of Dr. Siegert and Dr. Voskanian "that the defendant had a severe mental disorder, including brain damage." In weighing the opinions of both parties' experts, the court determined "that the conclusions reached by the defendant's experts are more credible" in light of the testimony given by defendant at the hearing. Although noting that defendant demonstrated "a pretty fair understanding" of the roles of a prosecutor, defense lawyer and the court in a criminal proceeding, the judge found he lacked "the ability to participate . . . in an adequate presentation of his case."
Specifically, the court noted in its November 28, 2011 opinion that it
allowed counsel some latitude in asking questions about the ultimate determination that has to be made if [the court] conclude[s] that the defendant is competent, and that is, does he want to keep the plea deal that he already made, resulting in the 38-year sentence, or does he want to take a chance in pursuing a request for ultimately
a new trial, where if he's convicted, he could be facing a much more substantial sentence.
He was asked that every which way, and he couldn't — he never seemed to be able to grasp what that was all about, and what decision he'd be called upon to make strategically with his attorney, in terms of proceeding or not, with this post-conviction relief application.
The court noted its cognizance
of the fact that it may be, in some cases, that a person, if he's explained the sometimes complicated court proceedings, can be made to understand them, and then participate competently with counsel for the purposes of preparing a defense, or in this case, preparing a PCR application, and preparing for the proceeding.
However, in considering the repeated questions to this effect by [defense counsel], and by [the court], I have grave doubts as to whether he can ever tell [defense counsel] how he wants to proceed, or really understands what's at stake here, in terms of whether he should proceed in this challenge to this whole case, and the whole result of the guilty plea process, or whether he should keep the deal he has now as being in his best interests. And I don't think that if [defense counsel] is to meet with him and explain it again and again, that that's going to change.
So, that really gets to the ultimate final prong of this whole standard, which is whether he has the ability to participate in an adequate presentation of his case. I'm not satisfied he does. And I'm left to conclude, based on that, that he's not competent now to proceed on his own with this PCR application.
In June 2012, the court appointed a guardian ad litem (GAL) for defendant and charged the GAL with determining, in the first instance, whether it was in defendant's best interest to proceed on his petition. Although acknowledging that defendant's plea agreement resulted in a substantial sentence, namely, an aggregate thirty-eight-year NERA term, of which defendant had already served nine years, the judge noted in a letter to the GAL that the original charges would expose defendant to two consecutive life sentences and to an additional consecutive term of twenty years in State prison. Accordingly, the judge charged the GAL with consulting with defendant's counsel to determine whether it was in defendant's best interest to proceed on the PCR application.
The GAL issued a report to the court and counsel in September 2012 in which he concluded that defendant had a viable PCR claim, that one of defendant's objectives was to be transferred from State prison to a hospital for treatment, that defendant's medical records both before and after the shooting contain credible objective evidence that he suffers from brain damage, and that defendant's return to competency was highly unlikely. He also concluded that in the event defendant was successful on his petition he would likely be found not competent to stand trial to face the original charges but instead, because he was a danger to himself or others, be transferred to a hospital for treatment. In light of those considerations, the GAL determined it was in defendant's best interest to proceed on his PCR petition.
In May 2013, the third PCR judge conducted another hearing at which the State presented its expert, Dr. Voskanian. Dr. Voskanian testified on direct in accordance with his report that defendant was not insane or of diminished capacity when he committed his crimes, that he was competent to stand trial when he entered his plea and was equally competent to stand trial at the time the doctor interviewed him in 2011. Asked by the prosecutor whether a person with mental illness can still understand external reality, the doctor responded:
Yes. Actually it's a good question. Yes, I do agree [defendant] has mental conditions. I do know he's got abnormal MRI. I do know at some point he was diagnosed with schizophrenia. He was diagnosed with [a] variety of mental disorders. I do know he had a hard life. He had depression, post-traumatic stress disorder diagnosis, considerable hardships in his life. However, that's one thing. On the other hand with all of his conditions he had a clear understanding of what was going on and he committed his crimes with clear understanding of what he was doing. He justifies his offenses by the fact that he was assaulted first and that's a factor for him, that he was made angry by other men. They insulted him by poking with a knife on his buttocks. They cursed him and cursing mother in his culture it's significant
assault, verbal assault and therefore he shot them. Simple.
Defense counsel established on cross-examination that Dr. Voskanian had not reviewed the 2010 MRI of defendant's brain, nor Dr. Gur's interpretation of it and had not looked at Dr. Siegert's report. When defense counsel asked the doctor to assume Dr. Gur found defendant suffered from extensive brain damage and Dr. Siegert deemed him incompetent, in considering whether defendant "has the ability to weigh the import and significance of the reports of those two doctors and is capable of deciding whether to proceed ahead with a trial," the doctor responded by saying that "was not the purpose of my interview. The purpose of my interview was competency to stand trial. You are going a few steps forward regarding his competency." When defense counsel pressed for an answer, Dr. Voskanian replied "I can answer the question that he's competent to stand trial and he understands the consequences. He does understand what he's facing."
Defendant's PCR counsel did not present live testimony from his experts, but instead relied, without objection, on their reports. After obtaining the permission of the parties to review and rely on the transcripts of the testimonial hearings presided over by the second PCR judge, the third PCR judge issued a written opinion on August 13, 2013 denying the petition.
Relying on what he termed the credible testimony of plea counsel, the judge found counsel
reasonably concluded that despite evidence of the Defendant's headaches and anxiety, including a sensation of "animals in his head," such evidence was not sufficient to negate the state of mind for the shootings in this case given the facts as discussed above. Instead, all evidence suggested that these shootings were part of a calculated plan to retaliate against the people who were harming and harassing the Defendant. (Similarly, [defense counsel] reasonably concluded that there was no basis for the defense of self-defense, given that the Defendant, while armed with a handgun, pursued unarmed victims, chasing one up the steps, and shooting him after he had fallen to the ground. This conclusion was likewise reasonable and not deficient.)
The judge likewise found plea counsel's decision to forego a mental health evaluation of defendant not deficient. The judge emphasized that
this is not a case where [plea counsel] ever made a determination that a competency evaluation was in fact required. . . . In the end, although [plea counsel] was not able to remember fully why he did not pursue any further the matter of obtaining a mental health evaluation of the Defendant, it appears that he ultimately was satisfied that no mental health defense had any viability, including the matter of competency.
The judge also rejected defendant's claim that plea counsel was deficient for failing to discover the medical records reflecting defendant's mental health history in the weeks before the shootings. Relying on Dr. Voskanian's report, the judge wrote:
[E]ven considering the later-obtained Cooper records and other medical evidence, under the totality of circumstances, it does not appear that [defendant's] mental illness was the cause of his actions. That is to say, the Cooper records simply confirm what was already known about the Defendant — that he suffered from mental illness. However, none of the medical records now available, including those obtained and reviewed by [plea counsel] at the time of the plea, and those since acquired, supply any support for the proposition that the elements of insanity or diminished capacity could be made out, or that the direct observations of [plea counsel] relative to the competency of the Defendant were not valid. In short, the existence of mental illness does not compel the conclusion that a person suffers from insanity, or diminished capacity, as understood legally, nor does it necessarily equate to the legal notion of incompetency to proceed.
Finally, the court concluded that even assuming plea counsel was deficient, defendant could not demonstrate prejudice. The court reviewed the reports by Dr. Siegert and Dr. Voskanian and noted that Dr. Siegert, but not Dr. Voskanian, concluded that defendant did not understand the right to counsel or against self-incrimination, or the role of the jury, and was not competent to engage in plea negotiations, enter a plea or understand the consequences thereof, and was not capable of adequate participation in the presentation of his defense.
In all of those areas, the court found Dr. Voskanian's conclusions more credible than those of Dr. Siegert. The court found with respect to several of the areas of disagreement in which defendant did not express "a clear understanding" of the concept at issue, that "it would appear, given those aspects of the American justice system which the Defendant was able to explain rather articulately, that the Defendant was likewise teachable with respect to those areas that he did not understand."
The court specifically rejected Dr. Siegert's opinion that defendant "'could eventually be taught the factual information about competency standards that he lacks, [but] he cannot adequately process or understand statements or questions well enough to adequately participate in his defense, even after steady dispensing of medication for several years.'" The court found Dr. Siegert's conclusion "is belied by the numerous examples . . . where [defendant] manifests either a clear understanding of the process and of his legal position, or otherwise could have been brought to understand those details he lacks, by way of instruction from the [c]ourt as contemplated by the Moya case."
State v. Moya, 329 N.J. Super. 499 (App. Div.), certif. denied, 165 N.J. 529 (2000).
Because the court determined that plea counsel "reasonably concluded that there was no basis in fact to pursue any question of incompetency relative to the Defendant," and, relying on Dr. Voskanian's report that "there is no reason now to conclude that had the matter been pursued by way of an evaluation and presentation of the issue to the [c]ourt, that the [c]ourt would have concluded that the Defendant was incompetent," the court found defendant had failed to carry his burden on the petition.
III.
Defendant raises the following issues on appeal.
POINT I
THE TRIAL COURT ERRED IN RULING THAT DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO HAVE MR. THACH PSYCHOLOGICALLY EVALUATED TO DETERMINE WHETHER HE WAS COMPETENT TO STAND TRIAL.
POINT II
THE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT RAISING INSANITY AS A DEFENSE.
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). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland standard to a defendant's challenge to his guilty plea based on ineffective assistance of counsel. See Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994).
A defendant asserting ineffective assistance in connection with his plea must establish with "reasonable probability" that "the outcome of the plea process would have been different with competent advice." Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012)); see also State v. Nuñez-Valdéz, 200 N.J. 129, 138-39 (2009). A defendant must make that showing by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
We begin our analysis by noting our agreement with the second PCR judge's decision to convene a competency hearing once doubt arose regarding defendant's competency to proceed on his PCR petition. See State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). We also agree with the third PCR judge's decision to place the burden of proving defendant's competency on the State as would occur under N.J.S.A. 2C:4-4, were the court considering defendant's trial, conviction or sentence instead of an application for post-conviction relief. See State v. McNeil, 405 N.J. Super. 39, 49 (App. Div.), certif. denied, 199 N.J. 130 (2009).
Once the court determined defendant was incompetent to proceed, the appointment of a GAL was appropriate given that success on his petition would mean abandonment of his thirty-eight-year NERA prison term, of which he had already served nine years, and exposure to two consecutive life terms plus a consecutive term of twenty years. Cf. R. 4:26-2(b)(4) (permitting the appointment of a GAL for a mentally incapacitated person in an action on the court's own motion); see also State v. Parker, 212 N.J. 269, 278 (2012) (noting that post-conviction relief proceedings have been characterized as civil in nature for some purposes, citing State v. Loray, 46 N.J. 417, 419 (1966)).
As our Supreme Court has recently reminded, post-conviction relief proceedings are not pro forma exercises, but instead "play a critical role in our criminal justice system" as a "'safeguard to ensure that a defendant was not unjustly convicted.'" Parker, supra, 212 N.J. at 278 (quoting State v. Afanador, 151 N.J. 41, 49 (1997)). A post-conviction relief proceeding presents "a defendant's last chance to raise constitutional error that may have affected the reliability of his or her criminal conviction." State v. Rue, 175 N.J. 1, 18 (2002). Although we are well satisfied that the judges who presided over this complicated PCR matter all grasped the importance of the proceeding and the difficulties it presented, we nevertheless conclude that the final disposition is flawed, based largely, we suspect, on the protracted proceedings, critical parts of which were handled by different judges.
Focusing on the first prong of the Strickland standard, it is undisputed that plea counsel did not uncover readily available medical records that detailed, in his words, "the incidents within a month of the shooting and the several trips to Cooper Hospital showing that [defendant] looked like he might have been spiraling out of control." Counsel testified unequivocally that had he seen those records he would have "absolutely" secured an independent evaluation of defendant's competency.
The trial court did not focus on the implications of that testimony. Instead of addressing what plea counsel testified he would have done had he seen those records in judging his constitutional effectiveness, the court limited its consideration to counsel's actions in the absence of the records. It concluded plea counsel was not ineffective for having failed to have defendant evaluated because "this is not a case where [plea counsel] ever made a determination that a competency evaluation was in fact required." Acknowledging counsel's initial concern about defendant's competency and his corresponding efforts to search for a qualified expert who spoke either Cambodian or Vietnamese to perform an evaluation, the court concluded that "by the time that [plea counsel] was negotiating with the prosecutor and reviewing with the Defendant the plea agreement into which the parties eventually entered, he had satisfied himself that Defendant was competent."
It is, of course, true that counsel's conduct is to be judged on the facts, viewed as of the time of counsel's conduct, State v. Echols, 199 N.J. 344, 358 (2009), in order to avoid the distortions of hindsight, State v. Marshall, 148 N.J. 89, 157 (1997). We, however, cannot fail to consider the ready availability of those records and counsel's unequivocal statement as to what he would have done had he seen them in considering whether he undertook a constitutionally adequate investigation in connection with defendant's plea. --------
Based on plea counsel's testimony, we are not as convinced as the trial court that counsel had so much satisfied himself that defendant was competent, as concluded the prosecutor had made a remarkably good offer in a case counsel believed he had no realistic chance of winning. Without question, plea counsel testified that by the time he was negotiating the plea he would have only arranged an evaluation "more just to sort of be prophylactic to protect myself, but not with any real hope, it would have developed into anything." But he also testified that he "believed the information [he] had gotten from Vietnam, suggesting this background and history, was enough to have the prosecutor, perhaps, have some empathy for the situation and to get into what I consider an appropriate range." When asked why he had given up on having defendant evaluated, plea counsel testified that "the best I could surmise is that the prosecutor was finally coming around to some realistic numbers in a case that I felt I had no defense, that they had a potential double life sentence plus twenty years facing him" and possibly the death penalty.
The record makes clear that plea counsel very effectively used defendant's mental health records acquired from Vietnam to convince the prosecutor that defendant should not face murder and attempted murder charges. He used those same records to convince Judge Baxter that defendant should not receive the maximum sentence on his aggravated assault against the surviving victim. The surviving victim spoke at sentencing of her bewilderment over why defendant had shot "his friends," all of whom had "treat[ed] him really nice." In speaking to the court on behalf of his client, counsel addressed the victim's question by saying defendant "had serious difficulties and serious mental illness in his life [which] offers some explanation as to what in many respects is not easily explainable."
Counsel argued to the court at sentencing that he did not "believe there's any question about [defendant's] mental illness" and referenced the many anti-psychotic medications prescribed for him over the years. As to the shootings themselves, counsel told the court that
[w]hether it's objectively accurate or not, [defendant] viewed himself as somebody who was made an outcast and picked upon. There was an incident that he spoke of in the confession . . . where he was stabbed a couple of weeks before the homicides. And it was apparently not seriously to really injure him, but more to belittle or pick on him.Judge Baxter considered those arguments, took "note of the significant psychiatric records . . . presented" and found mitigating factor four, that there were substantial grounds tending to excuse defendant's conduct, though failing to establish a defense.
And apparently these incidents, coupled with the attack he had in Vietnam, made him hypersensitive to these feelings of alienation and being an outcast and not connecting, not having friends, and he flipped out on the morning [of the shootings].
The record is clear that, even without the medical documents he did not acquire, plea counsel had significant evidence about defendant's history of mental illness and, at least initially, significant concern over defendant's competence. In our view, the question of plea counsel's effectiveness should not have been limited in the PCR disposition to whether counsel earnestly believed his client was competent. The question is whether in light of the information counsel possessed, and the information readily available to him, he sufficiently investigated defendant's condition before counseling him to accept the plea to reduced charges the State offered. As Justice O'Connor wrote for the Supreme Court in Strickland:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.
[466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.]
In order to judge counsel's effectiveness under the first prong of Strickland, the court was required to resolve whether it was a reasonable professional judgment to have advised defendant to plead guilty to charges the prosecutor had substantially reduced based on defendant's history of mental illness without obtaining all known medical records and securing a competency evaluation to discover the existence or extent of that mental illness. Put another way, could counsel have reasonably evaluated the plea offered without securing his client's available medical records or having professional advice regarding the extent of defendant's impairment?
We think that presents a difficult question on this record. Counsel's impression of defendant's mental state developed over the course of his representation, the factor on which the trial court focused, is certainly important. See Purnell, supra, 394 N.J. Super. at 48. But there are other facts that must also be weighed in considering the reasonableness of counsel's actions. See State v. Savage, 120 N.J. 594, 617 (1990) (noting the inquiry under the deficiency prong "is whether counsel's performance was 'reasonable considering all the circumstances'") (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 694).
The existence of medical records indicating long-standing mental illness that was, perhaps, spiraling out of control in the weeks before the shootings, the victim's account of defendant's conduct the night before the shootings, including his mumbling to himself for hours about killing Tam the following day, and the link defendant made in his confession between the man who assaulted him with a baseball bat and Tam should all be considered as well. The inquiry must be made "'applying a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "[W]here 'reasonable professional judgments' support a defense counsel's decision to limit an investigation, the court should not find ineffective performance of counsel." State v. Chew, 179 N.J. 186, 205 (2004) (citations omitted) (quoting Martini, supra, 160 N.J. at 266). Of course, as the Court has noted, "evidence clearly capable of altering the outcome of a verdict that could have been discovered by reasonable diligence at the time of trial would almost certainly point to ineffective assistance of counsel in violation of the Federal and State Constitutions." State v. Ways, 180 N.J. 171, 192 (2004).
Because a defendant must succeed in proving both prongs of the Strickland standard in order to succeed on an ineffective assistance claim, and in light of the difficulties sometimes presented in judging the reasonableness of trial or plea counsel's actions years later and with the benefit of 20/20 hindsight, courts have leeway to choose to examine first whether defendant was prejudiced by counsel's choices, and if not, to dismiss the petition without consideration of whether counsel's conduct was constitutionally deficient. See Gaitan, supra, 209 N.J. at 350. Accordingly, were we satisfied the court correctly determined defendant suffered no prejudice by plea counsel's failure to secure the Cooper records or have defendant evaluated because doing so would not have affected the outcome, we would affirm despite our misgivings about the court's consideration of whether counsel's investigation of defendant's mental condition was constitutionally adequate. We cannot do so, however, because we are convinced the court's analysis of the prejudice prong was also flawed.
When the third PCR judge assumed control of this case, he conducted the competency hearing the second judge determined was necessary. When he did so, he had in hand the evaluations of Drs. Siegert and Voskanian and Dr. Gur's interpretation of defendant's 2010 MRI. At the conclusion of that hearing, after listening to defendant respond to the questions put to him by counsel and the court, the judge concluded "that the conclusions reached by the defendant's experts [that defendant was not competent] are more credible."
When the third PCR judge made his final determination on the petition twenty-one months later, based on exactly the same reports and hearing Dr. Voskanian testify, he came to the opposite conclusion, finding "Dr. Voskanian more credible than Dr. Siegert with respect" to those areas of disagreement in their views as to defendant's competency.
In addition, after hearing defendant testify at the competency hearing, the judge found him unable to grasp that were he successful on his petition he would forfeit a very favorable sentence with the risk he could spend the rest of his life in prison. Moreover, the judge made an explicit finding that he did not believe, were defendant's counsel to meet with defendant "and explain it again and again, that that's going to change." It was on that basis the judge deemed himself "not satisfied" on "the ultimate final prong of this whole [competency] standard," that defendant had "the ability to participate in an adequate presentation of his case."
Twenty-one months later in his opinion dismissing the petition, the judge rejected Dr. Siegert's opinion in large measure based on the judge's conclusion that "it would appear, given those aspects of the American justice system which the Defendant was able to explain rather articulately [to Dr. Voskanian], that the Defendant was likewise teachable with respect to those areas that he did not understand."
Nowhere does the judge explain this 180-degree shift in his thinking or attempt to square his ultimate determination that there was "no reason" to conclude that had plea counsel secured an evaluation that Judge Baxter would have deemed defendant incompetent to stand trial, with his own judgment that defendant was not competent to proceed on his PCR petition. Although we have considered whether the shift could have been based on a deterioration in defendant's mental state between the time he entered his plea and the incompetency hearing, nothing in the court's opinion suggests it relied on any such significant change in defendant's condition.
In addition, the record makes clear that Dr. Voskanian opined that defendant was both competent to stand trial when he entered his plea and competent to proceed on his petition. Dr. Voskanian's conclusion that defendant "understands the consequences" of proceeding on his petition is, of course, directly at odds with the court's conclusion, after reviewing Dr. Voskanian's report, that defendant could not grasp the consequences of proceeding on his petition, was unable to participate in an adequate presentation of his case and thus not competent to proceed on his petition.
The law is well settled that the decision as to a defendant's competence "is for the judge and not for the experts to make." State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). We do not doubt the necessity of expert testimony here, as one would not expect any judge to have sufficient knowledge or experience to assess defendant's competence without the aid of mental health experts. See id. at 549. That is especially true in this case given that all the experts acknowledge defendant's significant brain damage.
The judge was free, of course, to accept the conclusions of the State's expert over those presented by defendant's expert. See Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). The problem here is that the judge did not explain why he abandoned his own earlier assessment of defendant's competency after questioning him on the record in favor of Dr. Voskanian's opinion to the contrary. Although that would be enough to remand for an explanation, there is another flaw not so easily remedied, which we speculate may account for the judge's shift in position.
When the judge determined that defendant was not competent to proceed on his petition, he relied on Dr. Siegert's opinion, which was heavily informed by Dr. Gur's interpretation of defendant's 2010 MRI. Dr. Siegert found the "most striking feature" of his evaluation of defendant was the extent he misunderstood what the doctor was saying or asking, not attributable to any language barrier. Because defendant responded by using words or concepts relating to the topic the doctor was asking about, however, the doctor was often left with the initial impression defendant had understood his questions, only to realize after further probing that defendant had not at all grasped what the doctor was asking about. Dr. Siegert concluded, based on Dr. Gur's interpretation of defendant's MRI, that defendant "has a cognitive processing problem" which rendered him incapable of understanding the proceeding.
After watching defendant respond to questions at the competency hearing and questioning defendant himself, the third PCR judge appears to have observed the same phenomena Dr. Siegert noted. The judge observed that defendant
[a]fter . . . answering responsively a number of these questions, he answered . . . in an unresponsive way relative to the question as to his understanding of the PCR
process, and really why he's here, to be able to repeat it back himself.It was those observations that led the judge to conclude defendant would never grasp "the decision he'd be called upon to make strategically with his attorney" no matter how many times his counsel explained it to him.
He — in response to the question about the PCR, said something to the effect of that he took his medications, he took the handgun to the police station which really wasn't a responsive answer to the question about the PCR.
And after responding appropriately to a number of questions about these proceedings, when he was asked by counsel, or by the Court, to repeat back and put in his own words what he had just responded to, he was unable to do it.
Dr. Voskanian was not oblivious to defendant's odd responses, he merely attributed them to defendant expressing himself in an "idiosyncratic manner . . . colored by ethnic expressions." Critically, however, Dr. Voskanian never reviewed Dr. Gur's report or defendant's 2010 MRI. Dr. Voskanian also never reviewed Dr. Siegert's report detailing how his own understanding of defendant's presentation had been informed by Dr. Gur's findings. Accordingly, Dr. Voskanian was never confronted with whether there was another organic reason for defendant's conduct or expression which the doctor attributed to idiosyncratic manner and cultural differences.
Dr. Voskanian's dismissal of defendant's 2001 MRI as evidencing only congenital abnormality and not brain damage and dismissal of all MRIs as irrelevant to a diagnosis of mental illness without ever reviewing defendant's 2010 MRI or comparing it to the 2001 MRI study renders Dr. Voskanian's conclusions on those points questionable because they do not take into account critical facts in the record. We do not suggest Dr. Voskanian's opinion should have been excluded for his failure to have taken into account what appears to be significant evidence of defendant's severe brain damage, see Townsend v. Pierre, 221 N.J. 36, 53 (2015) (noting an expert's testimony should not be excluded because it fails to account for certain facts in the record if it is otherwise logically supported), but only that the omission required probing to insure the opinion was sustainable in light of other evidence in the record.
We need not resolve here whether the MRIs of defendant's brain are most properly classified as fact or opinion. See James v. Ruiz, 440 N.J. Super. 45, 66 n.15 (App. Div. 2015) (declining to resolve whether a radiologist's findings are most properly classified as "opinions," as "facts or data," or as some combination of the two for purposes of analysis under N.J.R.E. 703 and 808); see also Agha v. Feiner, 198 N.J. 50, 61 (2009) (referring to an MRI as objective medical evidence). We note only that both Dr. Gur's report of defendant's 2010 MRI and Dr. Siegert's report relying on those MRI findings were both admitted without objection, although neither testified. The third PCR judge, while relying on Dr. Gur's report of defendant's significant brain abnormalities in finding he was not competent to proceed on his PCR petition, failed to mention it at all in his opinion dismissing the petition and instead relied on Dr. Voskanian who never reviewed those MRI findings. Given the extent of the damage to defendant's brain reflected in Dr. Gur's report, we cannot find a decision which overlooks it without explanation to be one supported by sufficient credible evidence in the record. See Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 388-89 (2010); see also Trantino v. N.J. State Parole Bd., 166 N.J. 113, 191-93 (2001).
We accordingly vacate the order dismissing defendant's PCR petition and remand for a new evidentiary hearing. Although we have no hesitation in the court relying on the transcribed testimony of defense counsel and his investigator on remand, we urge strongly that the court hear the testimony of all of the experts, including Dr. Gur, following the experts' review of all of the evidence. We are very mindful of the long delay in bringing this matter to a conclusion. Nevertheless, it is apparent to us that the fragmented nature of the proceedings has greatly contributed to the concerns we have identified here.
Thus we direct the court to convene a case management conference within thirty days to establish a schedule for 1) any updated exams and exchange of expert reports the parties or the court deems necessary, and 2) a hearing where it can expeditiously hear the testimony of the experts and thus finally bring this difficult matter to a conclusion. Unless there is objection, the court on remand may continue to presume that defendant lacks capacity to participate in the proceeding and continue to use the services of a GAL.
Vacated and remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION