A-5419-14T4
N.J. Super. Ct. App. Div.Jul 13, 2017Background
- Terry A. Underwood was convicted of first‑degree murder for stabbing his pregnant wife Theresa; jury found him guilty and he was sentenced to 60 years (with portions later modified on direct appeal).
- At the scene and autopsy: Theresa suffered massive sharp‑force and blunt injuries (dozens of stab wounds; fetus died from intrauterine asphyxia); no weapon found; blood only in bedroom; only a small amount of Theresa's blood on a sock; only a single latent print in the apartment that matched no known person.
- Underwood made several statements to police after long custodial interrogation; certain pre‑noon statements were suppressed, but later post‑noon admissions (including “I did it, I just snapped”) were admitted at trial. Defense emphasized lack of forensic corroboration and fatigue/sleep deprivation when he confessed.
- On PCR, counsel obtained DNA testing of Theresa’s preserved fingernail clippings: 9/10 samples matched Theresa; one mixed sample excluded Underwood and could not exclude fetus/other contributors (statistical rarities reported). PCR counsel also obtained an expert report on effects of sleep deprivation, but no trial‑level testimony had been presented.
- The PCR court denied relief on multiple ineffective‑assistance claims (failure to pursue DNA testing, failure to call a sleep‑deprivation expert, not striking a juror related to the prosecutor, withdrawing a passion/provocation manslaughter request, and exclusion from sidebar voir dire). Appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to seek DNA testing of fingernail clippings | Underwood's counsel reasonably declined testing as consistent with defense strategy to highlight absence of forensic evidence; testing could benefit State under reciprocal disclosure rules. | Trial counsel was ineffective for not testing fingernails, which could have shown third‑party DNA and undermined the conviction. | Counsel’s decision fell within reasonable strategy; testing carried risks (disclosure to State and potential innocuous explanation) and lack of testing was not prejudicial. |
| Failure to introduce expert testimony on sleep deprivation affecting admissions | Expert testimony on sleep deprivation was unnecessary because jurors (and judges on suppression) can assess reliability; such evidence would be inadmissible/duplicative. | Counsel was ineffective for not presenting psychiatric/medical expert to show post‑noon statements were unreliable due to sleep deprivation and custodial conditions. | Court denied relief: matters were within common understanding; expert testimony would likely be inadmissible and counsel’s decision to avoid it was reasonable. |
| Failure to use peremptory strike on juror related to prosecutor | Juror disclosed uncle–nephew relation but affirmed impartiality after detailed voir dire; counsel’s choice not to strike was reasonable. | Counsel was ineffective for not exercising a peremptory to remove a juror with familial tie to prosecutor. | No deficient performance: juror’s answers were balanced and the choice to retain him was a reasonable strategic decision. |
| Withdrawal of request for passion/provocation manslaughter instruction | No rational basis existed for the instruction because provocation evidence was insufficient (words alone inadequate; only defendant’s self‑serving claim of “snapping”). | Counsel erred in withdrawing request for lesser‑included manslaughter instruction. | Denied: no legal basis to charge passion/provocation manslaughter on the record; counsel not ineffective for refraining from a meritless request. |
| Exclusion of defendant from sidebar voir dire participation | Voir dire used the pre‑W.A. “lawyer‑shuttle” method; defendant had real opportunity to participate; there was no entitlement to broader access at the time. | Counsel was ineffective for not ensuring defendant’s presence at sidebar questioning and for not objecting to exclusion. | Denied: procedure complied with prevailing law then; defendant had meaningful opportunity to participate; no ineffective assistance. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice standard for IAC)
- State v. Jack, 144 N.J. 240 (N.J. 1996) (reciting Strickland standard in New Jersey context)
- State v. Preciose, 129 N.J. 451 (N.J. 1992) (prima facie showing required to obtain PCR evidentiary hearing)
- State v. Harris, 181 N.J. 391 (N.J. 2004) (deference to strategic decisions after thorough investigation)
- State v. Kelly, 97 N.J. 178 (N.J. 1984) (limitations on expert testimony about matters within juror common knowledge)
- State v. Castagna, 187 N.J. 293 (N.J. 2006) (evaluate counsel’s performance in totality against strength of State’s case)
- State v. Funderburg, 225 N.J. 66 (N.J. 2016) (elements required for passion/provocation manslaughter instruction)