*1 disbarred, It is that ORDERED JAMES W. TREFFINGER be immediately, effective and that his name from roll be stricken attorneys; hereby ORDERED JAMES W. TREFFINGER be and law; permanently enjoined practicing restrained and from and it is further respondent comply dealing
ORDERED that with Rule 1:20-20 attorneys; with disbarred and it is further ORDERED the entire record of this matter be made permanent part respondent’s attorney file as an at law of this State; and it is further respondent Disciplinary
ORDERED reimburse the Over- sight appropriate Committee administrative costs incurred prosecution of this matter.
Argued March Decided October2004. *15 Priarone, Designated Michael A. Robert Francis Gold and (Yvonne Counsel, Segars, Smith argued appellant cause for Gold, Defender, attorney; and N. Mr. Priarone James Mr. Public briefs). Barletti, and counsel General, Hulett, Attorney argued cause
Nancy Deputy A. (Peter Jersey, Attorney Harvey, New respondent C. General attorney). opinion of the Court. delivered
Justice LaVECCHIA
capital
Harris of
murder
jury
convicted Ambrose
sentence,
affirmed
conviction
him to death. We
sentenced
*16
(Harris
(1998)
I),
Harris,
and
I.
A. application post-conviction capital Review of an relief in a case, eight years sentencing, after the defendant’s trial and is a daunting any task under set of circumstances. It is made more difficult in this instance to the due conduct of the PCR trial court. requires initially That conduct us to determine can whether we any place findings in confidence the PCR court’s and conclusions. explain. Ordinarily We our be review would based on the findings 3:22-11; and conclusions of PCR trial R. court. R. 2:2-1(a)(3). However, certain written and in-eourt of statements complicate that court our review. We will recount those here, to except statements detail note their thrust. The PCR expressed court a belief that defendant would not ever face the penalty, death no matter what the court did: [S]ince the date the United States death Supreme Court reassessed its single ] not a views,[ New defendant has been penalty Jersey executed notwith standing juries 51 the fact that been death persons had sentenced to trial to by date.[] If that of the history of in New non-employment punishment capital guide, executions 38 to Jersey—no be this court years[]—is any entertains substantial this doubt that his defendant, despite crime, ever depravity will of (Cf., be called to his upon finally pay richly-deserved inter the 14- penalty. alia, Edgar Edgar of Smith as in New year odyssey Smith, v. Jersey [433, N.J. (1958) 890] 142 A.2d and its own rich of history marathon and appeals petition involving justices judges, including jackpot more than and his 1971 decision the Federal District Court which divined confession to suddenly his be “involun transgression.)[ tary,” followed his almost return ] by pre-ordained given Rather, the remarkable fervor with which instant matter has been thus far we approached by counsel, PCR can publicly-funded easily anticipate another, yet another another or review of some Such application kind. general when combined with the application, aversion to killers put psychopathic regardless death the consummate exhibited their depravity by crimes and notwithstanding angle any has been analysis, already from coinage deemed, [New our quaint "death- adopt Supreme] Court, Jersey will no doubt worthy,” operate well senior- preserve into defendant’s life citizen status. Civilized can only that defendant’s until society hope will, existence be within a demise, defined cubicle demarcated steel concrete block bars, and razor wire. (Footnotes added).] omitted)(emphasis [
411 only what can be court’s contain The balance of the statements sarcastic, pejorative comments about outrageous, as and described capital system jurispru penalty and this Court’s this State’s death against dence, personal attacks current including gratuitous a court’s statements reveal former members of the Court.1 The its in our preordained a view that role for defendant and disdain The nature of its com system meaningless. capital-sentencing issue, namely we affirm a a whether can raise CaldwellAike ments capital upholding a sentence determination post-conviction relief responsibility for seems] PCR court believe [a “when sentence rests not determining appropriateness of death the reviews case.” appellate court which later the but with the [it] 2633, 2636, 320, 323, 105 S.Ct. 86 Mississippi, v. 472 U.S. Caldwell (1985). 231, 235-36 L.Ed.2d Caldwell, attorney capital the supra, the asked
In defendant’s responsibility calling gravity the jury to “confront both the 324, 105 S.Ct. at another’s 472 U.S. at for death.” prosecutor urged jurors the response, 236. the L.Ed.2d at sentence the determiners of the defendant’s to see themselves as appropriateness for would be reviewed a death sentence because 2637-38, 325-26, Id. 105 S.Ct. at by supreme the state court. at Supreme Court “con 2d at The United States 86 L.Ed. 237. constitutionally impermissible to a death rest it is clude[d] made a sentencer who has been on a sentence determination determining appropri responsibility led to believe that elsewhere.” Id. of the death sentence rests ateness 328-29, 105 Acknowledging “the at 239. S.Ct. at L.Ed.2d punishments [as] from all other qualitative of death difference scrutiny greater degree of of the correspondingly require[ing] determination,” Supreme Court observed capital sentencing We find the comments of is not 1 The PCR court's decision published. to be devoid of function in address, which court, any PCR we now wholly jurisprudence. Hence, we judicial will not death quote discourse of our penalty our oral statements that inform court's written other of the PCR or portion any deserve no conclude that such statements as we analysis, place present decisions of this State. published “many placed imposition limits that on the [it] ha[d] *18 capital punishment sentencing are in a the rooted concern that process responsible should facilitate the and reliable exercise of 329, 105 2639, sentencing discretion.” Id. at at 86 S.Ct. L.Ed.2d at 239. Supreme
The
Court continued:
Eighth
jurisprudence
given
[TJhis
as
Court’s
Amendment
has
a
that
taken
capital
determining
sentencers would view their task as the serious
a
one of
whether
State____Belief
being
human
should
of
die at the hands
the
in the truth
specific
of
the
that sentencers treat their
to determine the
assumption
power
appropriateness
of death as an “awesome
has allowed this
to view
Court
sentencer
responsibility”
Eighth
discretion as consistent with—and indeed as
to—the
Amend-
indispensable
ment’s need for
in the determination that death is the
reliability
appropriate
ain
case.
punishment
specific
(internal
[Id. at
105
329-330,
S.Ct. at
Thus, directly rely in although we do not Caldwell transgressions, find addressing we that Caldwell the PCR court’s nullify support the court’s provides for our decision to PCR said, ground That our nullification of findings and we conclusions. in matter in our State Consti PCR court’s determinations this the punishment, N.J. protection against cruel and unusual tution’s ¶I, 12, post- specifically, and on the role that art. Const. play assuring proceeding expected is in conviction review capital-sentencing in scheme. meaningful appellate review our pro- meaningful post-conviction review have stated that a We constitutionality capital of ceeding is to the state our essential 603, Martini, 613, 677 A.2d sentencing process. v. 144 N.J. State (1996). Georgia, Supreme Gregg v. the United States 1106 In capital requires that a Eighth Amendment Court held that the sentencing guidance regarding factors about jury “given be 414
crime and the defendant” that are relevant to an individualized
sentencing determination,
153, 192,
2909, 2934,
428 U.S.
96 S.Ct.
49
(1976)
L.Ed. 2d
(opinion
Stewart, Powell,
885
Stevens,
JJ.), and that
safeguard
“the
meaningful
further
appellate
review is available to ensure that death
imposed
sentences are not
capriciously,”
id. at
96
S.Ct.
The comments of the PCR court here demonstrated a diminish- ed unique sense of its responsibility in our capital-sentencing process. essentially that, The court though concluded even defen- “richly-deserved” dant penalty, the death the sanction never would imposed Jersey. be in Apparently, New the trial court believed process required by the “heightened the reliability need for in the determination that death appropriate punishment is the in a
415 Caldwell, money. and of both time specific case” was waste 2636-37, 323, L.Ed.2d at 236 at 86 supra, 472 at 105 U.S. S.Ct. Martini, omitted); (internal supra, 144 see also quotation marks 613, of court’s com 1106. In the context at 677 A.2d N.J. fairly ring hollow. ments, ability adjudicate of its its assurances disapproval our of They the PCR court’s vehement cannot undo capital-sentenc system, jabs at our or the taken capital-sentencing it, attorneys, including this in ing process and those involved Court, guarantee defendant’s attempting courts and the federal “[bjecause short, say cannot rights. [the we constitutional court, in open court and its decision of PCR both statements decision, matter,] that decision does no on [its] in this had effect Caldwell, reliability require[d],” ... of the standard not meet 247, at and at 86 L.Ed.2d at 105 S.Ct. supra, 472 U.S. its performance court has failed the PCR therefore meaningful post-conviction assuring necessary role Martini, supra, 144 at N.J. capital See of his sentence. review 613, 677A.2d 1106.
B. then, remedy this left, question of with the areWe entirely by court in a case the PCR brought about problem bias, statements, already eight years old. The court’s no us to afford they portray, constrain and disdain flippancy, follow, It does not any findings or conclusions. weight to of its redone, causing considera however, proceeding must be that this this matter. delay in resolution of further expense and ble review, we are not appellate rules of Under established of the legal conclusions to the give no deference bound Bros., 173 N.J. Township Windsor Inc. v. W. court. Toll PCR (2002) of law are 502, 549, (noting questions A.2d 53 review). give deference to Typically, subject “[w]e novo to de by adequate, supported findings ... “when factual trial court’s ” 803 A.2d Id. and credible evidence.’ substantial Am., Resort, Investors Ins. Co. Inc. v. (quoting Rova Farms *21 416 (1974)). 474, 484,
N.J.
We have two One would be to remand the matter to a different trial proceedings. court for further E.g., PCR State v. Rue, 1, 19, (2002) 175 N.J. 811 (affirming Appellate A.2d 425 Division’s hearing, reversal and remand for assign new PCR and ing remand, judge). remand to different trial On the PCR court generate could a new record findings and render fresh factual legal conclusions. The other would be to determine whether our discretionary jurisdiction permits present de novo review the record. VI, 5,
Article
paragraph
section
3 of the 1947 Constitution
authorizes the
original jurisdiction
Court to “exercise such
may
as
necessary
be
complete
to the
any
determination of
cause on
¶
VI,
5,§
review.” N.J. Const. art.
3. Our Court Rules confer the
power
same
appellate
our
courts. R. 2:10-5. We have noted
that “[t]he framers of
clearly
the 1947 Constitution
intended that
Supreme
carry
Court
appellate
out its
review function
undertaking
thorough
comprehensive
consideration of each
Loftin,
(1999)
ease.”
v.
State
157 N.J.
In State v.
N.J.
42
well be said
that which must exist
mind is a definite
judge
conviction that
went so wide of the
a mistake must have been
mark,
made.
(citations omitted).]
[Ibid,
years
We refined the Johnson standard a few
later in
v.
State
(1967):
Yough, 49 N.J.
A
may
to the
case
be found State v.
151, 159,
(1987),
Sugar, 108 N.J.
419
credibility
require
subjective
issues of
or
and intuitive evalua-
remand____In
tions of a trial court that would otherwise
dictate
circumstances,
extraordinary
appropriate
th[o]se
we
it
believe[d]
original jurisdiction.”
159-60,
to exercise our
Id. at
Mont. 81 P.3d our invocation of original jurisdiction appropriate findings here where “the were exclusively legal factual implications but were intertwined with judge.” Yough, supra, drawn the [PCR] 49 N.J. at A. 2d 598. appreciate
We the course of our review certain factual necessary determinations will be to assess defendant’s claims. However, individually, as each claim is addressed we shall ensure *24 objective our resolution of the claim is based on evidence in record, any credibility by and not on determination made specifically PCR court. We note that where defendant’s PCR testimony counsel, claims conflict with the of his trial challenge counsel, has not based his on of the truthfulness but instead on whether counsel’s action or tactic was reasonable.
420 may circumstances, comfortably exercise we we conclude that
such
See, e.g., Sugar,
original jurisdiction.
our
to invoke
our discretion
159,
(finding
original
of
exercise
at
421 (3d Cir.1997). wa, Indeed, 120 F.3d 441 where a district evidentiary hearing respect does not an in court hold of a habeas petition, corpus appeals may of the court de novo exercise review documentary the factual by over inferences drawn from the record Fulcomer, Zettlemoyer district F. court. v. 2d 291 n. 923 5 (3d Cir.1991), denied, 902, 112 280, 116 cert. U.S. S.Ct. L.Ed.2d (1991). Thus, our to conduct novo decision a de review of both findings legal factual and conclusions of PCR court is authority and, appellate further, our within consistent with the And, practices in although followed federal habeas nor review. mally in credibility findings both of review a trial forms court’s deference, would be entitled to we here note that there are no credibility. that turn Accordingly, origi issues invoke our we jurisdiction nal in of the review this matter. conclusion, we hold that the PCR court demonstrated responsibility of capital proceeding,
diminished sense this and belief, repeatedly writings, stated on the its record and Although never out. sentence would be carried points out State PCR court read all the relevant docu- ments, opinions, rendered five written and conducted an evidentia- ry hearing, among things, we conclude that other cannot merely tasks, performing the PCR court rendered those its find- ings any respect proper conclusions with sense of the for its responsibility capital sentencing-system. in our and role We hold findings null that the PCR court’s and conclusions are and void as However, injudicious performance. light a result its of the us, nature both the error and the before claims record we may further determine we exercise our discretion review findings PCR court’s factual de remand. novo without
II.
A.
History
Background and Procedural
extensively
The facts of this
have been set
in our
case
forth
I,
134-41,
previous
supra,
at
decisions in Harris
156 N.J.
716 A.2d
II,
307-14,
supra,
165 N.J.
That had turned its focus same young neighborhood, on Two men from defendant’s defendant. Scott, they police Brian forward to tell Goss and Cowie came driving Toyota sports had observed defendant a red car with 13, 1993, Pennsylvania plates January on 1992. On December Tariq Ayers, nephew, police Decem- told that on 17,1992, car, sports ber he saw defendant with a red two-door and hijacked he it and defendant boasted had “knocked off some girl.” security A records showed that white camera bank also Huggins’s attempted on defendant to withdraw from account $400 17,1992. December
Meanwhile, Detective Golden continued to seek information Dunn, signs having from knowledge Hug- who showed about gins’s disappearance. initially sister, She claimed that a her But, psychic, map indicating Huggins’s had drawn whereabouts. 18, 1993, February Huggins’s body police, she located admitting that she was with Hug- defendant when he murdered gins. gave Dunn police several statements to the over the next year-and-a-half that often contained different details. She did not serially mention that Huggins Septem- assaulted until ber 1994. 8,1994, grand jury
On June purpose indicted defendant for conduct, ful-or-knowing murder, murder felony his own first- degree kidnapping, first-degree robbery, first-degree aggravated assault, second-degree possession handgun sexual of a for an purpose, later, unlawful multiple theft offenses. Three weeks County the Mercer Prosecutor’s Office served defendant with *27 factors, capital aggravating of alleging notice that he murdered Huggins felony, contrary in the course of a to N.J.S.A. 2C:11- 3c(4)(g), detection, purpose escaping and for the of contrary to 2C:11-3c(4)(f). N.J.S.A. motions, pre-trial
Defendant
including
filed several
one for a
change
empanelment
foreign jury
in venue or
of a
of
because
the
pretrial publicity
“massive
concerning
the Trenton area”
his
I,
135,
supra,
ease. Harris
During “relating defendant made several motions principally attorney-conducted to the court’s termination of voir dire, inquiry the court’s limitation on into the racial attitudes I, Harris 156 N.J. at jurors, qualification.” and
prospective
death
motions,
but the
trial court denied those
The Homicide decision, testimony “Dunn’s As we remarked our earlier linking Huggins’s only defendant” to provided the direct evidence I, jury supra, 156 at 716A.2d 458. The Harris N.J. murder. testimony following account from her could have found the factual other evidence. and State’s waiting at the September met in 1992 while
Dunn and defendant During City agency. phone conversation of Trenton’s welfare Thanksgiving year, proposed defendant around the time agreed. Dunn robbing in downtown Trenton. a luncheonette 17, 1992, at the corner of They at 8:00 a.m. on December met streets, robbery to execute the Market and South Broad Trenton, riding bicycle proceeded toward downtown gun Dunn he was walking. Dunn Defendant showed carjack somebody carrying to obtain and stated that he wanted planned what he to do with the a car. Dunn asked defendant carjack, replied that if the victim person he would and defendant somewhere, black, up her but that he would tie her and leave kill a victim. he would white *28 Club, young they saw a passed the Trenton defendant
As parking He sports car into the club’s lot. woman drive her red car, going get I’m to that bitch.” “[TJhere’s stated to Dunn: lot, parking out of rode his bike to the rear Defendant carjacked kidnapped Huggins. He sight, and Kristin Dunn’s and seat, Dunn, Huggins in and to the front drove the car back with gunpoint get Huggins ordered Dunn at to into the car. on sat lap pleaded safety. Dunn’s and for her parked
Defendant to and drove under the Southard Street Bridge. Huggins open get He ordered to the front trunk and to it, worrying any in suspicious onlooker would be of two black people driving with a white woman. Defendant then drove back bicycle. bike, hiding to the Trenton Club to retrieve his After Huggins making defendant became frustrated with the noise from popped the trunk. He told Dunn that he “should have bitch” earlier. to, under, parked
Harris then drove the car and back car, Bridge. Southard Dunn Street Defendant and exited the opened fear, helped Huggins, trembling he the trunk. Dunn Huggins get out of the trunk. Defendant then ordered into the car’s front Ignoring Huggins’s seat and to take off her clothes. crying pleas, anally raped and her her and returned her Then, mind, change to the trunk. in a defendant decided trunk, helping instead to kill her. As Dunn was her out of the Huggins dragged defendant shot in the back of her head. He Huggins’s body a placed short distance from the car and mattress over her.
Defendant and Dunn then drove his mother’s house bury in Cortlandt Street Trenton to obtain a shovel to use to Huggins. Upon returning bridge, to the deserted area under the face, Huggins again, shot Harris this time to ensure that dug grave body in she was dead. He a shallow and threw her it. Rummaging through belongings, thirty approximately her he took bag. dollars cash and an ATM card from her art After unsuccessfully attempting Huggins’s sell car New York and Trenton, defendant it at a abandoned construction site behind Community College, smearing throughout Mercer mud its interior fingerprints. to hide
During guilt phase, counsel defense worked undermine credibility. Although essentially the defense conceded Dunn’s murder, felony robbery, kidnapping, argued counsel that the *29 testimony regard to the evidence did not corroborate Dunn’s actually trigger- the assault and whether defendant was sexual twenty-month delay emphasized person. The defense Dunn’s involved, among many reporting rape that inconsistencies events, money, motivation for reward her her versions her State, bargain and her help Huggins, plea her with the failure prior drug dealing. problems, character which included Counsel investigation prematurely ruling out police also attacked neighborhood drug possible suspects, as the users and other such against testified defendant. dealers who testimony. supported The State’s case Dunn’s Underwear body Huggins’s positive from tested stains and rectal swabs taken only placed for a found in seminal fluid. Other evidence substance weapon possession before and after the murder defendant’s Huggins’s disappearance. expert A ballistics testified Huggins’s body gun bullets found in came from the that authori- charges, ties found on Harris when he was arrested on unrelated days nephew, Tariq, disappearance. ten her Harris’s who after bragged “knocking] off testified that defendant about some white use, girl,” bought gun but also stated that he for his own then gave it to before December 1992. Also in line with defendant testimony, charges, Dunn’s as well as relevant to the other police Huggins’s trunk of discovered hair and coat fibers car, on a from her and more fibers were found shovel retrieved residence. defendant’s
C. Penalty Phase jury- mitigating Defendant circumstances to the submitted heading of “childhood of Ambrose Harris.” The under the birth, related was limited to life from his evidence 9, 1952, May years to October when he was thirteen old. mitigation prevent scope The defense limited the of its case to presenting Department of State from criminal and Corrections dangerous depict as a violent and menace. records Fairchild, through Sheila mitigation case presented his Defendant history, as well as compiled his social who a forensic social worker Gruen, psychologist, and Dr. Daniel a child through Dr. Ronald *30 Greenfield, psychiatrist. public schools investigation yielded records from the
Fairchild’s attended, Clinic Trenton the Child Guidance that defendant (Guidance Clinic), psychiatric hospital from State’s and father, defendant, mother, his also interviewed Trenton. She teacher, half-sister, psychia- brother, and a grandmother, a former youth. inter- in his Fairchild twice who treated defendant trist (Mattie), mother, she but Mattie Williams viewed defendant’s and defendant’s cooperate any further with Fairchild refused cross-examination, Fair- emphasized on As State counsel. only from included statements history of defendant child’s social defendant, mother, and his brother. his childhood, having as a miserable
Fairchild described defendant she mainly mother who wished to an abusive and unconcerned due fought with defendant’s physically Mattie never had children. two father, his wife and a drinker who abandoned described as years old. Records from was three small children when defendant that Mattie was a ne- explicitly confirmed Center the Guidance “apa- her as unhappy Social workers described glectful, mother. annoyed and problems, as son’s “somewhat thetic” about her her, per- and as to embrace unresponsive” when defendant tried mainly ceiving as a burden. her son by physically his he was abused told Fairchild that
Defendant that his mother, He stated step-father, Walter Williams. and his strap, ironing and records him with an cord or mother would beat sons. Defendant’s physically did beat her confirmed that Mattie actually “jump would he and defendant told Fairchild that brother Fairchild, lick,” which, according to ex- in to take each other’s [abuse, not uncommon is] about which pressed a “cavalier attitude for children who are abused.” and Fair- childhood records of defendant’s
Based on his review into a agreed that was born findings, Dr. child’s Gruen home,” dysfunctional “chaotic and with a destructive and disinter- abusive, neglectful, ested mother. Gruen testified and by mother, infantilizing produced treatment his in defendant rage against “tremendous and ambivalence then women.” The psychologist child public system ignored believed that the school special psychiatric hospital needs that the incor- rectly diagnosed multiple him psychiatric times. Doctors at the hospital originally diagnosed having merely defendant as an ad- justment disorder, then, subsequent after his release and institution, psychotic, return to the as schizophre- with childhood disagreed nia. diagnoses, Gruen testifying both that defen- dant had a “severe conduct disorder” the time he reached years opinion, thirteen old. defendant should have been placed in a emotionally residential treatment center for disturbed children. Greenfield,
Dr. who also reviewed defendant’s records and findings, agreed Fairchild’s diagnosis with Gruen’s of Harris as a *31 neglect child. As to the parents, and violence of defendant’s Greenfield that years stated defendant’s formative were “terrible” and that he should have “squalor” been removed from the of his “toxic environment” at home. Greenfield testified that I “[if] were trying to write a book during about how to raise a child those years, I everything would do that was I done to him. would not supportive, abusive, be I would be I would be inconsistent. Some- infantilizing times and sometimes not.” present The State did not penalty phase new evidence at the to support escape-detection felony-murder aggravating and fac- Instead, sought tors. it mitigation by weaken defendant’s case questioning presented whether Fairchild a fair and balanced social evidence, history, by based on her underscoring that give defense did not Gruen and opportunity Greenfield the conduct a mental examination of defendant. jury proved
The concluded that the State both aggravating beyond doubt, factors a reasonable sup- and that the evidence ported the mitigating defense’s consolidated factor. It also found mitigating outweighed factor factors aggravating The defendant was sentenced beyond doubt. a reasonable death.
D. Hearing Post-Conviction on petition post-conviction relief filed a verified Defendant 23, 2001, ineffective primarily alleging that he received February penalty phases guilt and at both the assistance of counsel judge and to May to recuse the trial trial. he moved guilt sentence. The jurors determined his who interview reasons, judge trans- precise but the indicate the record does not judge, 'presided over the trial who ferred the matter to another 25, 2002, judge an April issued hearing. On post-conviction juror post-verdict denying motion to conduct opinion this court denied defendant’s June interviews. On on that issue. appeal the trial court’s decision motion for leave 4, 2002, argument heard oral on the PCR court On June testimony evidentiary hearing, including whether scope of the proffered witnesses claims and which would be allowed certain attorney who testify. the State’s The court held would testify, defendant, (Zarling), as Zarling would prosecuted William (Call) counsel, and Thomas John Call defendant’s trial well as testimony David precluded from Scully3 (Scully). The court Glazer, expert capital as an Esq., proffered credentials, defense, Glazer’s although it did admit and consider permit proffered opinion. It also did not and written affidavit Dunn, witnesses, including Detective testimony Gloria of other *32 attorneys Fairchild, Golden, and who Tariq Ayers, two Sheila Scully. prior to and represented Call trial, Scully 3 was confirmed as Thomas We that after defendant's note judge. Superior Court 430 evidentiary
The hearing August PCR court held the initial 6 7, day and testimony, 2002. On the first of defendant moved to petition light amend his Supreme of the United States Court’s recently case, Virginia, decided Atkins v. which held that Eighth prohibits executing Amendment states from offenders with 304, 122 2242, 153 mental retardation. 536 U.S. S.Ct. L.Ed.2d 335 (2002). Defendant asserted that he has both mental retardation illness, and mental which bar his execution. The PCR court agreed to consider defendant’s claim of mental retardation and the contention, support materials submitted in of that but determined testimony only to hear court-appointed expert. from a According ly, Friedman, the court heard from Dr. state-employed Marc psychologist expertise in mental retardation. 14, 2002,
On October
defense counsel moved to recuse the trial
court from consideration
petition
of his PCR
and to amend his
petition
light
Arizona,
Ring
584,
2428,
v.
U.S.
S.Ct.
(2002).
III.
A. Standard of Review
The Sixth Amendment to the United States Constitution
I,
paragraph
Article
Jersey
10 of the New
Constitution
provide
right
defendant with the
to receive the effective assistance
Fritz,
42, 58,
counsel.
State v.
(1987),
105 N.J.
below
standard
reasonableness,” Strickland,
466 U.S. at
supra,
431
for
of the
errors,
but
counsel’s
the result
that,
proceed
unprofessional
probability
ing
at
L.Ed.2d at 698.
694,
2068,
have
id. at
104 S.Ct.
80
different,”
would
been
prong
showing that
omissions fell
is satisfied
counsel’s acts or
The first
light
range of
considered in
the wide
assistance”
professionally competent
“outside
L.Ed.2d at
circumstances of
ease.
Id. at
* * * showing prong is a reasonable a defendant “there The second satisfied by errors, for the result of the proceed- but counsel’s that, unprofessional probability ing 104 S.Ct. at L.Ed.2d at 698. 694, 2068, have been different.” Id. at 80 would must as to undermine court’s confidence in The eiTor committed be so serious the jury’s verdict or result Ibid. reached. (2004) ]. A.2d 487 [State Chew, 186, 203-04, v. 179 N.J. 844 Prong Deficiency B. deficiency analysis, in respect
In
of the
Strickland
reviewing
“highly deferential,” supra, 466 U.S.
courts to be
structs
694,
2065,
“indulge a
689,
at
and to
explicitly states
the same
at
80 L.Ed.2d
apply. Supra,
C. prejudice
To
by
demonstrate
per
caused
the deficient
formance of
during
guilt phase
counsel
capital
proceeding,
a
a defendant “must show that
there is a
probability
reasonable
that,
unprofessional
but for
errors,
counsel’s
the result of the
proceeding would have been different. A
probability
reasonable
probability
sufficient to undermine
in
confidence
the outcome.”
Strickland, supra,
694, 104
2068,
466
atU.S.
S.Ct. at
80 L.Ed.2d at
prove prejudice
698. To
during
penalty phase, however,
“a
capital defendant does not need to show that the result ... would
DiFrisco,
have been
195,
different.”
v.
219,
State
174 N.J.
804
(2002) (DiFrisco III).
A.2d 507
prejudice
The
employed
test
evaluating penalty phase
“require[s]
IAC claims
courts to deter
mine whether
that,
there is a
probability
reasonable
but for
errors,
unprofessional
counsel’s
jury’s penalty-phase
delibera
tions would have been
substantially.”
III,
Marshall
affected
supra,
added).
148
at
N.J.
1 (emphasis
A.2d
Confidence
key.
the outcome is
The
probability”
“reasonable
that delibera
tions would have
substantially
been affected
means that
there
probability
exists “a
sufficient to undermine confidence in the
III,
outcome.”
supra,
DiFrisco
N.J.
The aforesaid guide standards evaluating us in claims of ineffective assistance of counsel.
IV. IAC Claims: Guilt Phase We consider first the several claims of ineffective assistance defendant regarding guilt asserts phase of his trial. To the possible, extent related claims are combined. Dunn to Gloria
A. Letter Written sup- have moved his counsel should argues that Defendant Dunn while he was that he had written Gloria press a letter First, argument. he contends presents a two-fold prison. He right Amendment violated his Sixth that Detective Golden him after an from urging Dunn to elicit a letter counsel already had consulted Office attorney from the Public Defender’s charge. Sec- weapons possession in connection with a him violated rights were ond, argues that his Fifth Amendment he writing given Miranda warnings prior to he was not because necessary warning because that such Dunn. He contends letter, and the detective’s custody when he wrote he was interrogation. of it constituted elicitation Background 1. disappeared, was arrested days Huggins after
Ten charge. At the time defendant possession weapons an unrelated *35 Golden, the with during Dunn’s conversations charged, and was charged with weapon was that the police did not know was Huggins’s murder. After he used in possessing was the one Rahman, assigned Amira Office arraigned, Public Defender’s According to weapons charge. him on the Esq., represent to 15, prison, him in defendant, January with during a 1993 visit suspect Huggins’s in had a him that he become Rahman informed disappearance. Sixth eliciting of the letter and defendant’s turn to
We Golden, earlier, part- a Detective As noted Amendment claim. complex, conversed with apartment security guard at Dunn’s time In late Decem- building. at and left her Dunn she arrived when defendant, sought to learn Golden 1992, Dunn mentioned after ber Harris, disappearance. Huggins’s or about something about 1993, 21, January 1992 and December between Sometime from Harris directly if she had heard Dunn Golden asked Huggins’s about for information the reward reminded her of whereabouts. January
On already when suspect, Harris was Golden and another apartment detective went to complex talk preference with Dunn. She speak indicated a with them at police station and so their place discussion took there. Dunn told them that Huggins’s she knew about disappearance only through newspapers, but she later volunteered that her sister psychic was a map and had a that showed Hug- the location of Later, gins’s body. and, drove Dunn evening, Golden home approached Dunn written, Golden with a letter that she had “Abu,” addressed to it, which she said referred to defendant. Dunn supported stated that she police him and that the would not girl.” find “the white Golden became convinced that Dunn had been communication with Harris and had useful information. suggested He that she revise the letter thought because he its wording specific was too and he might was concerned that it be perceived by warning. Harris as a later, approached
A week letter, Dunn Golden with a revised general Golden, more According tone. when Dunn asked if it, she should send he said that she should if she felt like it. Apparently, did, she provoked response. and it 17, 1993, February
On brought Dunn response Golden the letter, written defendant. “2-12-93,” The significant dated from perspective jurors because could tell from it that And, was he incarcerated. although it does not contain a confes- sion, prejudiced he it contends him because it bolstered the testimony of Dunn who a credible witness. The letter following includes passages: staying strong fighting Peace and Power I am Sis. still Baby on the front line. (with date). I am glad presently receipt your missive no I was to hear very get from But you. before I into this mom kite, my told me to tell to call you her sometimes ... I need you cousin Yvone team-up my from the Pinkey Miller *36 do Homes, understand? Mom will you clue in on what need to you you know. As as
well Yvone. Watch whenever talk yourself you anyone over the telephone, because there wired for sound. Listen whenever up, write to me in the you future, never use your name and/or address. Use a fake return name and address. Never refer to in of yourself any letters name. Just out a your name and fake pick address. am By Iway,
435 pigs mailing Because certainly under other inmates name. be letters you my Pigs anything reading on mail send under name. haven’t my that I receive and/or trying So, that’s been all the newspapers. they’re me with white female get charges. on this talk to I’ll with after you you frame me fake back up rape &mom Yvone. my Maintaining Order
Abu hearing did not there
At the PCR Call testified that “he believe legal upon or which make Sixth [a sufficient factual basis did suppression] Defense counsel motion[ ].” or Fifth Amendment evidence, move, however, arguing that from to exclude letter discern that Harris was incarcerated when jurors would be able to it, prejudicial outweighed its potential harm he wrote and that its Nonetheless, the trial court admitted the letter probative value. Moreover, prosecutor jury. referred it was read to the to Dunn “never use during to Harris’s instruction summation any correspondences. name and your address” Analysis 2. and Conclusion of of assistance counsel arguments
Defendant’s ineffective merit because there were neither Sixth respect letter lack to have grounds for counsel moved nor Fifth Amendment suppression the document. “of right to counsel is Sixth Amendment
Defendant’s Cobb, 162, 164, specific” v. 532 U.S. in its attachment. Texas fense (2001); 149, 321, 1335, 1338, v. 326 McNeil S.Ct. L.Ed.2d 121 2207, Wisconsin, 2204, L.Ed.2d 115 S.Ct. U.S. (1991). Notwithstanding had commenced that Rahman weapons charge against representation defendant for the her him, directly police questioned defendant about could have Dunn and con Huggins’s disappearance at the time that Golden writing a to him. Defendant’s Sixth about Dunn letter sulted charge did attach to the murder right to counsel Amendment charged weapon used merely possessing because he was noted, time, police previously Huggins. to murder As *37 436 weapon; gun
did not know that Harris’s was the murder weapons charge to Huggins was unrelated murder. respect warnings,
With
Miranda
defendant acknowl
edges
right
present
warnings
light
that he had no
to such
in
Perkins,
292,
2394,
Illinois v.
496
110
U.S.
S.Ct.
L.Ed.2d at “Coercion is determined from the suspect,” a suspect speaking when considers himself to a cellmates—or is no friend—there concern about coercion that prompts give the need to warnings. Miranda Ibid.
Nonetheless,
Perkins,
conceding
defendant
that
contends
we
greater protection
should hold that he is
entitled
under our
Essentially,
State Constitution or the common law.
defendant
asks that we find trial
anticipating
counsel ineffective for not
change
change
in law—a
this
which
Court has not indicated that it
adopt.
will
posture
argument
Defendant’s
validates the State’s
cognizable
there cannot be a
ineffective
claim
assistance
when
yet
legal
there
a recognizable
is not
basis for the motion that
says
should have
made.
been
J.D.H.,
is
helped by
Defendant
his reliance on
re
(2002).
N.J.
Harris was whether, jail. question is from defen- important He was The arising was a of coercion from perspective, there threat dant’s interrogations. pressures We inherent associated custodial *38 by sent him Dunn did not cause no doubt that the letter have claim ineffective any such threat of coercion. Defendant’s in Dunn is denied. respect of the letter assistance Officer B. to Probation Statements suppress counsel have moved to argues Defendant that should probation during presen- a to a officer statements that he made robbery in concerning an conviction. As tence unrelated interview claim, rights that prior he contends the officer violated his further, against self-incrimination, possi- and and that the counsel being against during him cross- bility of those used statements prevented testifying from at trial. Had those him examination suppressed, he claims he would have testified statements been Huggins. support inten- actually To his claimed that Dunn killed affidavit, testify, points in pre-trial to his which tion to defendant bifurcating grounds phases. the trial cited that as he desire Background 1. 20, 1992, report,
According on December three presentence to a murder, a approached woman days Huggins’s after defendant her, street, gun, placed a it pulled in front of out and “jumped fear, victim and Harris threat- against her forehead.” The fell approached in a acquaintance the victim to kill her. An ened out, you alright?” responded that she yelled Harris car and “Are was, away. purse and and he took her walked 6, 1993, conducting investigation an into January police,
On assault, for the executed a search warrant an unrelated sexual time, in a property of Harris. At that Harris was personal charges. During facility being weapons held on their corrections search, 20th police property belonging to the December found robbery victim. May, 1994, robbery first-degree Harris was convicted and prepare that To pre-sentence
other crimes related to incident. (PSR), report Douglas Probation Officer Meckel interviewed de- attorneys time, Hamilton, Harris’s fendant. Abatemarco and stating they have submitted affidavits this “do not PCR could, to, advising ought recollect Mr. Harris that and he decline any Department They effort Probation interview him.” they present during also attest were not and did the interview Department’s not learn of the Probation intention to interview Harris. PSR, According to the defendant stated to that “he Meckel ” slaves,’
could never be ‘normal’ because he was ‘a descendant of society slavery. and is now the victim of a racist He man,” man,” described himself as “real and a “real black emphasizing that “took” “tak[es] he what [he] want[s].” children, responded may When asked if he had that he couple there,” stating have “a out that he lets “the women take likening himself, way, care of them” and to “a wolf or a *39 bear.”4 Analysis
2. and Conclusion
If defendant
prejudiced
cannot show that his statements
him, then his IAC claim fails. He
this
comment in
cites
Court’s
I,
supra,
160,
Harris
156 N.J. at
458,
“may”
716 A.2d
that there
record,
testify
have been a reason
did not
he
besides his criminal
looming presence
asserts
now
that the
of the PSR constituted
However,
suppose
that reason.
we
to
have no basis
that Harris
Indeed, although many
would have testified
for the
but
PSR.
of
prior
crimes would have been sanitized under State v. Brun
his
son,
377,
(1993),
132 N.J.
jury
As the State trial, describing support Scully’s testimony during conduct as, “perhaps,” impediment” to Harris statements “minor Meckel extraordinary mountain of testifying “when considered with the Scully’s testimony existed.” reveals a reason- impediments that uncontradicted, strategy, amply supports conclu- is able appreciable prejudice no from the PSR in view sion that there was testifying. to other Harris obstacles to counsel that it would be an error of ... so clear I believe both abundantly It was ongoing on the to Mr. Harris stand based immeasurable put proportion during the door course of the on that would trial, possibly open based behavior the other to Mr. Meckel’s That presentence report pales comparison report. placing stand. I Mr. Harris on the had with respect impediments concerns satisfy the Accordingly, we conclude defendant cannot necessary claim. prejudice prong for his ineffective assistance prejudice prong it Although we first because have addressed claim, readily perform add that counsel’s disposes so this we unnecessary respect—it simply in this is ance was deficient that, only any lengthy point. note engage in discussion on the We protections, right to respect of defendant’s Fifth Amendment inherently suspects “the Miranda aims protect from coercive P.Z., 86, 113, v. 152 N.J. State interrogations.” nature custodial (1997). interview, presentence which A.2d 901 Because sentencing purposes, is not by a court officer for conducted coercive, majority inherently of courts that have “the considered have constitution” held addressed this issue under federal Cyr, State v. 169 Vt. See warnings required. Miranda are not (1999) (citing courts numerous federal circuit 726 A.2d *40 decisions).
Furthermore, Fifth if Meckel violated defendant’s even warnings Miranda administering to rights Amendment not for him, have statements still could used PSI the State 440
impeachment purposes. Statements
taken
violation of Miranda
may
impeachment
freely
be used
they
given
when
were
York,
voluntarily.
222,
643,
Harris v. New
401 U.S.
91
28
S.Ct.
Burris,
(1971);
509, 525,
L.Ed.2 d
State v.
145 N.J.
Finally, right counsel, as to the Sixth Amendment right triggered stage[s] that at “critical of those [adversarial] proceedings absence, advice, might where counsel’s or lack of derogate right from the to a trial.” accused’s fair v. Baumann States, (9th 565, Cir.1982); United 692 F.2d Michigan 577-78 see Jackson, 625, 632, 1404, 1408-09, v. 475 U.S. 106 S.Ct. 89 L.Ed.2d (1986). 631, Although 639-40 we question, do not reach the we that note that have right courts considered whether attaches during presentence interviews have determined that such inter do not represent stage” proceed views a “critical in adversarial Hicks, (4th ings. e.g., See v. United States 948 F.2d Cir.1991); Jackson, (7th United States v. 886 F.2d 843-45 Cir.1989); Butler, (5th Cir.1987); Brown v. 811 F.2d Baumann, supra, Thus, 692 F.2d pursuant at 578. case law, although right defendant had a present counsel if have he during interview, wished the Sixth does Amendment not compel present. light be law, counsel that existing ease regard we do counsel’s failure to suppress, to move based on argument asserts, defendant now to constitute deficient assis tance. Tariq Ayers
C. Cross-examination of argues prejudiced by Defendant that he was counsel’s failure to Tariq cross-examine on his statement to investigators defense police implicating coerced him into defendant. Background
1. fourteen-year-old Defendant’s nephew, Tariq, gave a statement January 13,1993. (Bever- police mother, Beverly Ayers His *41 police he saw Harris on accompanied Tariq Mm. told the that ly), 1992, out,” red, sports ear. 17, in a “hanging two-door December alone, Harris, and the two went for Tariq approached who was 26,1992, later, police on he Tariq that December ride. also told car, defendant “said he Harris he had obtained the and asked how ... from white hijacked the from Street some car West State police, told importantly, Tariq “[Harris] also told the girl.” More ” Tariq and his girl.’ Both mother he ‘knocked off some wMte me “true, free, statement, and police agreeing that it was signed the voluntary.” proceedmg,
According FBI in the PCR to the records submitted February 5, state- Tariq “reviewed and reaffirmed the Wednesday, gave Department] on he Police [Trenton ment Additionally, Tariq FBI that had January told the he 1993.” magnum pistol three twenty-two months given Harris a caliber disappearance, earlier, evening Huggins’s and on the of that Huggins’s through wallet of and went search Harris two others February also that 5th interview transcript cards. The credit havmg and Tariq regular that admitted use of cocaine reveals evening 5:00 during previous it and until a.m. used conclusion, Tariq crying was morMng. By the mterview’s mother, waiting in room. asking for had been another who room, Beverly Upon entry into the observed her interview him, anyone had bleeding. asked him if hit Tariq’s nose She was “No, outside replied, he one hit me.” her son’s to wMch No When special agent, “I don’t under- Beverly FBI presence, said nosebleed], it why happens [referring to her but son’s stand this happened has before.” police months after his imtial March 1994—fourteen
On testimony—Tariq twenty his trial months before mterview Goldstein, investigator for Public an chief told Alan assistant Defender, “was the result January Ms 1992 statement particular by an African beatmgs given police, him the ” day, Beverly told knows ‘Rev.’ That same American officer he as got the interview he son] she after “[w]hen [her Goldstem that bumped investigator and bruised.” Another and one defen- (Hamilton) attorneys present dant’s also were the interviews with Goldstein. Beverly again
Goldstein interviewed two weeks later. She *42 repeated Tariq that told her that had him and “Rev” beaten that she observed bruises her son. said complained on She she to the time, at implied detective the “who her Tariq being to that present during untruthful.” She added that she was the part beating earlier of the allegedly place. interview when the took trial, Tariq’s testimony At defendant’s was consistent with his original police. to bought statements the He stated that he a gun exchange for cash and crack in November 1992 because he target being was afraid of projects for in the violence where he sister, lived, it, lived. When his with get whom he him rid made of gave Magnum the .22 he and to three bullets Harris.
Tariq during 17, also that evening testified of December 1992, two-seat, he encountered Harris alone in a At red car. that time, hijacked later, Harris told him days that he had it. Nine on 26th, Tariq’s December apartment Harris came to sister’s and Tariq Magnum Tariq given showed the .22 that had to him. According Tariq, to told Harris him that he had off “knocked some girl.” white petition
In his PCR Harris that trial contends counsel should Tariq’s used Investigator have statement to during Goldstein cross-examination and Beverly counsel should have called to police the stand to confirm that the Tariq. had beaten Defendant (Scully) trial provide states that counsel failed to a credible reason for his Goldstein, ineffective cross-examination and for not calling testify. who was available to Analysis
2. and Conclusion
Defendant’s ineffective assistance claim must overcome
“strong
presumption that counsel’s conduct
within
falls
range
professional
assistance,” Strickland,
wide
reasonable
at
supra,
ance. Ibid. mind, that, during guilt phase of that in we note
With trial, anticipate prosecutor the defense’s tried sting exposing cross-examination Tariq and weaken arrest, resisting Tariq’s charges trespass, for mari pending charged receipt with of stolen juana possession. also was He Ultimately property riding Huggins’s car. he received addition, pending charges. of his as result probation for all Thus, behavior, juvenile facility. placed in a on other he was Tariq he prosecution had admit that had direct examination the police interrogators. He at first completely not been honest interviews, including the during initial two one affirmed that January 13, 1993, given Harris a he not reveal that he had did Indeed, being up,” he also was afraid of “locked gun. because he gun police showed giving Harris the interviewers denied him. *43 it lengthy, not but was Consequently, was cross-examination 183, I, A.2d supra, N.J at 716 458. “devastating.” Harris January Tariq during he still was Scully confirm that had resolved, waiting pending charges would to see how his be got spoke police in he into additional he to the after in the “situation” he law enforcement that resulted difficulties with facility). juvenile to a (presumably, confinement was then marijuana Furthermore, Tariq he on cross that smoked admitted 17, 1992, everyday, including December and December on school, drugs. sell attending of he would and smoke 1992. Instead Tariq’s throw on Scully attempted to doubt Defense counsel also never had gun. Tariq After stated that he of the identification ability one, Scully questioned his life gun seen a in his before twenty-two guns, from other distinguish it from other let alone to Magnums. caliber Scully believed he hearing, testified that he
During the PCR goal damaging Tariq’s accomplished his cross-examination had credibility. stand, Tariq Scully took planned Before the had allegations cross, and, beating to on hearing, use at the PCR Scully unfolded, examination Tariq testified that as direct he stay plan. decided with his
Scully investigate Tariq’s further testified that he did being by police. claims of beaten He discussed them with Gold- evaluating stein and considered whether to them. In use their usefulness, potential he looked at them the overall context of Tariq’s explanations statements: the different for his nose-bleed- ing interview, more-than-one-year at the end of delay the first made, allegation before the allegation and that the was made only throughout Tariq’s once investigators. statements to When directly why asked Tariq he did not cross-examine about the beating allegation, Scully pointed to the lack corroborating expected He Tariq evidence. the State to ask on redirect whether any complaints department he had filed police with the or in court. evidence, Scully corroborating Without believed that the State Tariq’s would be able to single Scully’s discredit recantation. view, it would an have been “error proportion of immeasurable up.” bring [those statements] attorneys us, Scully’s
As PCR contend explanation before not immune from Scully paint criticism: If Tariq wanted to as a liar, why State, redirect, should it matter if sought to show being Why that he lied about police beaten officer? not let expose Tariq Notwithstanding State as untruthful? criticism, Scully’s fell range decision within the wide of strategy available counsel.
Scully highlight Tariq’s wanted to gain motive to favor with the (his police pending charges) explain why implicated he Harris. Scully allegations police Had raised beating, of a that would pitted Tariq’s against police, have interests a tactic to be *44 avoided, Scully Further, Scully reasonably as confirmed. had to worry jurors options: that have would seen two either believe that Tariq Harris, implicating was beaten into Tariq or believe that lied getting jurors about The perceived Scully beaten. could have as beaten, Tariq that attempting to admit that he was and have portray Tariq as a strategy would his other efforts overshadow protect cocaine-using, crack-dealing, seeking to him- delinquent, liar, jurors might Tariq conclude that was but the The self. Tariq’s jurors think real lie was the fear was that would defense’s Scully that beating allegation. reasonably concluded the better Tariq’s credibility facts his strategy was attack about charges. pending character his
Scully’s apparent impeaching from the strategic decision points information it could that the State out have used complain Tariq police months to of a redirect. waited sixteen testimony statement, beating, his his 1993 direct matched voluntariness of his 1993 Tariq and his mother attested the If counsel his mother about her statement. defense had asked bruised,” “bumped and the State could have Tariq claims that was previous Tariq’s her about fre- confronted with her statements bleeds, Finally, highlighting nose cocaine use. quent jurors that questioning have informed no formal State’s would Ayers, only complaint had made and that evidence been brief, alleged beating was in Goldstein’s police of the contained report. Applying standard of review that we two-sentence must, range Scully’s within we that decision was conclude satisfactory investiga- competence and was on a professional based has established Accordingly, tion. we conclude defendant respect Tariq’s cross- performed deficiently in that trial counsel examination. Ranfone and
D. Decision to Call Castellano trial ineffective assis argues Defendant counsel rendered seeing by calling who tance two witnesses testified disappearance. Huggins’s ear hours of Defendant within two her only testimony emphasizes significance of because “the Huggins’s in Ms. involved direct evidence” that defendant was I, testimony supra, Harris killing (quoting of Dunn 458). establishing other evidence 716 A.2d The N.J. *45 possession Huggins’s of and ear ATM card came through testimony youths of several had who criminal records. any youths, The defense’s was that those theme of or Dunn herself, could have been the killer.
Defendant that now contends trial counsel deviated from that strategy by calling “independent” testify two witnesses Huggins’s defendant in car disappearance, two hours after her supposed and that the of disrupting benefit the State’s timeline by outweighed prejudice was far he suffered from the women’s They “only testimonies. were the witnesses without a motive claims, fabricate,” they possession he and established defendant’s Huggins’s testimony any car at a time earlier than had State Indeed, argues, witness other than Dunn. defendant respect one testimony Carmen Castellano’s was consistent with Dunn’s testi- mony that she and defendant drove to Cortlandt Street in Trenton bury Huggins. to obtain shovels to counsel Had consulted with him, says objected he calling Mary would have Jo Ranfone and Castellano. Background
1. explained Defense counsel Ranfone Castellano were credibility called to undermine Gloria Dunn’s and her account of jury December 17th timeline. Defense counsel wanted the Huggins believe that was seen car alive her on Cortlandt Street morning. with Harris According around 11:15 a.m. that to Dunn’s account, Huggins was never in the car cabin on Cortlandt Street, indeed she would not have been alive that late in the morning of 17th. December 18th,
Ranfone testified between December 10th and driving she saw a shiny black man with a white woman a “red a.m., ear” tying day sometime between 11:15 and 11:30 the time of job-related direct, to a On task. she described the black male as “mustache, having fairly complexion, medium to dark awith long nose.” She described the looking white female as or “sad angry, pale.” cross-examination, prosecutor On elicited very through questioning that Ranfone had little time to look many closely passengers, and that at the car’s of the details she clothing people in “remembered” about features and worn really images perceived through the red car were she the media police photographs. *46 17, 1992, Castellano testified that on December around 11:00 a.m., neighbor’s Harris—driving a she saw her son—Ambrose passenger. small car with a white female She stated that red Street, ar- parked Harris near his mother’s house on Cortlandt gued passenger, and car. direct and with his then exited the On cross, precisely why on could not confirm she knew Castellano that December 17 was the date of her observations. She recalled 12th or 13th of that her father went to Puerto Rico around the December, alternately that that her observations were but stated redirect, she made either before or after her father left. On Huggins acknowledged that she did not was the know whether in ear. white woman she saw the Analysis
2. and Conclusion require
This claim does not extensive discussion because performance is no that counsel’s fell below there basis conclude objective by calling Ranfone and an standard of reasonableness only testimony Castellano. Not did their conflict with the timeline Dunn, they provided by purportedly the content of what saw testimony. conflicted with her Harris, placed Huggins
Dunn in the car alone with let never driving him. Dunn that alone down Cortlandt Street with testified car, sitting Huggins in the of the she was when was cabin lap. Ranfone nor Castellano observed blond Dunn’s Neither Furthermore, Hug- anyone’s lap. Dunn that woman on testified gins only in from time she was abducted was the car’s cabin until first to the deserted area under the Southard their visit Bridge early morning, that before 11 a.m. Street well concerning prosecutor’s arguments jury Ranfone and The that defense counsel Castellano underscore our determination calling prosecutor them. The not unreasonable found their testimony argued jurors troublesome to the State’s case and question reliability testimony. should of their her summa- tion, jurors she asked the not to believe that Ranfone and Castel- Huggins. lano saw She said these witness were sure of “[n]ot observations, they descriptions what date” made their and their Thus, matching.” argued they prosecutor were “not conjured descriptions they being their “after read of Kristin ear, missing, photograph and of [and] saw her her read this newspaper.” arguments “strong pre-
Defendant’s PCR
do not
overcome
sumption”
perform-
of reasonableness to be accorded to counsel’s
Strickland,
supra,
ance.
E. Cross-examination of Gloria Dunn argues
Defendant next counsel’s cross-examination of Dunn Gloria failed to confront Dunn with his claim that Dunn was trigger-person. argues Harris also that counsel failed to use impeachment disposal respect effective material at their of among multiple descriptions inconsistencies Dunn’s of the relevant example, events. For report defendant contends that Dunn once time, kept gun ed that he in his waistband the entire but on occasion, placed gun another she stated that defendant on the car. Analysis
1. argues in allegation As the State its counter to this of ineffective assistance, testimony Scully’s guilt-phase review Dunn’s and of summation reveals the weakness of defendant’s claim.
Scully credibility launched a cross-examination attack on Dunn’s reliability testimony. and the repeat her He had Dunn that she reported many testified to and critical “facts” that she never told police initial notably, her statements. Most she did not September until rape mention 1994 that a had occurred. She also repeat alleged did not Harris’s stated intention to kill a white victim, victim, spare January but to Scully’s black until 1996. strongly suggested examination that Dunn was motivated to con- jure those and gain plea other “facts” in order to a favorable bargain prosecution. Despite helping Huggins with the when so, opportunities she had to do Dunn testified that she “cared Scully’s about” Kristin. suggestion cross-examination mocked the testifying any Moreover, that she was Scully’s such reason. attempted expose cross-examination throughout inconsistencies evolving Dunn’s narrative about December 1992. For exam- ple, jury he had Dunn tell the that she had lied about certain (She finally police details when rape. she did tell of the first time). reported falsely that she was inside the car at the She signed February admitted that she her 1993 statement even though it contained false information about the location of a passerby, baby, Huggins banging with a who heard from inside And, Scully’s questioning trunk. emphasized that one of professed letting Huggins Dunn’s reasons for not trunk out temporarily when Harris sight, was out of was because trunk jammed, despite subsequent ability open get Harris’s it to Huggins out.
Scully making also succeeded Dunn waver on whether she robbery ever point, abandoned her intentions. At one she testi- changed seeing gun, fied she her mind on Harris’s but later robbery” Huggins admitted that she was “still in on the even after Despite saying planned was forced into the trunk. still she robbery, depicted commit the she nonetheless herself as Harris’s *48 kidnapping second victim.
Scully repeat also attacked Dunn’s character. He had her dealer, drug robbery she was a that she intended to commit resell, convicted of buy drugs to that she had been to more order fraud, did not live that she had minor children who welfare her, support. to whom she owed court-ordered but person transcript how difficult the cold trial reveals Even prior police Scully asked to look at a Dunn could be. her When “No, statement, I to it.” Dunn responded, don’t want read she went “back to say they Scully not demanded that also to get because she had never been Cortlandt Street shovels Street, Scully juncture to and she instructed at one Cortlandt court. “[g]et point,” drew comment from the trial to the which Thus, summation, jurors Scully ask the in his was able to “anybody in world Gloria Dunn what to consider whether tells do or what not to do.” did not
Finally, despite defendant’s claim that counsel accuse being trigger-person, Scully suggestion did make that Dunn of which, Scully questioning, asked through a line of at the end Dunn, anybody, right?” kill “You didn’t finding this was Kristin—Kristin, And were interested them because Q: you bothering months that—but weren’t interested so bad over these three you you were any reward, you? just get ground. I want no I wanted her to out of the no,
A: don’t money, Zarling at the conclusion of direct entered testimony, you Mr. said Q: you your agreement to tell—to tell the correct? truth, into an with the Prosecutor’s Office agreement right I enter into an A: It’s that I tell the truth. No. didn’t only just through anything. I’m here to tell the truth what happened. agreement, in this still be here So if never had been involved Q: you plea you’d telling us the truth today? A: course I would tell truth. Of And— Q: jail. anything I’m in I to hurt wouldn’t I tell the truth?
A: didn’t do her. Why going going who it ain’t to tell. he told me he ain’t to talk. The did Because person nothing. He told I’ll tell them all me, people Everything told us because were truth, here Q: you’ve today you known, concerned about Kristin and wanted the truth be correct? you getting A: it’s the truth. wouldn’t I be concerned about Course, Why somebody in front of face? I have the heart to shoot I never killed killed don’t my nobody. nothing I like I ever before. Why before. never nobody experienced experienced wouldn’t I? right? You kill didn’t Q: anybody,
A:
I never killed nobody.
You’re here
Q:
not to
today
help Kristin,
help—
A:
I’m here
to tell the truth.
I’ll
it
today
leave
like that.
Nothing further.
Scully:
Scully’s questions were laden with
asking
sarcasm.
Instead of
her
point blank if
Huggins,
she killed
argues
as defendant
legally
now
required,
Scully chose to confront Dunn in a different manner.
approach
His
objectively
Further,
was not
Scully
unreasonable.
argued in
perhaps
killer,
summation that
Dunn was the
and that
suspiciously
protested
she
had
police suggestion
too much to the
pulled
trigger.
she
Scully’s theme in summation
only
was to show that the
evidence
rape
of a
being
and of
triggerman
Dunn,
Harris
came from
(i)
(ii)
and that
Dunn was a liar and
none of the other evidence
testimony.
corroborated her
Counsel
her
recounted
inconsisten
cies,
details,
report
failure to
crucial
please
her reason to
prosecution, and her
drugs.
previously
involvement with
We
found that defense
credibility
counsel “attacked Dunn’s
...
thor
oughly” and
every
“undermined
at
stage
guilt-
[it]
almost
of the
phase
I,
trial.”
supra,
Harris
2. Conclusion deficiency The accusations of in trial counsel’s cross-examination of Dunn negligible light are Scully’s effective on attacks credibility. Dunn’s pressing Not Dunn on other minor inconsis exactly tencies—such as gun pants where defendant’s were positioned during rape—does push Scully’s cross-examina performance tion objective “below an standard of reasonableness.” Strickland, supra, 687, 104 466 U.S. at S.Ct. 2052. Investigation
F. Competency into Defendant’s Defendant contends that trial counsel failing was ineffective for investigate his competence mental at the time of the offense and argues competent defen- Specifically,
of trial. presentation adequate of his participate “to in an dant able defense,” long says his N.J.S.A. citing 2C:4-4b(g). Defendant trial, history, and the hostile psychiatric his irrational behavior developed him and counsel cast doubt relationship that between Furthermore, criterion. he contends that whether he met that *50 testify suspect rights to and to allocute are because “waiver his competence.” [his] dubious of his in-court to Defendant cites numerous instances behavior irrationality: his show (cid:127) during hearing, “spitting a defendant was all over the On March 14,1994, pre-trial At him and to on the him, him, wall in front at chairs behind next the place: in him.”
floor front of (cid:127) go judge, Judge “Now, cracker, said on over Schroth, there, He to the pre-trial just doing bigot. You know You’re work. white racist what is. the devil’s you you You no laws that I’m My You tell me I have honored why spit. respect. and not sit ancestors did down and decide forefathers, understand, any you my laws. You racist?” that, understand you (cid:127) and court, On Harris refused to come to instead “crawled back July 13, 1995, harm him. bed and afraid that a corrections officer would covered up,” supposedly n Judge During Judge and tried the desk, Harris “tweak trial, spit Delehey’s exhibiting finger. during voir dire by little his middle bit” (cid:127) right entering after the told Harris to 1996, courtroom, On the court 13, February got Harris “I it off sit down and be And responded, already. my [penis] quiet. get if hurt too. can see can me a doctor that.” know, you You you (cid:127) dabbing testified, father Harris mocked his under While victim’s sympathy by his handkerchief. own with his eyes repeated warnings despite that points Defendant out counsel’s deliberations, jury’s his affect continued conduct would he engage disruptive behavior. addition, long history. psychiatric relies As defendant on his youth, diagnosed schizophrenic psychotic. as and defendant Hospi- age Psychiatric He was committed thirteen to the State counsel, Dougherty, tal as “insane.” Dr. Edward retained trial possibility was a of an examined Harris and concluded that there facts, organic thought processes. Despite impairment of his those regarding testing defense counsel failed to ask for additional his competence.
Finally,
argues that
defendant
trial counsels’ attitude toward
him affected the decision not to
further
order
examinations.
“despised
Defendant
claims
Call
[him]
doubted
his
pathology
legal significance.”
behavior was
result of some
disputes
The State
the characterization of defendant’s behavior
question
as
competen
bizarre in the sense that
call
would
into
cy.
State,
According
intentional,
to the
defendant’s behavior was
express
court,
and served to
prosecutors,
his disdain for the
family. Furthermore,
Huggins
neither trial counsel nor
provided
Dougherty
any
Dr.
indication that
incom
defendant was
Lucas,
73-74,
(1959)
petent.
37,
See
v.
State
N.J.
152 A .2d50
(stating
position
that defense
are in a
counsel
better
than trial
court
gauge
competency). Finally,
their client’s
the State
distinguishes defendant’s behavior from other behavior that raised
legitimate questions
competency.
about a
exam
For
ple,
Missouri,
Drope
162,
896,
v.
420 U.S.
95 S.Ct.
43 L.Ed.2d
(1975),
attempted
trial;
during
defendant
suicide
in Pate v.
Robinson,
(1966),
383 U.S.
86 S.Ct.
1.
prohibits
convicting,
trying,
N.J.S.A.
the
2C:4-4a
and sentenc
ing
capacity
of a defendant who “lacks
to understand the
[the]
proceedings
him
against
long
or to assist
his own
... so
defense
Sinclair,
incapacity
as such
endures.” See also
v.
N.J.
State
(1967)
(competency requires understanding
relation and time, to place (2) are he mental such that comprehends: That his elementary processes
(a) justice charged offense; is in a court with a criminal That he of (b) judge is a on the bench; That there
(c) who to convict him of a criminal is a will try That there prosecutor present charge; (d) against charge; him that That he has a who will undertake to defend lawyer (e) the his mental the facts he be to tell to best of expected ability That will alleged surrounding committed him at the and where the violation was time place right the not to testify; if he chooses to and understands testify (f) jury as to or a evidence adduced may That there is be present pass upon guilt charge into of such that if should choose to enter or, plea or innocence he guilty negotiations guilty, of a or to that he the consequences plead comprehend knowingly, intelligently, those able and waive and that he be plea voluntarily rights guilty are waived such a entry plea; which upon (g) of his he has the in an adequate presentation That ability participate defense. court, being trial
Defendant’s statement before convictions, non-capital that he sentenced on the demonstrates 4b(1) through outlined in subsections met each of criteria 4b(2)(f), pertain he is which to a defendant’s awareness where Specifically, against him. proceedings and the nature of that: record reveals n (“Number judge. Judge, Harris to the I find one, your addressed comments 2C:4-4b(2)(b) bench.”); judge disgrace here to the see as a a N.J.S.A. presence (defendant bench). judge on the must know there is a n against argued, He him. He is to of the evidence “Who disputed reliability Huggins [Dunn] that that did that if saw know, it?”; wasn’t say, you person coming, him car that was door; she would have locked her the evidence of rape Huggins; the evidence did show he shot see N.J.S.A. untrustworthy; -4b(2)(a), -4b(2)(f)
2C:4-Jb(1), (requiring that a know he is and where him). against charges are there (cid:127) deciding (arguing jury jury He his fate that “this here understood 2C:4-4b(2)(f) (defendant fair”); is not must know role ... see N.J.S.A. system jury). n goal (arguing was to have him convicted that the Defendant knew prosecutor’s *52 just Huggins that is naive to believe the prosecution; family prosecutor (defen 2C:4-fb(2)(c) f—g self’); “want[ed] to make a name for his see N.J.S.A. him). know there to convict dant must prosecutor (cid:127) claiming in fact, the death is administered he com- penalty arbitrarily, the moral blameworthiness the acts attributed to him to those of Gloria pared Dunn, and others. Jeffrey Dahmer, remaining requirement competency The is that a defendant “participate adequate presentation must be able to in an of his 2C:4-4b(2)(g). hearing, defense.” N.J.S.A. At the PCR when cross-examined, Tariq asked whether Harris how knew would be Scully stated defendant “saw the entire file.” direct The Scully examination of continued: [defendant] Did discuss with Q: ever decision to the cross- you your prior
examination not to ask— during A: I discussed decision that we made the course the trial at every length Mr. with both Harris and with Mr. and with other in Call, individuals many office. defender’s public Judge discussing what was in statement Q: Scully, your purpose Tariq Ayers’ with Mr. Harris? everything. A: I I discussed discussed the entire with Mr. discovery packet Harris. asking And I’m to those Q: statements, what was you respect particular your discussing in them with Mr. Harris? purpose Discussing during A: what we could to be the expect proffered testimony state’s and the manner in which case, we would our cross-examina- our, approach tion as to each witness. talking right? Because we’re about the
Q: now, defendant’s nephew A: Correct.
Although
exchange Scully
being
this
was not
asked about the
competency specifically,
apparent
issue of Harris’s
it is
that Hands
attorneys
questions
communicated with his
and answered
about
testimony
expect
the kind of
from
Spivey,
State witnesses. Cf.
supra,
(describing incompetent
65 N.J.
issues that needed addressed.”5 incompe anything specter” because about Harris “raised “prudent tency, any type major prosecution, it is but because any ... aren’t ... client examined to make sure there have the issues, any competency issues or other mental-health-related as noted, Dougherty possibility Dr. of a issues.” As mentioned but, organic problem, neurologic impairment or after consultation counsel, Scully appellate Call and decided it was unnec with their essary request competency further assessment. PCR-testimony, Scully’s, “really like indicated that he did
Call’s any competency.6 Harris’s Call stated that not” have doubt about opinion meetings on his and conversations he formed based life, Harris, Harris’s with on the information he read about entire including correspondence, and on communications to previous attorneys. prior his He added that Harris’s letters to certainly insight problems.” into the of his counsel “showed nature again questions he had about Harris’s When asked whether competency, stated: Call meeting [on I not. Mr. our initial with Mr. Harris Harris, did based on No, 1995) legally I felt that he was and that is not January ], certainly competent, high a hurdle in the State of New but Mr. Harris was Jersey, clearly
necessarily legally as to his the information that I had status, mental based competent upon concerning his criminal received to date past history. Call added that he received letters from Harris that showed his hearing. into at the abilities. Two were marked evidence PCR one, attorneys injunction against Harris asked his to file an columnist, stating prejudiced that the relevant columns Trentonian letter, jurors. potential In the same defendant mentioned that he prison provide paralegal requested that officials a skilled for him. Dougherty. does contain a written from Dr. The record report given argument That PCR counsel's that Harris testimony response did not understand the of the trial court's sanitization of his record. implications counsel, "Was he to stand trial?" PCR When the PCR court asked competent Judge." issue, counsel "We have not raised his as an competency responded, Last, respect we have defendant’s contentions of his child- However, diagnoses schizophrenia psychosis. hood both experts during phase agreed penalty defense who testified diagnoses wrong. those were Neither Dr. Gruen nor Dr. psychotic; diag- Greenfield saw evidence that defendant was each child, him a conduct nosed disorder as based on the records And, *54 correct, they diagnoses if reviewed. even had been competent issue is whether Harris was as an adult.
2. Conclusion supports The record trial counsels’ conviction that Harris was competent. soliloquy being His court to the before sentenced on non-capital counts demonstrates that Harris knew his where- abouts, proceedings charges, nature of and of the and the statutory of the different All role actors. factors were demon- Therefore, reject argument strated. defendant’s we counsels’ performance objective fell below an reasonableness standard be- they investigate competen- cause not did further into defendant’s cy- Alleged Respect Competency Trial in
G. Court Error by failing Defendant also asserts that the trial court erred to competency hearing Although its order on own motion. claim,
technically an IAC for the same reasons that defendant argues investigated competency defense counsel should have to trial, ancillary argument stand he makes the that the trial court required competency hearing was to order a on its own motion. notes, fact, penalty phase Defendant that before the commenced commitments, learning prior trial and civil might mentally speculated that one infer that defendant was court ill at the of trial. time Analysis
1. court, motion, N.J.S.A. 2C:4-5a authorizes a on its own “appoint qualified psychiatrist report at least one examine
upon the mental condition of the defendant” whenever a defen
Spivey,
proceed appears questionable.
also
dant’s fitness
See
37,
supra,
(noting
appeal,
clearly
appears
incapa-
standing
trial.
ble
added).]
(emphasis
[Lucas,
inquiry
[Lucas,
50.]
The United States
Court
simi
larly, stating
“judges
depend
must
to some extent on counsel
bring
Drope, supra,
[these] issues into focus.”
Thus,
attorneys
position
because defense
are
a better
question
competency, Spivey,
than the trial court to
a defendant’s
Lucas,
supra,
(citing
supra,
Defendant does not “clear competency to meet the a “bona fide doubt” that he failed raises counsel never set forth N.J.S.A. 2C:4-4a. PCR standards statutory any of specifically Harris failed to meet stated how correspon- competency and we view Harris’s written criteria for undermining pre-senteneing soliloquy to the court as dence and therefore, argument reject, that there defendant’s claim. We sponte court’s failure to sua order was error the trial competency hearing.
Y. Penalty claims: Phase IAC performance alleged in the of counsel turn to the errors We now penalty phase. asserts that each error during the Defendant sentence,” integrity of the resultant death doubt on the “cast[s] nullified his entitle- cumulative effect of the errors and that the advocacy of a life sentence.” ment to “true Mitigation Investigation Adequacy A. respect arguments in
Defendant makes several broad-based mitigating related to investigation of evidence adequacy of the specific points also deficiencies his difficult childhood. He *56 latter, respect PCR coun- investigation performed. of Nardone, mitigation special- Lois a social worker sel enlisted ist, investigate availability mitigating of evidence not found Fairchild, for trial. Nardone persons interviewed Sheila as aswell witnesses, penalty-trial who could have been as including called father, mother, brother, stepfather, defendant’s of one grammar teachers, Dougherty. school Although and Dr. turn, claims are addressed in we note at the outset the State’s repeated performance penalty phase counter to each: reasonable, counsel produced any Call was and defendant has not substantially evidence that would have jury’s affected delibera- tions. repeating
It considering bears that we are defendant’s claims de each, respect although novo. In we must consider the testimo- ny hearing, of Call and others at the PCR we note at the outset respect any we do not base our conclusion claim on an credibility. assessment of Call’s Defendant’s ineffective assistance hinge case does not testimony on an assertion that Cab’s PCR was untruthful; uniformly defendant’s ineffective assistance claims performance objectively assert that Cab’s reasonable. The PCR record abows us to make that assessment. Challenges:
1. The Broad Based
feelings
a. Call’s
towards Harris
dispense
We first
suggestion
PCR counsels’
personal feebngs
Cab’s
about
abbity
Harris interfered with his
investigative
fulfill his
Despite
duties.
PCR counsels’ assertion
him,”
day
Cab “didn’t trust Mr.
[from]
Harris
[he] met
and that Cab described Harris
degree,”
as “anti-social to the nth
argument
we find this
meritless. The reasonableness of counsel’s
depend
personal
assistance does not
feelings
about defen
Strickland,
688-89,
dant.
supra,
See
b. Time for provided ineffec- support his claim that counsel As further assistance, having only ten points to Call’s had tive with prepare, during which time he was overburdened months to capital complex criminal case. trial and a another Scully the case in dispute that Call and took over There is no 1994,7 prior had not an point at which counsel conducted the fall investigation. Jury began in and the trial selection October Call, According January in Fairchild never commenced 1996. history for preparation time for of a social asked for more defendant, although Nardone that “there wasn’t she later told “already begin” had a trial was to and that she much time before Citing assigned case. her work full load” when to Harris’s ease assistance, load, Fairchild problem, and lack of a serious health “definitely more time.” could have used told Nardone she being hearing, Scully unimpressed with testified At the PCR attorneys previous when he received the Harris’s work done file, adequate time. Call he and had but asserted that Call adequate team did have time similarly that the defense testified addition, did ask for an reveals that Call prepare. the record However, cases. Call’s because of his other extension of time plea and he matter ended were lifted when one other burdens other because of representation was removed from conflict. repre- noted, received must determine whether defendant
As we representation If objectively Call’s that was reasonable. sentation standards, then his objectively reasonable of defendant fell below However, explanation. prepare might be an inadequate time to original Hamilton, Harris’s attorneys, testified that Abatemarco Scully great the case because Harris displeasure were removed from expressed causing a in their them, relationship. breakdown only prepare that Call had ten months to is not outcome determi- application. argument native in analogous this The is to defen- previous argument. dant’s Defendant contends that Call’s efforts were minimal because of his attitude towards defendant and However, inadequate question time. the actual that we must efforts, fact, consider whether Call’s were so minimal that his performance objective fell below Accordingly, reasonableness. we *58 alleged specific turn to penalty phase. deficiencies 2. participation Efforts to secure mother’s mother, Mattie, him, Defendant’s testify did not for not to even plead for his only life. Harris notes that Call met once with his mother, and “ruin[ing] any blames Call for chance for [her] cooperation by immediately confronting her with accusations of abuse.” points The State to the fact that Call did meet with mother, she, defendant’s brother, and that as well as defendant’s testify refused to for defendant. The State also notes that Mattie similarly uncooperative was with Sheila Fairchild. Background
a. Mattie, Call testified that when he met her demeanor was immediately “hostile.” She “announced her coop- intention of not erating.” Although eventually cooperate she did providing biographical information, testify she refused to on defendant’s behalf. Call stated great that “she had concern about her church it, finding friends out about her appearing paper,” name in the eventually she “terminated cooperation her According with us.” Call, stated, to you’re do, Mattie “I going you’re know what to going paint mother,” to me as the terrible and she was intent on letting not happen. that otherwise, Call tried to convince her telling goal her that his emphasize at trial would be to problems family’s resources, and the lack argument but his met stated, with no success. As Call experience, based on many his willing “mothers are to throw say, themselves on the sword and yes, I child; was a terrible mother” in order to save their however instance, unwilling an simply to do so. As in this Mattie tactic, psychological asked to submit Call Mattie alternative trial, those and he retained testing, hoping introduce results that purpose. She refused Dr. Cooke Dr. Sadoff and both request as well. only
Further, why personally with Mattie he met when asked “abundantly clear she had once, made it stated that she Call testimony her son.” His revealed helping no intention defendant’s need explicitness he to Mattie shocking put with which her, “you testimony (telling might as well stick a needle for her us”). help right you’re going if arm now your son’s Analysis and Conclusion b. objectively abundant evidence record contains
This and steadfast refusal difficult nature Mattie’s demonstrates penalty-phase her life. in her defense assist son’s uncoopera testimony, Mattie became Sheila Fairchild stated that interviews, refusing a third with Fairchild two tive after attorneys. if Mattie son’s When asked refusing to meet with her reason, responded: specific “No. She Fairchild gave her *59 her, I why. pressed her And when why. me I asked tell wouldn’t to phone.” extent she was able nasty on the To the got rather she during Mattie, “very as resistant described her interview Fairchild disclose, with [interviews], very share herself reluctant to those me.” certification, that she “inter- she states Lois Nardone’s However, although she details mother. defendant’s
viewed” what, interviews, if does not state her she content of other her, in was successful or that she even anything, Mattie told contact note counsel did Mattie. that PCR speaking with We had have testified father to see if he would biological inquiry would presume that a similar him. We trial counsel asked Nonetheless, although made mother. have been of defendant’s testimony from numer- court to hear the PCR PCR counsel asked witnesses, request testimony there was no that court ous hear from Mattie. testimony help
Given Call’s about Mattie’s to in refusals case, general of corroboration that refusal and her lack of cooperation, trial provide we conclude that did not counsel defi- testimony cient assistance in his to efforts secure or assis- other tance from Mattie Williams. participation
3. Failure to secure brother’s evidence, Defendant through Nardone, submits Lois that his (a.k.a. (hereinafter brother, Harris) Jerry “Jerry”) Williams James testify willing on his behalf. Background a. (in Nardone, Jerry
According prison)8 told her that “he happy” testify would have been during his brother’s behalf penalty phase jury to tell the about defendant’s zombie-like state when psychiatric hospital, confined aspects about of childhood, defendant’s terrible and about he how loved his brother. proofs support
Defendant’s this claim are countered testimony Fairchild’s penalty phase, at the which was consistent testimony, Jerry with Call’s PCR help had refused to brother’s case. Fairchild said, testified defendant’s brother “my testify mother I Ambrose.” and will not for According to Fairchild, Jerry’s explanation was that he did want defendant family down,” explanation to “take the an coincided testimony Jerry’s Call’s about help refusal the defense. 8 According to the website New of the Corrections, Jersey Department defendant’s brother has been in 1991 on four counts second- prison since degree eligible and two robbery offenses. He is weapons-related parole *60 New http://www.state.nj.us/correc- 2013. Corrections, of Jersey Department n (offender Harris”). tions of Williams,” search a.k.a. "James Arthur "Jerry Analysis b. and Conclusion testimony, Jerry’s potential as evaluating the worth report, we note that its overall effect would
contained in Nardone’s had similar previously because he made have been cumulative jury. conveyed them and she statements Fairchild (i) Jerry their was an Specifically, told Nardone that father (ii) drunk;” his Am “embarrassing that he visited brother when disturbing psychiatric hospital, it because he was in the brose from medi adults in a state” with the and was “zombie-like (iii) rejection cation; experienced intense from and Ambrose that jury conveyed all information to the peers. Fairchild his during penalty trial. specifically things Jerry told that were two Nardone
The protected testimony Ambrose him part of Fairchild’s were that they very young, and that he against physical when were attacks relationship continue their much loves his and desires to brother prison. recognize importance such statements in even We They convey that has jury. made to could when a redeeming qualities enjoys and desire in that he his brother’s love 295, 432, Loftin, 146 N.J. relationship. a See State v. to continue I) (1996) J., (the (Handler, (Loftin impact dissenting) A.2d 677 family to the on defendant’s is relevant potential execution “[t]he an contribution “uniqueness of defendant as individual” family ... ... to his or her connection the defendant makes mitigation.”); of his or her character and relevant indicative Using the King Norgard, Families? & What About Our accord Family Mitigat Members as a Impact on Death Bow Defendants’ Hearings, Penalty Sentencing 26 Fla. St. ing Factor Death (1999) (“If mitigation ... evidence is to allow U.L.Rev. defendant, way surely jury get complete picture of the impacted people life is a relevant consider he has die.”). to live or ation to whether he deserves potential testimony from brother would assuming that Even willing- defendant, question as to his helpful to a remains be testimony. present. provide His at the of trial to such ness time *61 aside, to statement Nardone the record shows that at the time of Jerry provide testimony trial to declined for defendant. Besides Jerry’s unwillingness, Call’s recollection Fairchild testified penalty phase Jerry testify. time of to It refused is import difficult to to Jerry’s Fairchild motivation to he about willingness testify at help to the time of trial: was to she there prepare for a the case life sentence defendant. report Jerry
Defendant submits Nardone’s to show that would sentencing have testified at defendant’s trial had he been asked. But, regard report we Nardone’s as insufficient to undermine the testimony Jerry of Fairchild that resistant participat- was to ing in present testimony fully the case. Call’s consistent that recollection. Defendant has not shown that counsel were mitigation unreasonable their efforts to mount a defense. 4. Call Failure to Defendant’s Father argues Defendant that neither defense counsel nor Fairchild (Mr. father, Harris) Harris, per- interviewed his Peter James only phone son. His father received one brief call from the team. defense Defendant asserts that trial counsels’ minimal ef- testimony forts obtain his from father rendered their assistance
ineffective. Background
a. PCR Harris, counsel have submitted an affidavit from Mr. which contains he Lois what told Nardone. Mr. Harris now Specifically, says attests he would have testified if asked. he jury he would “very have informed the that he and Mattie had troubled marriage,” young that she would leave her children alone during day, and that he “had reason to believe that was [she] prostituting up gambling herself make losses.” He attests that complained family his son members about abuse he received And, stepfather. from his defendant’s father states that he jury spare “would have asked life [his] son’s because [he] his love[s] son and think had a [doesn’t] he ever chance at a argues life.” thus that his father’s testi- normal Defendant [defendant], mony engendered sympathy for revealed have “would family likely ‘substantially by loved person him to be a ” jury’s affected the deliberations.’ Call, issue, testimony by primarily on this the State relies On essentially his notes. Call recollection refreshed whose spoke They indicated that he with Mr. read from his notes. *62 April and that Harris informed in March and Mr. Harris abused, his that he had no suspected that son was but Call he knowledge Harris told Call that his of it. Mr. also first-hand case get had him not to involved in the because doctor advised essentially, that, did not to problems, and he want his heart testify. Analysis
b. and Conclusion
(1) Deficiency prong hearing, testimony
Accepting at the PCR defen Call’s dant’s claim fails. Call testified: natural who left home at ... was the father
A: Peter Harris significant age—when contact him was had little to no with [defendant] and three, During he [defendant] 26, 1995, that. with on February after conference to Harris. Was in so and father, town, speak, indicated that his James Peter through sister, contacted his Christine Hellams. he was—could be father] on that this was March and [defendant’s date, 9th, I to Mr. Harris spoke good. I he indicated not so have heart I him how he was, when asked gout, and he have about in the would diabetes, world, every problem problems, our conversation. been about 63 as of did asked, Harris to Call that he not have Mr. indicated When testimony knowledge continued: Call’s first-hand abuse. during [defendant’s father] 19 of [a] conference April
And telephone case. He indicated he had didn’t wish to be involved the indicated that he really get since shouldn’t involved been advised his doctor he heart, a bad and had by upsetting. it would be too father] that ... did [defendant’s it clear simply And was abundantly point, to not wish testify. Furthermore, up Mr. did Call testified that Harris not show trial, any day fifty-day bolstering of defendant’s almost Call’s opinion of Mr. Harris’s lack of interest. credible,
We note that PCR court found Call but even any deference, granting finding without the PCR court’s we reach same provides conclusion because defendant no to reason testimony. clearly reading doubt Call’s Call from his notes during hearing, suggestion being the PCR and there is no ad- vanced that Call fabricated those notes. pursue any
Call’s not decision Mr. reason- Harris further was given relationship able what he knew about the between defendant Contrary argument, and his father. to defendant’s Mr. Harris “engender would not have sympathy been able for [defendant]” person by family.” “reveal[ him be a loved ] his Mr. Harris subject would have been abandoning cross-examination about family three, when defendant relationship and his lack of records, with defendant. Numerous as well as Fairchild’s inter- Mattie, defendant, views portray and defendant’s brother Mr. Harris as an family, alcoholic who did care about his and the documents depiction. submitted defendant confirm that *63 addition, potential In Call had other reasons to the doubt worth testimony of from Mr. If Mr. Harris. Harris testified that he son, trying loved his to person “reveal to be a loved [defendant] family,” his could State have cross-examined Mr. Harris about life, thus, brought his absence from defendant’s out that his feelings for his son do not anything positive themselves reveal given about relationship defendant of a absence them. between I, supra, (Handler, J., See at 146 N.J. A.2d Loftin dissenting) (noting family that testimony helpful if it demon members); family strates defendant’s bond with accord State v. Stevens, 162, 168 (1994) (impact 319 Or. 879 P.2d of execution family capacity shows “that defendant has the to be of emotion inference, juror al value to In aspect others. a could find an background of defendant’s character or justify a could sen death.”); of King tence less than Norgard, supra, & 26 Fla. St. (“If jury get a mitigation ... is to allow the to U.L.Rev. at 1146 defendant, surely way that has picture he complete of consideration to people in life is relevant impacted the his die.”). live he to or whether deserves
Further, by the in PCR defense this the records submitted time, objectively at not known to Call proceeding, albeit provide to not have been able that Mr. Harris would demonstrate convey that testimony. records defendant compelling Institutional not his mother did know the whereabouts Also, neglect of his through Mr. Harris’s father least 1969. argument that Mr. Harris’s family and undermine the defendant could have testimony potential be effective. He not had the to positive impact had a on his life. shown defendant did not talk to Finally, import it of little that the defense we find his communicated person. Harris Mr. Harris Call Mr. during a he did so strong not to be involved. That desire placed him not transform Call’s telephone that Call does call Moreover, defen- him into ineffective assistance. interaction with same counsel had prejudice for the reasons dant cannot show no testimony: Mr. Harris had of Mr. Harris’s doubt value conclusion, relationship with defendant. significant prong of Strickland respect satisfy failed to either has of his pursue further the involvement counsels’ decision father. testimony stepfather, of defendant’s
5. Efforts to secure ' Walter Williams contacting his counsel for not faults Defendant defense (Walter) simply anticipated denial counsel stepfather because allegations. abuse Background
a. penalty phase during preparation for Harris told Fairchild frequently engaged stepfather, who he afraid of *64 was wife, said and Walter never Mattie. Harris that he fights with his talked, really but “he knew that Walter didn’t like him.” He added his had stepfather mother instructed his to beat daily, responsible thus Walter too was for defendant’s Mattie, hand, childhood abuse. on the other told Fairchild that really boys. was not Walter involved with the Analysis b. and Conclusion
At hearing, why the PCR Call spoke was asked he never with explanation Call’s Walter. focused on defendant’s accusation that stepfather his was involved the abuse defendant received as a child. Call stated that the time learned he from the institution- possible al records of the abuse defendant growing suffered when already up, us, had you fact, “Mattie told know that—in I think actually spoke she press point with the at one and said that abused, something along Ambrose that line.” He contin- Williams, ued: “But neither Mattie nor I suspect do that Walter have, them, would they Williams either one of would have substan- history tiated of abuse.” penalty
At phase, cross-examination, prosecutor Fairchild asked about whether she interviewed Walter: You also Q: interviewed Walter not? Williams, did you A: I did not. No, You never
Q: to him? spoke I
A: No. asked to him. speak he
Q: Did refuse? A: he didn’t refuse. I asked No, Mattie if I could with her speak husband, and she he doesn’t talk said, want to to you. Now, Miss Q: how old was Mr. Fairchild, Williams you time that wanted to talle to him? age. imagine age, A: I know don’t I would he’s close to Mattie’s which would be sixty. thought And Q: you that in matter of this needed importance Mattie you Williams’ permission Walter Williams about a speak matter that involved his life? stepson’s A: Yes. *65 yourself? to to Walter Williams made an attempt speak So never
Q: you A: No. why she redirect, from Fairchild tried elicit defense counsel
On to talk with household any to the Williams visit did not make so. The her to do refusal to allow despite Mattie’s Walter counsel that defense he believed objected because prosecutor violent, believing could be Mattie to admit Fairchild wanted 1970’s. Such murder in the late knowing of her conviction ruling prohib- trial court’s testimony have circumvented would without of that comdction being informed iting jury from imposed on itself had limitation the defense up time opening aside, past is relevant strategy. That Mattie’s mitigation for its Fairchild, assessing in whether propensity for violence judging her unwelcome, up, at Mattie counsel, have shown should or defense Jerry’s door. that did Jerry told Fairchild Walter that also testified Call fairness, played in the role Walter stepsons. In abuse by a report school A 1964 stepsons is unclear. punishing his counsel, Harris indicates PCR psychologist, obtained confirmed and that Mattie disciplinarian a harsh called Walter the other On punishing defendant. participated that Walter Fairchild during with hand, conveyed pride an interview Mattie children, and that Walter disciplined her was the one who that she very with them. little to do had has failed significant that defendant most purposes, it is
For our willing say any to show what Walter evidence to submit substantially have it would could assess whether stand so we interview report of her Nardone’s jury deliberations. affected only “would says that Walter It uninformative. with Walter or both Mr. spoken with either happy to have Call/Mr. have been of defendant’s Finally, in the case as Scully Fairchild.” and Ms. testimony court hear mother, not ask the PCR counsel did PCR Williams, according to counsels’ brief. from Walter unreason- counsel acted sum, that trial is no evidence In there Mattie. their discussion pursuing after ably in not Walter Furthermore, provided any defendant has not information to the participation Court how about Walter’s the case would have substantially jury affected deliberations. experts
6. Interactions with defense raised, alleges the last this series of issues various experts deficiencies Call’s interactions with defense *66 experts. limited the usefulness of those Background a. complains
Defendant that did not experts Call meet with his and, moreover, person permit mitigation that he did not Fairchild, expert, Sheila to meet alone with Harris because he dangerousness. feared defendant’s responds penalty
The State did phase Call meet with the experts prior to testimony their and that he recorded the dates on spoke which with Scully he Dr. Greenfield. testified about Fair- attending meetings Indeed, child that occurred with counsel. only present Fairchild interviewed Harris with counsel is further meetings Finally, evidence of counsels’ with Fairchild. the State good contends that there was reason for decision counsels’ not to meeting allow one-on-one between Fairchild Harris: defen- violent, dant unpredictable person, is a even when incarcerated. (with During meeting one with present), Fairchild Call pulled pants scar, his down to her a allegedly show because he wanted to if see Fairchild was “cool.” Analysis
b. and Conclusion emphasized counsel hearing
PCR the PCR that trial counsel person experts, did not meet in with citing their retained Dr. as an example. Greenfield The record reflects that Call his experts, documented numerous communications with which include conference calls correspondence. and written Defendant explains why never we should conclude that trial counsels’ method of communication with experts perform- rendered counsels’ jury’s Moreover, not show how the defendant does deficient. anee substantially had affected Call have been would deliberations Gruen, and Dr. thus Dr. Scully person Greenfield met prong of Strickland. falling prejudice on the short also defi Furthermore, performance was not trial counsels’ Harris. alone with they not have Fairchild meet did cient because especially dangerous to women. found Harris testified that he Call only days history, and ten significant criminal had a Defendant separate murder, for four Huggins he was arrested after the kidnapping. Given assault and aggravated sexual incidents Fairchild, incident in which he “tested” character and the violent unreasonable. their defense does render counsels’ decision Newly documents 7. discovered as result claims ineffective assistance
Defendant later discovered records that were failure to obtain counsels’ newly discovered records He contends PCR counsel. mitigation presentation. in his would have assisted Background a. *67 that to find all request, Fairchild undertook
At defense counsel’s compiled years. formative She respect of defendant’s could she documents, in secur- overcoming numerous obstacles pages of 115 criti- long ago. Defendant now identifying from records ing and counsel has investigation because PCR team the defense cizes Hospital State from Trenton complete set of records secured a argue that by PCR counsel Fairchild. not obtained that were “civilly committed as was that defendant indicate those records addition, years In another old.” twelve ‘insane’ when he was sears on defendant’s documents newly childhood record found Harris was corroborating defense contention body, found documentation finally, counsel And PCR as a child. abused before defendant’s diagnosed with scabies week was that Mattie family birth, indicating filthy conditions which had that Mattie been found reflect records lived. Additional 474 during
arrested “drunk, Harris’s disorderly, childhood for assaultive conduct.” response, many the State notes that of the documents were
dated after self-imposed the defense’s cut-off mitiga- date for its Beyond that, tion case. argues the State the documents would substantially not have mitigation enhanced presentation. Many illegible irrelevant, records are or regardless, documents Scully found Call and adequately depicted Harris’s home life newly-found without the They documents. would be simply cumulative. Analysis
b.
(1) Deficiency prong question We turn first to the performance: deficient does counsels’ failure to complete discover the set of imply documents investigation that their objectively Wiggins unreasonable. v. Smith, 510, 521, 2527, 539 U.S. 123 S.Ct. 156 L.Ed.2d (2003) (“ ‘[Cjounsel duty has a to make investiga reasonable tions or to make a reasonable decision particular that makes investigations ”) unnecessary.’ Strickland, (quoting supra, 690-91, 104 674). U.S. S.Ct. at 80 L.Ed.2d noted, As trial counsel told Fairchild “to everything” find she could. surprising It is not experienced Fairchild difficulty finding records about defendant from through 1965. Mattie pointed Fairchild the direction of Clinic, the Child Guidance which Fairchild learned is Family now the Guidance Clinic in Also, Princeton. gaps there were in the record-keeping. Accord- ing Fairchild, some records at County Hospital Mercer were gone, microfilm, either or on small cards. She testified that she asked Hospital Mercer treatment, records of medical but was told that there were none. Psychiatric As for the Trenton Hospital records that feature in PCR argument, counsels’ transcript PCR reflects that Call had a letter from that institution stating that the records forwarded were the ones it had of *68 Ambrose Although letter, Harris. May that 18,1995, dated is not record, had reason to believe he testified that he part of the Call hospital. from that all of defendant’s records had by Call. disputed belief counsel the reasonableness PCR asked, you you complete “Why did think had the When Call there, physician orders in ... if there were no hospital records notes, records, anything,” responded that he he medication nurses’ were the records were Fairchild and assumed those relied on available, given lapse in time. Gruen and Green- significant it that Call showed Drs.
findWe Hospital. from Neither mentioned field the file the State Call, point who missing, a not lost appeared to be records there had Dr. or Dr. Greenfield “I believe if either Gruen testified: records, ... I would have might there be additional indicated public defender’s Fairchild and one probably sent Ms. any addi- investigators whether or not there were to determine Indeed, from the testified that the notes tional records.” Gruen “very were exhaustive.” Guidance Center First, noteworthy. report points Nardone’s two other We find attempts to locate relevant not criticize at all Fairchild’s does Second, on behalf defen- the certification submitted records. penalty Glazer, expert on death offered as an dant David failing defense, Fairchild or trial counsel does not criticize fact, found the before PCR counsel obtain the documents. documents, he reviewed the institutional certified that Glazer he jury, and did not indicate that to the he records submitted submit- lacking completeness. Later Glazer reports found the certification, docu- uncovered more after PCR counsel ted another certification, from criticiz- refrained In that second Glazer ments. them, stating instead that counsel finding for not ing trial counsel impact he believed and discussed “overlooked” that evidence have had. such evidence would attorneys why were able PCR are not informed
We than the Fairchild could not. Other find these documents when found, that Call there is no evidence the documents were fact that Fairchild was not any unreasonable decisions. or Fairchild made *69 permitted testify to hearing at the PCR because PCR did counsel provide attesting an affidavit testimony. the content of her hinge Our decision ruling, however, does not on that because by Fairchild was report interviewed Nardone and Nardone’s does investigation not criticize Fairchild’s into the documents nor does any insight it offer into the testimony. need for Fairchild’s On the present record, we conclude that defendant has failed to show performance by deficient Call for his failure to uncover all of the by documents now submitted PCR counsel.
(2) Prejudice prong Because we have concluded that defendant has not satisfied his responsibility to performance by counsel, demonstrate deficient we need not reach prejudice prong. Strickland’s We comment on the only purposes documents worth for completeness in this de novo review. by category. We address them
First, many of the “new” documents have no relevance to mitigation category, In case. this we include count- correspondence less uninformative requests records, basic forms, photocopies, permission unreadable slips hospi- to exit tal, records, drug and treatment and medical records about defen- dant’s hammer surgery. toe needed The evidence that giving Mattie had scabies before disposi- birth defendant is not tive of defendant’s assertion growing up squalor about in and filth. Indeed, newly other of the found reports documents are from providers health recording care ap- defendant had a clean pearance and habits.
Second, jury knew much of the information contained other February documents. A 1965 letter from a doctor at the Hospital State indicates that engaged many Harris fights, boy choked one scissors, and stabbed another with but like conveyed information jury by Dr. Gruen and April Fairchild. An reports document opinion of Dr. Litkey, a psychiatrist, Guidance Center that Harris was a “severe- ly mentally” ill child and needed institutionalization. But Dr. recalling very a document much like this one. testified to Gruen May wrote that the director of the Child Guidance Center problems, her had but would not defendant’s mother realized son hoped just helping; she her son would take an active role similarly reports “outgrow” problems. Fairchild testified passivity towards and her resistance indicated Mattie’s being him. involved with *70 general, many documents note Mattie’s failures as In of the new at trial were a But testified that the documents mother. Gruen “very poor mothering. The defense had complete” about Mattie’s Finally, portraying failure as a mother. ample evidence Mattie’s April state reports Hospital, dated and June from the State delusions, psychosis, and no hallucina- had no no defendant tions, “sociopathic personality disturbance.” Drs. but did have a diagnoses in the disagreed with other Gruen and Greenfield records, agreed a child but their assessments of Harris as those evaluations.
Last, Insanity” emphasizes of PCR counsel two “Certificates them, dating 1964. Presented with Call testified from October them to sure whether he would have submitted that he was not sniffing jury. that Harris was the Because the certificates reveal ten-year girl, old Call said he glue and had sexual relations with adjusting cut-off date of the defense have considered the would range. fall outside the PCR presentation to have certificates by day pointing out that present evaluation counsel faults Call’s jury glue sniffing and about Harris’s relations knew about the acknowledgment argument an young girl, but that with the already jury knew of those behaviors. Insanity compelling of not in and them- The are Certificates undoubtedly informed the prosecutor would have selves as the literally was jury that documents did not mean that defendant experts that defendant was The defense testified insane. by counsel stated that
psychotic, and documents found PCR other delusions, psychosis, or hallucina- did not from suffer convey Insanity was the most the Certificates of tions. The signator’s protection belief that others needed from defendant’s aggressive given finding behavior because the basis for the insanity behavior, jury was defendant’s bad about which the was told.
As for pertaining physical the other new documents abuse by child, suffered testimony defendant as a we note Fairchild’s beatings that Harris stepfather. received from his mother and jury Also the learned that one social worker described Mattie in very punitive However, 1962 as prosecutor with defendant. calling allegations effective at into doubt by of abuse exposing concluding Fairchild’s lack of basis for that Harris had any produced “tremendous scars.” The medical records at trial except showed no arms, evidence scars on defendant’s which Yet, could fights. question have come from multiple on this medical records many discovered PCR counsel document scars many parts body. other of his highlight PCR counsel also supports another document that allegations. abuse psychologist reported school Har- ris’s “attitudes of revenge against resentment and those in the him,” “feel[ing] home who beat and his might get that he like to even with them psychologist when he was older.” When the *71 confronted Mattie with defendant’s claim that his father was a disciplinarian, harsh Mattie said that Ambrose must have been referring stepfather. to his That newly last document is not discovered, as it is from the Trenton Public Schools and recounts choking the same and seissor-stabbing previously pre- incidents jury during sented to the testimony of Dr. Gruen and Fair- child. sum, only any documents that contained new information supported
were those that allegations by the abuse providing evidence of scarring, prosecutor extensive which the said was lacking. record, On this mitigation with the pre- extensive case defendant, by likely sented it is not present that the failure to additional prejudice evidence constituted sufficient to overturn this However, noted, verdict. as proven because defendant not has prejudice. performance, deficient we do not reach and determine Indeed, documents, producing aside from defendant has not Gruen, Greenfield, any expert or offered an affidavit from other testimony changed documents could have about how the new their jury. to the
c. Conclusion Because defendant has not shown that counsel or Fairchild were investigations, unreasonable in we conclude that their prong necessary allegation first to his has demonstrated the of counsel. ineffective assistance
B. Evidence That Failed to in Miti- Other Counsel Present
gation Background
1. Defendant that he his trial asserts informed counsel he was raped years patient at when he was twelve old an adult Psychiatric Hospital, Trenton State but that trial counsel never consultant, Fairchild, relayed mitigation that information to his Similarly, says jury and therefore the never learned about it. he him he informed counsel his mother asked his uncle to drown jury fishing trip, on a of that while never learned allegation either. Analysis
2. rape
a. Evidence of hearing, At the PCR counsel asked Call whether he PCR allegation being mitigating submitted a factor based on Harris’s not, raped Hospital. in Trenton Call said he did and he State meeting he had with Harris: testified about [Defendant] recounted his with anal intercourse, you know, exposure, experience [during meeting] making he no reference to the fact that had been extensively aggressor. characterizing as time, a victim himself each and himself, as, every indicating [The next I think it was a and I did an internal memo call, day], phone *72 that he that when was in the and at called said he had been he raped hospital, brought
that ... I that memo to Ms. Fairchild. Mr. Harris never point, provided Again, it with Ms. Fairchild when she with him. I know in her affidavit, up spoke she remembers—I think she that she thinks she was told at some but says point, all of memos. she would have received those internal testimony disputed report. reports That is Nardone’s Nardone rape allegation that Fairchild did not know about Harris’s when spoke. the two social workers Fairchild surmised to Nardone that being perhaps raped Harris would have talked if she about had interviewed him alone. raped,
If could the defense have shown defendant had been sympathy jurors. perhaps it could have evoked more from How- ever, problem the lack of corroboration was a for the defense. undoubtedly pointed The State would have out the absence of rape in documentation of a the institutional records and would self-serving have stressed Harris motivation would have had to story. allegation being raped tell such a A bare from this defendant, documentation, great without could be received with and, skepticism perhaps, negative juror feelings itself cause to- present wards defendant. Defense counsels’ decision not to allegation objectively bare did not render their assistance unrea- sonable.
b. Claim that mother him wanted drowned question allega
PCR counsel did not Call about Harris’s tion that his mother asked him his uncle to drown but did ask Scully allegation day Scully about the after Call testified. allegation, although could not remember the he remembered Call asking questions going Harris about the lake with his uncle: going I [Call] know that him about I’m the lake his uncle. questioned I don’t it was to him. I
certain, recall whether drown I don’t recall that.... don’t, I John, Mr. Call conducted this This was of the say, interview. trial portion preparing. that he was This was discussions had with or he had follow-up meetings that he had had with Ambrose. So, know, better you question asked of Mr. Call than I. reports Nardone that Fairchild did not interview defendant’s uncle, Gross, allegation. Walter to discuss with him defendant’s *73 Fairchild possibly story, told Nardone that she heard defendant’s but did not recall from whom. purpose
The of such evidence would been have to show that rejected Mattie defendant—that she even him wanted to die. any objective From standpoint, transcript trial reveals that clearly goal. defense counsel performance achieved that Their failing put was not deficient for on allega- one uncorroborated by tion wanting made defendant about his mother him drowned. Furthermore, prejudice defendant cannot demonstrate from this alleged deficiency. jury ample The had of evidence Mattie’s strong negative feelings towards her son. The defense submitted mitigating jury, eighty-four circumstances to the and at least directly of significant them described kind failing some mother, including Mattie as a numerous claims about her disdain supported for defendant. mitigating The defense those circum- professionals stances with the recorded observations of who wit- relationship mother, nessed the between defendant and his as well as with the interviews conducted Sheila Fairchild.
3. Conclusion We conclude that defendant has not demonstrated ineffective respect assistance of counsel of either of claims. these C. Allocution: Counsel’s Assistance IAC, As an additional claim of Harris asserts that his counsel explained him process neither the allocution him in nor assisted statement, preparing IQ heightened and that his borderline importance receiving counsels’ assistance. He contends that deficiency prejudice, constitutes ineffective assistance because says, surely he befell him as a result. He now claims that “even a simple Huggins statement of sorrow at the death of Ms. would ‘substantially penalty jury’s have affected’ the deliberations.” response The State’s first to this claim is that Harris has no remorse, during and his behavior trial evidenced his lack of compunction, something recognized during propor- that our Court II, 313, 757 A.2d
tionality supra, 165 N.J. at review. See Harris Huggins’s family during to insult 221. Defendant went so far as event, any that Call did confer the State submits his tirade. regarding allocution. Call stated on the record with Harris defendant, judge’s notice about allocution with he reviewed the Moreover, they prior occasions. and that discussed the matter right: him and of his The trial court advised defendant was aware judge explained scope of an allocution statement. The offered *74 and, if his when asked the court he to read a draft of statement allocution, questions replied, “no.” had about defendant Analysis 1. question importance of an allocution. The
There is no
about the
commonly-held
our
right of allocution “reflects our
belief that
every
opportunity
an
to ask for
civilization should afford
(1994)
DiFrisco,
434, 478,
mercy.”
v.
137 N.J.
The decision whether to make an allocution to (describ Bey, supra, the defendant. 161 N.J. at 736A .2d469 defendant). However, ing right personal to allocute as to as we specified Bey: right to counsel should consult with their clients so the
as the defense testily, It follows that defense counsel clients can make their own informed decisions. right should inform the defendant of the of allocution or ensure that the trial court right. ... Moreover, the defendant of this counsel must advise the apprises jury to submit a of allocution to the defendant on the issue whether statement
483
advantages
disadvantages
doing
doing
to
tactical
or
so or not
explain
advising
so.
a
Counsel’s
includes
defendant of
responsibility
the benefits inher-
exercising
it____
right
waiving
ent
and the
inherent in
consequences
give
Indeed, counsel’s failure to do so will
rise to a claim of ineffectiveness of
counsel.
(quoting
Savage,
[Id. at
469
278, 736 A.2d
State v.
577
630-31,
N.J.
A.2d
(1990)).]
In
appears
this matter
there
to
no
be
doubt that defen
allocute,
dant
right
was informed of his
only question
to
is
whether
left
counsel
the ultimate determination to defendant.
(“Defense
Bey, supra,
N.J. at
it with him on occasions. Mr. in Harris executed court notice of prior open right of and it would be Mr. Harris’ decision at this that he does allocution, point right, understanding not wish that to exercise limitations nature and the fully that would him. be placed upon right allocution? do have about Harris, you any questions your COURT: Mr. give a for the You me verbal record. response have No. DEFENDANT:
Thus, apart and from separate defendant’s discussions allocution, exchange demonstrates that counsel the above about and asked whether he wished allocute the trial court defendant any questions respect right. in had of that whether he if that trial did not leave to Even we assume counsel allocution, must ultimate about defendant defendant the decision assistance claim. The prejudice show to succeed his ineffective right in fundamen mere of the of allocution does result “denial 276, injustice.” Bey, N.J. 736 A.2d Both supra, tal at 469. prongs must be satisfied. Strickland/Fritz
Despite
given
an
defendant’s assertions
he “would have
substantially
jury
affected
allocution” that would have
delibera
tions,
betray
trial
claims.
actions
words at the time of
his
his
(“[W]e
do
id.
When Harris did make a before exercise statement counts, being remotely non-murder he did not sentenced express argu- remorse. Harris exhibited tirade that included why could been who those ments he not have the one committed *76 crimes, why and this in paled comparison crime those to commit- by others, Jeffrey ted such as He Dahmer. continued with other remarks of a ilk: similar (cid:127) saying Huggins daughter, “I’m this to the I not that did nor family, kidnap your daughter, daughter Idid nor did I shoot in rape your the head.” your (cid:127) Huggins enough enough “I want the to be man woman to family and come inup apologize face and to It me. will be a reasonable doubt my proven beyond that girl.” not Ambrose Harris did or and kill that rape kidnap (cid:127) might ain’t “You found shit because Ambrose Harris kill didn’t that woman. I something might mother-f-g a take from woman. I a I woman, but will rape goddamned if I kill be would a woman.” during defendant, stated Call discussions with Harris ex- pressed “delight great tragedies some of the of mankind. The Holocaust, City bombing delighted Oklahoma him. The he thought good thing.” was Harris’s behavior and statements give credence to Call’s incapable express- belief that Harris was ing feigned or either sincere remorse. try portrait
Nor did to PCR counsel rebut the character painted during They hearing. Harris put PCR did not ask to testify defendant on the stand to about his remorse or the kind of conveyed he during remorse would have an The allocution. PCR reveal, however, report record does that Harris’s DOC records an during angered incident prison which defendant became when guard stepped that, on his he shoe and stated words to the effect me, “you family, get are the one not I back when to I’ll you ... kill like Huggins.” GP that white bitch Kristin Further, explained ... incapa Call that he “knew [Harris] using opportunity stage not at ble of be center say something everything courtroom to that would undo that we during penalty phase.” to do tried As defen evidenced prior non-capital sentencing, dant’s statement to the court his appear justified. Thus, significant Call’s concerns there was a danger that reprimanded Harris would have been in front of the jury going beyond of an allocution. See permissible scope supra, Zola, Bey, 275-76, supra, 161 N.J. at (citing A.2d 1022.)(“A 112 N.J. defendant, however, may 548 A.2d deny guilt,” allocation rebut use facts evidence or *77 offending portions, the does, may allow “the court strike if he of the respond, permit to or limited cross-examination State defendant”).
2. Conclusion against to- the court and even outbursts Given defendant’s objectively for family, it was unreasonable wards the victim’s exhibiting incapable defendant of counsel to conclude that was Furthermore, in- feigned the trial court honest or remorse. had open asked him in court if he right formed Harris of his any questions. Harris that did not and never asked affirmed he no that provided make allocution. counsel evidence to an PCR expressed have an allocution that could have or would defendant substantially jury’s More- affected deliberations. would have over, opinion contrary, supporting all was to the Call’s evidence expressing feigned real or re- incapable that was morse, against particularly respect crimes committed Huggins. Assuming argument that purposes about to defendant did not make the ultimate decision whether allocution, an we that defendant has not satisfied make conclude preju- Strickland’s requirement he that demonstrate he diced.
D. and 5d Failure Present 5a contends that his trial counsel rendered ineffective Defendant statutory mitigating they not submit two assistance because did factors, 2C:11-3c(5)(a) and N.J.S.A. 2C:11- N.J.S.A. found 3c(5)(d) (5a 5d, Mitigating respectively). factor 5a states jury may under the consider whether “defendant was influence or emotional disturbance insufficient of extreme mental Factor 5d that the prosecution.” to constitute a defense to states jury may capacity appreciate the “defendant’s consider whether to the wrongfulness of his conduct or conform conduct impaired requirements significantly as the result of of the law was intoxication, mental disease or defect or degree but not to a sufficient to prosecution.” constitute a defense to Background
1. Defendant’s trial jury counsel mitigating submitted circumstances under the “catch all” factor at N.J.S.A. 2C:11- 3c(5)(h), many of which concerned his emotional and mental problems as argues a child but jurors defendant now probably *78 given 5d, would have weight substantial particularly 5a and because those explicitly by factors are set forth Legislature as mitigating. support claim, In of his highlights defendant mitigating circumstances that trial counsel did submit and that reference his childhood problems. mental and emotional He contends that problems the effects of certainly linger, those still by submitting factors, 5a and 5d mitigating as his counsel jury could have a insured discussion about his mental and emo- 17, Therefore, tional state on December 1992. because counsel did not statutorily-prescribed factors, submit those defendant’s “resultant death suspect.” sentence [is]
The State counters submitting mitigating those factors would have been strategy inconsistent with the defense of exclud- ing all evidence related to ages the defendant’s life between the forty-two. thirteen and emphasizes The State that “defendant’s horrific record of convictions and kept DOC infractions had to be jury costs,” from including at all the cost submitting of not 5a and 5d. testimony If defendant introduced about his emotional and mental disturbance in December the State would have impeach been able to examples evidence with other of his dangerous conduct. Analysis
2. clearly
The focus of 5a and 5d is the mental and emotional capital of a state defendant at provide the time of his crime. To support factors, evidence in of those defendant’s trial counsel would have had to seek an examination mental psychological develop a have had to experts who would
health Therefore, age. forty years of at him as he was profile of constitutionally it implies claim that was argument defendant’s investigation and limit their counsel to for his trial unreasonable of his childhood before mitigation case to evidence 1965. October again, disagree. Once
We thorough investigation of law and facts relevant strategic choices made after strategic unchallengeable; choices made after are virtually plausible options investigation to the extent are reasonable precisely than less complete investigation. judgments limitations on support reasonable professional investigations a or to make to make reasonable counsel has a words, duty other investigations unnecessary. that makes reasonable decision particular 695.] at at 80 L.Ed.2d 690-91, 104 S.Ct. [Strickland, U.S. supra, duty. strategy, limit fulfilled their Their counsel Defendant’s case, proper a mitigation was based on ing scope of the approach to take professionally reasonable investigation and was a imprisonment. to life jury to sentence defendant persuading strategy he chose the because specifically stated that he Call sentence. Defen thought chance for life it was defendant’s best strategy right based reasonable to a reasonable dants have merely they may not claim ineffective assistance investigation; sought. produce the result counsel strategy did not because the *79 (1999) Davis, (citing A 469 supra, at .2d Bey, 161 N.J. 1082.) (“Merely because a trial supra, 561 A.2d 116 N.J. ineffective.”). strategy not mean that counsel fails does experts develop to a mental health If counsel had enlisted trial of his crime in the defendant at the time psychological profile of 5d, they testimony support would would 5a hope that such and/or jury of to inform the opportunity an for the State have created prison The State and conduct. atrocious adult record psychologist to interview right had a to use its own would have expert defendant, provide its with entitled to and would have been 2C.11-3c(2)(d) (“The State and N.J.S.A. defendant’s records. See presented any evidence permitted to rebut defendant shall be present sentencing proceeding and to by party at the the other argument adequacy as to the of the evidence to establish the factor.”). any aggravating mitigating existence or prosecu- The tor also would have been able to expert cross-examine a defense questions about defendant’s records and their relevance to any diagnosis. mitigation
Call’s decision to limit the
case was
based
investigation.
reasonable
He
limiting psycho-
testified that before
logical expert testimony
early years,
to defendant’s
he reviewed
“approximately
files,
thirty-five
two or three crates of materials
represented
history
which
sys-
in
[defendant’s]
the correctional
parole.
tem” and on
prison
Defendant’s
100-plus
records indicate
infractions,
including
inmates,
assaulting
threatening
kill
inmate,
guards, sexually assaulting an
stabbing
pris-
and
another
in
oner
the neck with a
In describing
fork.
the content of those
records,
stated,
say
Call
“To
that his
abyssal
behavior was
[sic]
saying
would
stopping
be like
the Titanic was
for ice.” Call
continued:
limiting
[W]e felt that
our
by
his formative
as
presentation
was done
years,
Judge
v.]Biegenwald[,
[State
successfully by
Scully
N.J.
was the counsel to the it appellate it was not a matter, was, to decide that if those DOC records question were available to the state and used during foregone the result would have been a penalty phase, conclusion. reasonably opined Call that information in defendant’s DOC rec- ords “would have been insurmountable overcome.” For exam- ple, prison guard, stepped foot, defendant told a who on his something of, “you to the effect family, are the one with the me, get and when I you back to GP ... I’ll kill like that white Huggins.” bitch Kristin
According testimony, to his possible Call did consider the coun- terweighing having benefits of by interviewed mental expert. response counsel, health questioning PCR Call stated that he did any possible confer with Dr. Greenfield about mitigating explanation for prison. Harris’s records in Call testi- *80 psychological suspect that a did not that Dr. Greenfield
fied diagnoses. After yield would beneficial of defendant examination records, Dr. and other Green learning correctional of defendant’s findings fairly would be with as to what “was certain field personality disor of antisocial regard Harris in terms to Mr. der____” Greenfield, conveys Dr. in his testimony Call’s defendant, anticipate finding that judgment, professional did 17,1992, mental under the influence of extreme “was December to to constitute defense disturbance insufficient or emotional 2C:11-8c(5)(a), “capaci impaired an or had prosecution,” N.J.S.A. or conform his wrongfulness of his conduct ty appreciate 2C:11-3c(5)(d). law,” requirements N.J.S.A. conduct to the calling Dr. potential harm of Greenfield also considered the Call only testify defendant’s childhood. He Dr. about Gruen perspective” to “problem from a cross-examination knew it was experts instruct- from the that the defense allow the State to elicit mental condition opinions form about defendant’s ed them not to Scully age But Call and reasoned after the of thirteen. represented mitigation case nevertheless limiting scope of the words, to cross- strategy. to allow the State their best Call’s records, “which expert about defendant’s examine a mental health every ... other fraught violence and racism and simply were thing,” [sic] have been a “fiat accom- awful the verdict would God reasonably if the State cross- pli.” Trial counsel feared records, they would be psychologists with defendant’s examined productive jury that defendant could live a unable to convince the “Unfortunately, prison: Mr. a non-destructive life or even in a he was on the street or Harris’ record reflected that whether danger represented present security facility, he an ever maximum him, they staff----” everyone around be inmates or correctional psychological to limit evidence to defen Trial counsels’ decision and, of the 5a consequently, their non-submission dant’s childhood factors, strategic mitigating was based on “reasoned and 5d supra, at judgment.” Wiggins, 539 U.S. S.Ct. (2003). testimony demonstrated at 487 Call’s PCR 156 L.Ed.2d
491 penalty phase pros and cons of his that he did balance the words, strategy, and in his “it wasn’t even close issue” as to informing jury whether the should risk of defendant’s defense had past conduct. And even if defendant’s correctional records presented question, tactical counsel with close their decision III, unquestionably 174 at 804 reasonable. See DiFrisco N.J. (“Counsel decisions, A.2d 507 also made understandable time, may presentation of to to avoid the evidence have led defendant.”). damaging “[T]he the revelation of information about preferable mere existence of alternative—even or more effective— strategies satisfy requirements demonstrating does not VI, supra, F. 3d ineffectiveness under Strickland.” Marshall 307 at 86.
3. Conclusion view, strategy appears trial more than reason our counsels’ following jurors very may is considered: well have able when supposed that Harris’s severe mental and emotional disturbances life, Although stayed throughout past him adolescence. the evidence to defendant’s life October counsel restricted before 1965, given problems of his childhood and his courtroom the extent behavior, conjecture strategy jurors to counsels’ allowed brief, fact, problems Harris’s continued. Defendant’s PCR that, during acknowledges inappropriate conduct “[biased his trial, spontaneously it a fair that he ha[d] inference and, Huggins, if from those maladies he murdered Ms. recovered agree; afflicted at the time of the crime.”9 We but that was so 9 argue jurors that could The trial court was concerned that Call would to they diagnosed as Harris was a in 1992 because he was such infer that schizophrenic in the sixties. Call responded:
There will be no ... insinuation that the mental state of Mr. Harris and environment, cetera, home et to October 1965 is offered any way prior condone, as excuse to the behavior of December 17 of 1992. an explain from birth That would be the time frame clearly clearly open up improper, until present. acknowledgement argument undercuts defendant’s that he was prejudiced trial 5a and 5d counsels’ failure submit the mitigating strategy jurors factors. Counsels’ allowed to have disturbances, insight some into defendant’s adult character and him, VI, helped supra, to humanize see Marshall 307 F.3d at (“The purpose [mitigation] investigation is to find witnesses defendant.”); help simultaneously kept humanize the it from jury demonstrating danger presented evidence Harris guards. Wainwright, inmates and correctional Darden v. Cf. *82 (1986) 168, 186, 2464, 2474, 91 L.Ed.2d 160 U.S. S.Ct. (stating why reasonably that there were “several reasons counsel rely simple plea mercy could have chosen to on a for from petitioner” “[a]ny attempt portray where to as a [him] nonviolent opened man would have the door for the State to rebut with convictions”). Indeed, petitioner’s prior evidence of records, prison including many criminal and statements made to officers, depict legal system society a man who disdains the and a perceives legitimate authority that he as racist and without to behavior, place expresses contempt restrictions and who his by intentionally flouting our most fundamental moral rules. that, presumption
Defendant has not “overcome the
under the
circumstances,
submitting
[not
5a and 5d
be considered sound
can]
Strickland,
strategy.”
supra,
trial
U.S.
104 S.Ct. at
(internal quotation
E. Lack of to Prosecutor’s Summation complains object Defendant of trial counsels’ failure to to as- pects penalty of the State’s summation that defendant claims were right Call that Harris had a evidence that "would make it explained present [jurors] more would extend to him.” The trial court likely mercy properly strategy. though allowed the defense to its But even Call did employ proposed jury not ask the to find a nexus between Harris’s terrible childhood and the against Huggins, jurors crime he committed Kristen well could have very
made such a connection. argument support of non-statuto- inflammatory provided an appellate also claims that ry aggravating factors. Defendant failing on direct for to raise this issue counsel was ineffective appeal. Background
1. prosecutor’s counsel should The comments which defense Harris, objected, according to are as follows: have (cid:127) “get that bitch;” he said Harris intended to (cid:127) Huggins virgin her; he was a before he raped stated (cid:127) Huggins of as “an act of An act of cruelty. he described Harris’s sodomy power. Huggins. Kristin It was an act of dominion and control;” An act of for contempt (cid:127) lolling argued ... deliberation, Kristin;” he “with cruel Harris, planned (cid:127) jury imagine car: “You have all seen asked the Kristin the trunk he think murder in the course of the trunk of that car. When about you why imagine kidnapping aggravating in this what it must case, is a factor powerful Huggins into that to have been driven around stuffed have been like Kristin going worrying to her airless about what dark, trunk, happen cramped, next.” defendant, probative According to none of those statements were any attempt an to inflame aggravating factor and all constituted jury. appellate that neither trial counsel nor The State counters prosecutor’s summation was counsel were ineffective because *83 prosecutor to talk about the terror proper. The was entitled (4)(g) weight of the Huggins experienced because that went (murder robbery engaged in sexual as- aggravating factor while arson, sault, prosecutor kidnapping, burglary). The tried to or on that fateful how Harris “chose and controlled the events show mitigating mitigating of the ‘childhood’ day” to “balance the effect if Finally, prejudice, argues that even as to the State factor.” summation, lodged objection during an it defense counsel unavailing. would have been Analysis
2. that, appeal, we at the outset on direct
We note
prosecutor’s
rejected
claims that the
summation
defendant’s
improper
“impermissibly ranged beyond
scope
of the
I,
192-95,
supra,
evidence.” See Harris
The
proper scope
then turns on the
and sub
ject
prosecutorial
matter of
expected
comments. “Prosecutors are
vigorous
to make a
closing argument
jury
and forceful
..-.
leeway
and are afforded considerable
in that endeavor.” Nelson
II,
(citations
omitted).
supra,
They
495 summation, commen prosecutor’s the penalty-phase In a and aggravating to the be confined tary the evidence “should specified.” State v. legislature has mitigating factors that (1990) Rose, 231, (citing v. 194, State Coyle, 574 A .2d951 119 N.J. 1058). And, 521, A.2d addition at 548 supra, N.J. factors, aggravating the evidence establishes arguing weight to accorded an argue be prosecutor is entitled “[t]he II, 474, at 803 A.2d supra, 173 N.J. aggravating factor.” Nelson 1. for the
Thus,
proper
penalty-phase
in a
summation
it is
evidence,
commenting
characterizing
on the
and
prosecutor,
if such comments
weight
aggravating
of an
factor even
argue the
justified,
of latitude is
jurors’
That amount
arouse
emotions.
jurors are asked to make
moral decision that
given the kind of
aptly
As
Eleventh Circuit
weighing of factors.
on the
based
jury’s
in the
noted,
is a crucial factor
gravity of the crime
“[t]he
always
gravity
will
decision,
arguments
of murder
about
(11th Cir.1984);
Zant,
882, 888
v.
724 F.2d
Tucker
be emotional.”
appeals to emotion are
(noting
id. at 886-89
also
see also
“circum
directed at
prohibited
permissible
are
when
generally
but
assessing
purposes
particular offense”
of [the]
stances
Carolina,
280, 304,
428 U.S.
v. North
penalty) (quoting Woodson
(1976)
Stewart,
2991,
944,
(opinion of
2978,
49 L.Ed.2d
96 S.Ct.
179,
Ramseur,
Stevens, JJ.));
106 N.J.
Powell,
v.
State
is,
part,
(1987)
capital punishment
(agreeing that
prosecutor.
‘To
have
unmistakably improper,’ and must
‘clearly and
have been
right
fundamental
substantially
prejudiced [the]
”
defense.’
fairly
[or her]
the merits
jury
evaluate
have a
(quoting State v.
a. “chose to that bitch” readily This claim is resolved. Examination of the state ment prosecutor context reveals that repeating was statement that Dunn during testimony: attributed Harris her Huggins in the Finally, the Trenton Kristin vicinity Club, and her little red car tragic
had the misfortune to be spotted. “Question: “What when happened you saw the little red car?” pulling girl “Answer: As the car was in the it was this in there in driveway, the car. go pulling It for other cars to it stopped And was in. And by. we saw the little coming get ear going in. And he said, there’s a there. I’m. car, that bitch. And coming she was in the She went driveway. down and we both seen her come in. right He said to wait, wait, I’ll be back. wait, And he drove down there on his bike after the car.” He didn’t have to do that. Even then he could have called it left Kristin to off, get get her start her paint mural, career, on with her life. But he chose to instead, gun. that bitch. He controEed the He controEed the situation. He controEed Kristin’s Efe. only fact, Not prosecutor, did the step outside “four evidence,” corners specifically he referenced Dunn’s testi- mony, just addition, which he had read. Dunn testified that directly Huggins Harris called “bitch” and referred to her as a “bitch” several times. duty
Defense counsel did not object have a to the prosecutor’s prosecutor reference when plainly staying was evidence, within the bounds of the legitimately could strive to show, argues, coldness, as the State “the the total unconcern for plight Huggins” Kristin exhibited defendant.
b. Prosecutor’s virginity statement about victim’s
Defendant claims that objected counsel should have when prosecutor Huggins’s referred to virginity. We note prosecutor outset that the never commented testimony on Dunn’s Huggins pleas made to Harris virginity. based her He simply testimony: read Dunn’s ... What happened?
“Question: in front of the car. I was He told to stand to take her clothes off. me “He told her right watching off then. She take her clothes Kristin. She didn’t around, turned saying going shaking. talking, what are to do. was she you was She nervous, virgin. just off. said I’m a and take clothes She bitch, shut said, up, your He when she said that? What happened
“Question: pulling just—he grabbed grabbed she start He her and He her. “He didn’t care. shaking, trying and he was nervous and off, to take them clothes, on her unfastening his pants. telling crying, she was a around and she was him and I turned “And I heard her *86 having virgin with her.” no. I him sex said, and stuff. And she seen added).] (Emphasis [ object to the counsel to legal for defense
There was no basis jury, and testimony to the reading admissible prosecutor’s this to make a to a failure assistance due there was no ineffective thus objection. baseless cruelty” power ... and
c. “Act of summation, Dunn’s during read back prosecutor, The rape. He leading up to the testimony Harris’s actions regarding stated, testimony. prosecutor The commented on that then Huggins? believes that Surely nobody assault Kristin did he Why sexually foggy Bridge Ambrose standing on that rainy, day, the Street under Southard an the here was sodomy sexual No, overcome with suddenly passion. Harris Huggins. It was for Kristin An act of cruelty. contempt act of An act power. control____And deliberation, with cruel he planned then an act of dominion and killing of Kristin. the objected to should have that his counsel complains now Defendant comments. those assessment, were a fair prosecutor’s comments
In our to and were relevant of the evidence characterization State’s (murder in the factor (4)(g) aggravating appropriate weight of the crime) circum specified in the or other of a assault course sexual “lengthy terrorization” depicted a evidence stances. The State’s 221, of II, supra, 165 N.J. 757 A.2d Harris defendant, by are part. prosecutor’s words The the sexual assault was which crime: of the our own characterization distinct from so The cold-bloodedness and of defendant are brutality evidenced the fact that by Huggins____Huggins defendant asked Dunn to watch him kill specifically did not to a sudden act. Nor kill provoke did he her in the midst of intemperate violent sexual To the for two hours frenzy. she was a victim of a contrary, helpless carjacker____Defendant Huggins cool and deliberate was aware of how helpless felt. [Ibm brutal,
Whether described as cold-blooded and or as an act of cruelty power, apt the words are perti- to the evidence and aggravating nent to the factor jury. under consideration prosecutor’s The proper. comments they were Because were blameworthiness, relevant to defendant’s weight (4)(g) aggravator, evidence, and were a characterization of the defense grounds object. counsel did not have Request imagine being d. in that trunk reciting testimony
After Dunn’s about forcing Harris Huggins trunk, into prosecutor the car’s jurors asked the imagine Huggins’s experience what was like:
You have seen the trunk of that car. When think you about murder in why kidnapping aggravating course of a imagine is a factor in this powerful ease, what it Huggins must have been like for Kristin to have been driven around stuffed into worrying going that dark, airless cramped, trunk, about what was to her happen next. Defendant claims that performance defense counsels’ was deficient *87 they object because did not to these remarks.
Again, although these comments were
at invoking
aimed
some
jury, they
emotion from the
do not
proper
exceed
comment. The
prosecutor
go beyond
did not
parameters
evidence,
of the
and
argue
he was
weight
“entitled
aggrava
to be accorded an
II,
ting
supra,
Nelson
factor.”
173 N.J. at
474,
1. Factual Inflammatory publicity
a. reporter juror contacts with the concern associated The provided the contacts public defender is and ex-assistant jurors. must assess extraneous, information to We prejudicial context, understanding threat that existed that concern might jury be deliberations trial throughout defendant’s *88 500 Indeed, by inflammatory publicity. argues
tainted the light “presumptively Court should assess this issue in of the prejudicial” coverage media of his case. recognized,
As this Court
can
no doubt that
“[t]here
be
this case
accompanied
widespread,
inherently prejudicial pretrial
was
I,
145,
coverage.”
supra,
media
at
Harris
156 N.J.
After the
convicted
defense counsel moved to
sequester
jurors
and to conduct an individualized voir dire.
Id.
motions,
458.
opting
A.2d
The court
both
denied
open
instead to conduct a collective voir
court.
dire
This Court
denials,
150-54,
affirmed those
id. at
holding
716 A.2d
the collective
prejudicial
voir dire
sufficient to
that no
show
exposure
particular
had occurred in the
circumstances.
Id. at
b. Juror contact jury, February 29,1996, summations to the before counsels’ On counsel, record, presence placed on in the court defendant, jury, sergeant-at-arms informed and the that the had receiving jurors phone a call at home reported had him that some reporter. court stated: newspaper a The from Sergeant him that informs the that some of informed you you Petro Court have has call of a The Court a from newspaper reporter. received telephone inquiry that who called you You should know this, with the reporter. reporter spoken govern. coverage. that She was unaware the rules is new to courthouse She contacting apologizes for you. anything with the has been that no one discussed reporter. The Court informed were all of who is, you informed this Court that all you polite, The reporter Please understand and all of to make comment. contacted, you any were declined just grew misunderstanding that it a on the reporter’s that it was simple part, of a lack of experience. out with but for contact, of the will discuss media trial, the conclusion the Court you At or so. has day I think we’ve covered what occurred in past the moment reporter meeting the court and the referenced between The documen- happened in camera and not on the record. There is no fact, employer. it is unclear reporter’s or tation of the name meeting present the court at the counsel between whether hearing, counsel stated At reporter. and the the PCR Scully notes, that, nor according to trial counsels’ neither Call it in reporter’s spoke the trial court about calls until learned of the trial jury. spoke with of the PCR counsel presence When Scully hearing, Call nor privately before PCR neither counsel jurors. reporter’s contact with recalled the counsel, Priarone, an affi- submitted defendant’s PCR Michael identity, reporter’s but stating he ascertain the tried to davit Scully, Priarone speaking with Call and not. In addition to could Trentonian, Zarling, and contacted the Prosecutor interviewed Times, Trenton reporter Channel 12. No was aware of one jurors. who called There is no whether record on Priarone tried to contact the trial court. Investigator
Priarone asked Dolan from the Public Defender’s Sergeant Office to told interview Petro. Petro Dolan that did he was, reporter Bomse, Audrey know who recall but did Defender, attorney talking former staff jurors the Public during trial. The record reveals that at the time of defendant’s trial, pending suit against Bomse had a the Public Defender regarding discharge explained her from that office. Petro *90 Bomse used her former Public ID card Defender to enter the County day talking jurors. Mercer on the Jail she was seen with case; attempting regarding She was to interview inmates Harris’s however, personnel “working Sheriffs discovered that Bomse was Jersey legal in North aas aide” and not Public at Defender time, prison. and removed her from the reports 2002, The that in prosecutor State March an assistant County Dispoto from Sergeant Mercer and a interviewed Petro about Reportedly, defendant’s case. Petro “indicated that did he any not witness ... communication” between Bomse and the jurors during fact, trial. telling Petro denied ever Investigator Dolan such an incident.
Defendant’s counsel post-verdict PCR moved for interviews of jurors regarding newspaper their contact with reporter and requested Bomse. Counsel that the court hear PCR related testi- court, mony Bomse, Dolan, Petro, Call, from the Scully, trial and prosecutors. The PCR court request denied both the to hear testimony post-verdict and to jurors. conduct interviews of the request post-verdict
c. Defendant’s for interviews post-verdict juror motion for interrogation Defendant’s is governed by 1:16-1, Rule which states: granted good leave of court
Except by shown, cause no or shall attorney party through investigator acting or directly, any or other for the attorney person
503 juror grand to matter or examine, respect any or interview, any petit question relating to the case. added).] (Emphasis [ good hurdle to show cause: high a bar that defendant must
It is they jurors interrogation been dis “Calling for after have back procedure invoked extraordinary an which should be charged is may showing litigant that a have harmed only upon strong a been Athorn, 247, 250, State v. N.J. 46 216 A.2d by jury misconduct.” (1966). 369 high repeatedly have our adherence to reaffirmed
We III, 241, 507; See, supra, e.g., 174 N.J. at A.2d DiFrisco 804 bar. Koedatich, I, supra, 154, 458; State v. 156 N.J. at A.2d Harris 716 Athorn, supra, 46 (1988) 225, 289-90, (citing N.J. A.2d 939 369). By post-verdict for allowing interviews N.J. at 216 A.2d extraordinary cause, remedy provided circumstances is good However, Rule also balances defen injustice. prevent an requirement crucial concerns. “The against interests other dant’s showing strong intended make such that a defendant chilling jury juror deliberations.” harassment avoid prevent I, III, supra, Harris (citing 174 N.J. at A.2d 507 DiFrisco 458). “Privacy secrecy must supra, 156 N.J. 716 A.2d jury only finality process, promote to the attach itself, allowing process also aid the deliberative verdicts but I, Harris thoughts.” or her juror the to discuss his each freedom *91 Loftin, also State v. 154, 287 supra, 156 N.J. at 458. See 716 A.2d (stating that Rule 76, 109, N.J.Super. (App.Div.1996) A.2d 557 670 come,” the “prevents] and “free in cases to protects debate recorded”) (citations they unsettling of after have been verdicts omitted).
Thus, “good post-verdict would exist cause” for interviews (or “juror strong showing that a inform[ed] a if a defendant makes misinform[ed]) of the colleagues jury room facts about the his not case, knowledge, were personal which facts based Athorn, 251-52, N.J. 216 supra, 46 at into evidence.” introduced any has not uncovered But in this ease A.2d 369. defendant 504 jurors inappropriate
evidence that
or
considered
information
that
by juror
250,
any way.
he was “harmed
misconduct” in
Id. at
216
Similarly,
369.
A.2d
bald accusations in Koedatich
held
were
juror
generate
post-trial.
insufficient to
a basis for
interviews
289,
Supra, 112
548
939.
N.J. at
A.2d
Koedatich, supra,
newspaper
In
defendant submitted
“quoted
deliberating jurors
article that
two
and one alternate
juror,”
jurors
that
who indicated
knew that the
was
defendant
murder, although
linked
another
that information
not in
286,
evidence. 112 N.J. at
A.2d 939.
548
We nonetheless denied
post-verdict
Koedatich’s motion to conduct
interviews because
single
article,
newspaper
indisputably hearsay,
“contents of a
extraordinary procedure
post-
cannot be the
basis for
sole
of a
jury
interrogation."
939;
trial
Id. at
548 A.2d
see also State
Freeman,
92, 120-21,
N.J.Super.
v.
(App.Div.
223
A.2d
1988) (holding
hearsay
clearly
provide
that
good
“would
cause
post-verdict interrogation
jurors”).
for
finding
of
no evidence
harmed,”
“may
been
have
we noted that
any juror impermissibly
Koedatich “never asserted that
consid
Koedatich,
reaching
[other
ered
crimes
a decision.”
evidence]
supra,
In the reporter there is evidence that a jurors, reported contacted some of the as to the State open presence jury defendant and his counsel in court signaled members. The trial court’s in-court statement his satis conveyed by faction that extraneous information had not been jurors reporter to those who had been in a called “contact of Indeed, inquiry” juror for comment. no during came forward or say she, any trial to or jury, after that he or other member of the *92 by by provided reporter, or extraneous information the considered Koedatich, lacking Audrey for that matter. As was in Bomse jurors improper indicating that considered is no affidavit there jury hearsay improper There is not even evidence information. deliberations. jurors’ any negative from the we inference
Nor do draw tenor court’s com court’s The of the reaction to the comments. effectively jurors that the open court informed the in ments proceeding would contacting in them and reporter erred to the Implicitly in the trial court’s address continue. reflected anything jeopar court jury that the was not aware jurors’ lack of fairness of trial. We note dized the re apparent upon hearing the court’s any response or reaction to think reporter’s contact. We have no reason marks about the hearing the trial court’s statement. they concerned after were further on apparently no reason dwell The trial court saw Thus, context, hearsay provide the in that as cannot subject. Koedatich, 1:16-1, supra, 112 necessary “good Rule cause” under then, certainly, no evidence A .2d neither can at N.J. extraordinary jurors interrogation an Calling all. back necessary. compelling do so is Defendant step and a reason to carried his has not burden. by taken the trial court
2. Measures and argues application that his conviction this Defendant court failed be because trial sentence should vacated hearing on the open to have an jurors contacted and interview the phone calls. reporter’s potential rights harm to caused by the prejudiced presume that he was urges this Court He States, calls, Remmer v. phone relying on United reporter Supreme Court stated: which the United States tampering or communication, contact, directly or case, criminal any private In a jury pending juror during is, trial about the matter before with indirectly, prejudicial, if not made pursuance deemed reasons, for obvious presumptively court made of the of the court the instructions directions known rules knowledge is not during full of the The trial, parties. presumption *93 but the burden rests Government conclusive, the after heavily upon establish, hearing juror notice to of the that such contact with was defendant, the harmless to the defendant. (1954).] [347 U.S. 74 227, 229, 450, 451, S.Ct. 98 L.Ed. 656 654, prophylactic Remmer a purpose created whose rule was protect impartiality jury. any of the the It does not that follow suggested deviation from its measures constitutes a violation aof right impartial jury. an If right remains protected, Thus, alleged the violation is harmless. notwithstand ing Supreme the steps Court’s statement the a about trial court preserve jury influences, should polluting key take to from the here is to by determine whether defendant was harmed either the court’s, counsels’, handling or reporter of the contact issue at the note, time it is the question. arose. That ultimate We in that respect, questions concerning ongoing have arisen viabili ty “presumption.” Olano, of the Remmer See United States v. 1780,123 L.Ed.2d 725, 739, 113 1770, (1993) 507 508, U.S. S.Ct. 522 (“There may be cases where an presumed intrusion should be prejudicial ..., presumption prejudice opposed but as ato specific analysis change inquiry: does not the ultimate Did the jury’s verdict?”); intrusion affect thereby deliberations and its Williams-Davis, (D.C.Cir. 490, United States v. 90 F.3d 496-97 1996) (noting longer that the eases no presumption treat the “as particularly forceful,” and approving Fourth Circuit’s view “ presumption prejudice ‘while a impermissi attaches to an communication, ble presumption casually not one to is be ” (quoting invoked’ Stockton v. Virginia, Commonwealth 852 (4th Cir.1988))). 740, F.2d 745 view,
In our
the trial
interrogated
court should have
reporter
presence
on the record in the
of trial counsel.
Although
handling
juror
the trial court’s
of the
contact
reporter
appropriate,
grounds
it does not constitute
reversal.
It does make review more difficult. We have “consis
tently required
protect
jurors
trial courts to
both
and their
illegitimate
deliberations from
influences that threaten to taint the
Bey, supra,
75,
verdict.”
507 expose impinging upon the “seek out and outside factors must integri jury’s impartiality and its and essential freedom of action (1979). 232, Kozlov, ty.” A.2d 882 More In re 79 N.J. 398 over, adequate necessary for the inquiry “an the record Scherzer, appellate N.J.Super. purposes of review.” State v. omitted). (citations (App.Div.1997) A.2d very juror-contact The context in which this issue arose is highly important. court and counsel were sensitized about The possible contaminating juror exposure effect of noxious trial screening jurors subjected were to extensive publicity. The who *94 contact, newspaper keenly press of the were aware intense about out-of-eounty extraordinary Indeed, jurors received interest. the to minimize risk of transportation and from the courthouse the Regular showings coverage of trial. of exposure to media the jurors each counsel were concerned hands were taken of time that particularly egregious a account” had entered about “news public The court’s and counsels’ concerns thus were the domain. jurors through the made known numerous interactions between trial, jurors in its multiple-week-long and the in this then court backdrop, it segment (penalty). Against find second that we jurors promptly the significant that it was the who volunteered them reporter’s phone calls. Several of information about the report approached Sergeant Petro the contact. circumstances, juror it is to infer that a
In these reasonable contact was more than Sergeant have told Petro if the would it, seeking contact, inquiry, phrased simply that—a or as the court unsuccessfully Although approve do not the juror a comment. we matter, make of the way trial the we can use the court handled the take in our of whether defen- measures court did assessment spoke reporter any harm. The trial court the dant suffered record, jury parties, court On before the the in camera. juror trial convey taint occurred. The any not concern did merely “telephone a call reporter’s contact as court described the Moreover, any its juror raised further issue. inquiry,” and no merely “of phone inquiry” call one characterization of the as Dolan, investigator, Tim echoed in the notes of the defense who jurors reporter wrote that the called “to solicit comments.” We by suggestions unsupported jurors are not would moved have by by court, reporter “unprotected” felt or “intimidated” regardless reporter circumstances, what said. Under these we that no are satisfied harm befell the defendant as a result of handling the trial contact reporter court’s of this new to the courtroom.
3. Defendant’s claim of ineffective assistance counsel mentioned, represented
As PCR counsel that trial counsel juror directly learned of the contact when the trial court ad jurors reporter’s phone dressed the in court about the calls. argues provide Defendant that his trial counsel failed to reason they request hearing able assistance because they did once phone learned of the calls. question
The PCR court did not PCR allow defense counsel to Scully surrounding juror Call and on the circumstances con- tact, permit testimony -witnesses, and it did not from other related judge, presided such as trial who over defendant’s trials. Nevertheless, represented spoke defendant’s PCR counsel that he Scully privately. with Call and Neither recalled trial reporter’s court in court phone addressed the occurrence of the *95 calls.
Again, deficiency this claim of must be examined in context. do our performance We not divorce evaluation of counsels’ from Specifically, the overall of conduct this trial. arewe mindful of atmosphere by the created publicity the tremendous of amount progress, focused on the trial’s as well as the overall efforts and strategies counsel, including vigilance of defendant’s trial their in asking protect jury to press coverage. the court the from the Call Scully very and right were aware of the threat to defendant’s to a posed by They fair repeatedly trial the media. the court asked to jurors they exposed any ask whether were to of it. and wit
Furthermore, Scully in the courtroom were Call the statements about jurors’ to the court’s the reactions nessed any perceive whether They able to would have been phone calls. any way by dismayed in the court’s surprised or jurors appeared calls, phone or its of the and characterizations statements about information it proceed on the based as to how determination interpreted a counsel’s lack We often have had disclosed. complained-of error was judgment that the objection to reflect Macon, 325, 333, context,” N.J. v. “in State significant not keep out (1971); here, efforts to given trial counsels’ A.2d 1 they not find influences, did find reason to assume we extraneous light all “significant in the context.” phone calls reporter right preserve court had done counsel and the prejudi presume not impartial jury, we will trial and an to a fair time, it was context at the hindsight. its contact in Viewed cial landscape of this tumultuous on the broad but a harmless blemish numerous, by efforts counsel overt proceeding that involved influences. See jury from protect extraneous court to 540-41, 144. conclude Koskovich, 776 A.2d We supra, 168 N.J. at per counsel’s that defense not demonstrated that defendant has case, was outside formance, of the light of all the circumstances performance because competent range professionally the wide juror on contact requested proceeding was not extensive more issue. Constitutionality 1:16-1 of Rule
4. argument completeness, we address defendant’s
For
because,
requiring “good cause”
1:16-1 is unconstitutional
Rule
prejudicial influence
interviews,
exposure of
juror
it leaves
for
ability to
is,
argues that his
That
jurors to chance.
sheer
depend
on the
impermissibly “made
good
cause
show
[during jury
somehow
luck,
wrongful
deliberations]
event
97, 107,
LaFera,
violates speech, trial, to free public a fair and defense, conduct a capital and to a reliable sentence.
In
this Court addressed similar constitutional attacks on
1:16-1,
Rule
they
I,
and held that
were “without merit.” Loftin
supra,
146
(citing Loftin,
N.J. at
supra,
A.2d 677
108-09,
557).
N.J.Super. at
670 A.2d
holding
We
to our
adhere
Loftin,
only
and add
already
that we
have discussed the sound
justifying
reasons
application
the rule and
post-
its
to motions for
interrogations
verdict
jurors.
502-03,
supra
See
YI. Additional Claims Judge A. Recusal of PCR
Defendant judge claims that the PCR erred denying defendant’s motion that he light recuse himself. of our deter nullify mination to findings the PCR court’s conclusions, and novo, to decide this matter de unnecessary we find it to dwell on aspect this application. of defendant’s briefly it only We address any question eliminate about our determination to utilize the record created in this matter. Background
1. Approximately two months after the conclusion of the PCR hearing, decision, but before the court issued its PCR counsel moved to recuse the PCR court from applica- consideration of this tion. The motion indictment, was based on an January 7, filed 1975, against brother, alleging and his they com- mitted battery atrocious assault and robbery. The indictment signature (now contains a Acting for the County then Prosecutor however, judge); the PCR appear three initials signa- after the Additionally, ture. a motion July 3, 1975, for dismissal dated signature bears a Acting County of the then Prosecutor. That motion indicates that pled “defendant has and been sentenced on *97 by charges. purpose other No would useful be served further prosecution granted of this matter.” The motion to dismiss was by Court, Judge Superior although judge’s signature a of the illegible. court
The PCR denied the motion to recuse. The court stated any personal prosecution that it did not have recollection of the or supervision twenty-five of the unrelated indictment that issued years earlier. The court also noted that someone else’s initials signature sign after his that demonstrates he did the indict- personally prosecute ment or the matter. Analysis
2. and Conclusion marginal, any, participation Given the PCR court’s if in the indictment, matter, present unrelated and its to the remoteness we conclude that defendant has not established that reason existed “might preclude hearing judgment, and fair unbiased or so,” might reasonably parties which lead counsel or the to believe support presented violation of Rule 1:12-1. The “evidence” most, depicts, of this motion mere ministerial involvement County “Acting personal Prosecutor.” That is not the sort remote, compels disqualification. involvement Nor does questioning judge’s unrelated indictment establish reason for 3(e)(1). impartiality pursuant Finally, although an Ad- to Canon Directive, September ministrative issued instructed trial hearing judges disqualify to from a criminal matter themselves judge, previous involving a “who the in his or her require capacity, personally prosecuted,” had that directive did not judge judge disqualify in this matter. The PCR the PCR itself personal personal of such stated that he had no recollection judge’s supports involvement and the indictment assertion that document; sign signed document in he did not someone circumstances, his name. In these we find no reasonable basis for defendant, counsel, public question or the the PCR court’s quarter century ago. impartiality due to the indictment from a B. PCR Court’s Exclusion of Witnesses he Defendant seeks remand on PCR claims because opportunity present during denied the certain witnesses proceeding. permitted present testimony PCR He was not Glazer, capital expert, Esq., or from his defense David from Nardone, Meckel, Dunn, Probation Officer Gloria Detective Gold- en, Fairchild, Goldstein, Ayers, Tariq Investigator P.D. Sheila counsel, original Abatemarco and Hamilton. Background
1. *98 testimony, respect In defendant submitted two certi- Glazer’s credentials, attesting fications. In addition to Glazer’s first certification, 21, 2001, February dated stated that he reviewed in penalty phase transcripts, connection with this matter the Call’s memos, opinion report, affirming Fairchild’s our sen- defendant’s tence, report, biological Nardone’s the affidavit of defendant’s father, records, psychiatric expert reports defendant’s and school evidence, petition. into admitted and defendant’s PCR In a certification, subsequent June 2002 he stated that he also reviewed the additional materials found defendant’s PCR counsel preparation petition, specifically of this PCR the Trenton State records, records, Hospital hospital birth and Mattie’s history. criminal certification,
In the earlier Glazer concluded that defendant’s that, “standing trial trial counsel committed seven errors alone cumulatively representation and were below the standard of usual- ly capital prejudiced accorded in this and defendants State Mr. presentation penalty phase.” Harris of his In his second certification, trial Glazer stated that counsel “overlooked” the newly records, discovered institutional which “would affected have jury’s penalty phase.” deliberations at the court The PCR testimony reviewed the certifications but declined to hear Glazer’s weight.” and “accorded no The court charac- [the certifications] essentially “reiterating] legal terized Glazer’s certifications as points petition,” raised in the PCR and remarked Glazer had significantly capital experience Scully. less than Call and Analysis
2. record,
Having agree reviewed this we with the State proposed that most of the witnesses were not relevant to estab lishing Dunn, Golden, Ayers defendant’s LAC claims. and Fair- child testimony were not relevant because their trial was on Hamilton, attorneys, record. The Abatemarco and did not need to testify they Scully about the file and left Call because the latter could, did, Furthermore, trial speak counsel to that. we reject testify. the asserted need for Probation Officer Meckel legal We earlier determined that there was no basis for defen presentence illegal. dant’s claim that his interview was Defendant specify testimony any does not how from of these would witnesses helped Nardone, have the PCR court his claims. assess As for accept PCR did report, Court and consider her as do It we. deny request
not error to testimony, for her live and we require purpose decline to a remand for that based on our de novo important review of this record. The most witnesses to defen dant’s claim of ineffective assistance of counsel were Call and Scully, they testified. Glazer, respect capital expert, defense defen argument entirely
dant’s
is based
on our discussion of a similar
III,
claim in an earlier matter.
In DiFrisco
we said:
*99
the
for and
“Ordinarily,
necessity
are matters to
admissibility
expert testimony
be determined within the sound exercise of
the trial
discretion
court.” State v.
by
(1995) (citation omitted).
[658
702]
140 N.J.
A.2d
280, 293
a trial
Berry,
Generally,
subject
court will admit
if
at
matter
or its
expert
testimony
issue,
specific
average
might
is one with which an
fact finder
not
application,
be sufficiently
or if the trial
familiar,
court determines that the
would assist it in
expert testimony
understanding
determining
the evidence and
facts in issue.
omitted).]
(parallel
Although to consider such we identified the refusal deficiency, proceeding below that does not render the evidence order, automatically practical approach A as was flawed. lacking expert employed in DiFrisco III such evidence where any, impact, if that had on the and we had to determine what Here, no claims. we discern evaluation of the defendant’s IAC requiring testimony of in order to for the live Glazer basis claims do properly IAC claims. Harris’s IAC evaluate not suggest expert for an witness. His claims are not the need clearly reasoning complicated. presented PCR counsel have alleged prejudiced contending for that the trial errors and basis defendant. claims, straightforward of Harris’s it is not nature
Given surprising certification consists of mere assertions that Glazer’s developing reasoning for those assertions. For and is short on example, failing trial to meet with Glazer faulted counsel for to call him to the stand. That defendant’s natural father and hearing, statement was made before Call testified the PCR participate refused to or where he stated that defendant’s father nothing help in criticism adds that is defendant’s case. Glazer’s testimony during beyond hearing the ken of the court after Call’s evidentiary hearing. that it was for trial counsel not Glazer also stated unreasonable (5)(a) (5)(d) mitigating jury. factors to the to offer the However, reviewed, listing the documents he Glazer did not any consideration of Harris’s criminal or DOC records. indicate Call, hand, very clearly for not other set forth his rationale (and, thus, presenting psychological profile an of Harris adult (5)(a) (5)(d) factors). an submitting the Without idea *100 records, defendant’s position criminal and DOC no Glazer strategy. to assess the of reasonableness Call’s addition, acutely capital experience we are aware of the Scully. Scully had assigned eight Call been to more than capital cases regional and had tried five to As conclusion. Defender, supervisor in the Office the Public he oversaw all capital litigation region. managed in his capital He also litigation regional supervisor individual offices and assisted the capital litigation represented the OPD’s unit. Call had fifteen defendants, capital of whom That eleven received life. considerable experience apparent from our review of the instant claims of ineffective assistance.
3. Conclusion reject argument support request We of his for a remand.
C. “White Victim” Statement by springs
The issue statement created “white victim” testimony. from Dunn’s Dunn testified that she while was walk Harris, ing with looking carjack, for a car to him she asked what plans impending you were for going victim: “I said what people. person, going do with the if it’s a He said black he’s to tie up person, them leave them somewhere. If it’s a white he’s after, going to kill repeated them.” Soon she that statement: “He if person going said it was a white he was to kill them.” Later in testimony, explained her she that she chose not to abandon during Huggins carjacking “because said he was [defendant] they going person to kill the if white.” [were] part Defense counsel for a mistrial moved based motion, surprise testimony.10 court stating The denied the counsel's also was Defense motion based on an outburst made Dunn jury, the court while and counsel were at sidebar. Audible to the Dunn something exclaimed, "Murderer. kill ass," I or similar. Harris they hope your *101 defendant, of and was an admission the
the white victim statement no expressed The court concern about undue thus admissible. regard noting “jury well interviewed with prejudice, that the was aspects racial of this to the case.” by was denied a fair trial the
Defendant now contends that he Dunn to pre-trial to that attributed Harris failure disclose State’s one, kill spare to victim but to a white a stated intention black appellate counsel ineffective for argues he further that was and failing appeal trial of his motion for mistrial to court’s denial discovery rule on violation. based Background 1. difficulty Zarling preparing
Prosecutor
testified to the
he had
testify,
to her
recitations of the details of
Dunn to
due
inconsistent
general
what
testimony. The
structure of her version of
had
her
constant,
Zarling
did
stated
occurred remained
but details
not.
that
had
[he
was
most difficult
ever
to
has]
that she
“the
witness
trial,
prepared
that
for
Dunn
deal with.” He stated
when he
her
That
informed him about Harris’s “white victim” statement.
was
January
January 22,1996,” which
“sometime between
3rd and
was
jury
completed
before
trial
after
selection was
but
Dunn’s
testimo-
ny.
Dunn
that
We note that
testified
cross-examination
she
pled guilty
prosecutors
had told
the statement before she
(which
however,
began;
prior
Harris’s trial
her
state-
before
police—written
writing—do
those reduced to
not
ments
statement).
mention the white victim
aside,
obligation
Timing
prosecutor
had an
admitted
he
chagrined”
“professionally
statement and felt
to disclose the
failing
candidly
stated
that “[i]t
to fulfill it. He
never occurred” to
over,
jury
him turn
Once
selection was
he was
it over.
not
did
primarily concerned with racial issues because the State
174, 716 A.2d
The court took
curative
I,
2. 3:13-3(c)(2) obligates discovery provide Rule all State ..., or by “records of ... statements confessions the defendant summary any against or penal admissions declarations prosecution interest made the defendant are known argues but not recorded.” PCR counsel that the State violated *102 “devastating” that and the was rule effect because Dunn’s state- result, ment turned an into a interracial crime bias crime. As a was fair denied a trial. primarily The State prejudiced contends that defendant not was discovery the violation. Defense counsel onwas notice before trial that there was evidence in the of State’s case dire, knowledge provoked racial bias. That the extensive voir satisfactory appeal. which reviewed found we and on direct Har I, 165-68, Indeed, ris supra, 156 716 N.J. A.2d 458. Call hearing the knowledge testified at PCR of white victim changed questioning statement would have not his voir dire because the defense had “delved into the issues racial over again.” over State,
According “devastating,” to the if it the statement was However, only was because it showed intent kill. that intent Further, was not Huggins debatable because Harris shot twice. emphasizes prosecuted State that the was not as racial case goal kidnap; crime. Defendant’s was to rob and there no was Huggins evidence that he chose he to kill because wanted a white Thus, person. argues apprehen- the State that he avoid killed to kidnapping, carjacking, rape. Lastly, sion for the the State contends that the white victim statement not could have “sand- bagged” it primary the defense because did not with the interfere
518 credibility, or hurt strategy attacking Dunn’s of
defense
theory
pulled
trigger.
Dunn
defense
noted,
for a
based on Dunn’s
As
trial counsel moved
mistrial
statement,
appeal
of
motion.
did not
denial
but defendant
proeedurally
claim that he
Rule 3:22-4
bars defendant’s
in a
would
fair trial unless enforcement of the bar
result
denied a
injustice
contrary
Federal
or would
to the State or
fundamental
be
-4(c). Nonetheless,
3:22-4(b),
R.
the substantive
Constitution.
requires
claim
we determine whether
merit of defendant’s
appeal
trial
appellate
failing
counsel was ineffective
test
of
mistrial motion. The
court’s denial
Strickland/Fritz
appellate
assis
governs claims that
counsel rendered ineffective
Morrison,
540, 546,
473
N.J.Super.
v.
215
522 A.2d
tance. State
denied,
(1987);
(App.Div.1987),
A.2d
107 N.J.
certif.
Moore,
118, 125,
N.J.Super.
v.
As to the reasonableness
granted “only in those
note that a mistrial should be
situations
injustice.”
v.
which would otherwise result
manifest
State
*103
DiRienzo,
360, 383,
(1969);
53 N.J.
PCR asking counsel considerable time trial counsel how knowledge of the white victim statement would have affected their questioning jurors potential However, during voir dire. if Zarling did not learn of jury the statement until selection was completed, questioning then that line of any was irrelevant. event, Call hearing testified the PCR that had he known about the white victim testimony, statement before Dunn’s it would not have strategy affected the defense at all. He stated that defense counsel racially charged treated the case as beginning from the testimony supported by and that the trial record. Dunn Harris, the witness who attributed the white victim statement to and the essence of strategy the defense was to undermine her credibility. persuaded We are not that her attribution of the white victim appreciable statement to Harris had an effect on that strategy.
Furthermore, the defense never was forced to contend with the theory that Harris committed a hate or bias crime. The State never referred to arguing jury the white victim statement in to the Instead, about argued Harris’s motives. it that Harris murdered Huggins escape kidnapping rape. detection for the One argued could have raped Huggins that Harris and tortured be- already cause he had formed person; the intention to kill a white however, argument. the State did not advance that The State’s summation, particular, significance demonstrates the lack of given prosecution. the “white victim” statement in this
520
Thus, that Harris intended although times stated Dunn three shocking new victim, introduce a did not the statement kill a white animosity Harris’s had to defend. trial counsel element through jury others’ to the people was made known white towards Dunn, Tariq and both testimony. example, addition For Huggins as Harris had referred Brian Goss testified already have determined also that we bitch.” We add “white “sufficiently jurors’ racial attitudes was potential dire on the voir I, supra, 156 standards.” Harris constitutional probing to meet jurors questionnaire out a 164, A The filled 716 .2d 458. N.J. at individual the court asked them covering racial attitudes and their noting that given questionnaire, on the ly specific about answers every juror responded ‘unsure’ on the discharged who court “[t]he and the concerning the race of defendant questionnaire whether judgment.” Ibid. affect his or her victim would
3. Conclusion conclusion, victim statement as regard the white
In
we do
change
defense to
its
having
potential
to force the
had the
showing that
requisite
strategy.
has not made the
Defendant
injustice.
in manifest
La-
discovery violation resulted
State’s
207,
Accordingly,
Brutto,
A.2d 335.
supra,
decision
Amendment,
(1989),
given
Eighth
and held that the
L.Ed.2d 256
decency,” prohibits
through “evolving
meaning
standards
its
Atkins, supra,
retardation.
offenders with mental
execution of
Approxi-
Further, engage the PCR court refused to in a “battle of the experts,” hearing and limited court-appointed the Atkins to one psychologist, Friedman, employed by Dr. Marc Friedman. the Developmental experienced State Division of in Disabilities and assessing retardation, individuals for mental reviewed defendant’s IQ defendant, by childhood scores and letters written but did not interview him. IQ alone,
Based on the scores Friedman concluded that defen- dant could not have mental retardation. He also testified that the planning in attempted cover-up Hug- involved his crime and of murder, gins’s suggested intelligence “at least low-aver- [at the] level, age” beyond” Finally, “well mental retardation. Friedman “clearly” produced by concluded that the letters he examined were IQ eighty-to-ninety, someone with an low-average the or intelli- gence, range. complains
Defendant that the PCR court’s exclusive reliance on court-appointed expert process rights violated his due associated process, expert’s testimony the adversarial and that weight records, should be no accorded because it relied on old as opposed contemporary us, psychological to a examination. Before hearing seeks remand for a whether execution alleged is barred due to his mental retardation. Analysis
2. finding In Eighth Atkins that the Amendment forbids the retardation, persons Supreme execution of with mental Court recognized increasing agreement among public, “the American scholars, ibid., legislators, judges,” endorsing view that “mentally categorically culpable retarded offenders [are] less than 2249, at 153 L.Ed.2d average Id. at 122 S.Ct. criminal.” addition, that “some characteristics the Court found
at 347. strength procedural retardation undermine mental steadfastly guards.” Id. capital jurisprudence protections that our at 348. “Because of their at 153 L.Ed.2d at S.Ct. mentally dimin retarded] have impairments [the ... definition information, to commu capacities process ished to understand experience, to nicate, and learn from to abstract from mistakes impulses, and to understand engage logical reasoning, to control 2250, 153 318, 122 L.Ed.2d Id. at S.Ct. the reactions of others.” Menolascino, (citing F. The Evaluation at 345 J. McGee & Justice Retardation in the Criminal with Mental Defendants *106 System and Mental Retardation System, in The Justice Criminal eds.1992); (R. Luckasson, 55, Conley, & G. Bouthilet 58-60 R. Competen Appelbaum Appelbaum, Related & Criminal-Justice Retardation, Psychiatry 14 J. cies in with Mental Defendants 1994)). (Winter L. 487-89 & against executing recognized growing consensus The a Court retarded, mentally imple- to in but allowed discretion states menting its mandate: disagreement To is serious about the execution mentally the extent there retarded____As determining in it is in which offenders are fact retarded offenders, Wainwright, regard in Ford v. leave to the
was our to “we insanity, approach developing to enforce the constitutional Statefs] the task of appropriate ways restriction their execution of sentences.” upon omitted).] (internal [Id. at 317, 122 S.Ct 2242 citations Jersey Legislature yet accept that The State has invitation New implementing to enact the Atkins mandate.11 statutes Senate, are bills the State which have been there Assembly Currently, that address Committees, to their introduced referred Judiciary respective the Atkins mandate. 147; Bill No. The bills Senate Bill No. 1797. Assembly recognized for the constitutional differ in certain requirements respects. Except method we no views in of the various in this respect proposed opinion, express legislative prerogative ologies; would to be a breadth of indeed there appear Atkins. by permitted a. Due Process question proper it is for a turn first to the of whether
We sentencing post-conviction or on re trial court—either before input parties, appoint expert, without from the view—to its own adjudicate capital claim of mental retardation. De hearing he fendant asserts that he was denied a fair because was testimony permitted present expert on his claim of mental hand, asks us to endorse the retardation. On the other the State evidentiary procedure hearings. PCR court’s use future analysis: apply process factors in our due Three [factor] The first is the interest that will be affected the action of the private governmental interest that will affected if the State. The second is the be safeguard or is to be The third is the value of the additional provided. probable sought, safeguards that risk of an erroneous substitute are and the procedural safeguards if of the affected interest those are not deprivation provided. (1985).] 84 L.Ed.2d [Ake Oklahoma, 68, 77, 1087, 1093, v. 470 U.S. 105 S.Ct. capital present permitting factor favors defendant to The first a claim of mental retardation and to his own evidence establish provided by the or a court- counter unfavorable evidence State adjudicated mentally appointed expert. a defendant is Whether can between life and death. “The retarded mean the difference accuracy proceedings places private of criminal interest liberty uniquely compelling.” an life or at risk is almost individual’s 78, 105 at 63. . S.Ct. at 84 L.Ed.2d Id Conversely, any governmental interest in we must search to find *107 case, putting own prohibiting capital defendant from on his Indeed, including testimony expert. own “it is difficult to from his State, economy,” identify that in its any interest of the other than 63, 79, 1094, respect at to the at 105 at 84 L.Ed.2d id. S.Ct. Furthermore, has a capital and of trials. the State time cost adjudica- strong countervailing in the “fair and accurate interest conclude, infra, we that the tion of criminal eases.” Ibid. Because safeguard adjudicating in process important an adversarial is retardation, regard governmental we must claims of mental substantial, light compelling of the interest at stake as “not 524 disposi
interest
both the State
the individual
accurate
79, 105
1094,
tions.” Id. at
at
The weakness of one expert precisely experts disagree, do and with some frequency. procedure provides certainty.” That an “illusion of West, Expert Indigent John M. Services and the Criminal Defen Oklahoma, dant: The Constitutional Mandate v.Ake 84 Mich.L.Rev. (1986). empirical “Considerable evidence on the court-appointed ‘impartial’ experts, particularly use of psychi atrists, fact, judge jury, has shown that the trier whether or
525 invariably accepts expert’s opinion.” (citing Id. at almost 1350 expert opinion in study finding judges followed one Swedish cases; study finding juries accepted in of another U.S. 99% cases; court-appointed expert’s opinion in 995 of 1000 and similar cases); study finding juror acceptance in of 500 see also 499 (ob 741, (D.C.Cir.1974) Addison, 744 v. 498 F.2d United States expert testimony may “posture have of serving that scientific ability mythic infallibility” eyes laymen, in of and therefore “the equally subject produce experts, [the conversant with rebuttal Weston, essential”); matter], may prove to States v. 36 be United (D.D.C.1999) government (granting for F.Supp.2d 12 leave competency, even psychiatric own exam of defendant’s conduct testified). though court-appointed expert process is doubt that the adversarial essential We have no settling conclusion is reinforced claims of mental retardation. Our “factfinding capital proceedings in which the our concern with reliability.” aspire heightened procedures to a standard [must] 399, 411, 2595, 2602, Wainwright, 477 106 91 Ford v. U.S. S.Ct. (1986). L.Ed.2d 347 contingent timing fact or of his execution [I]f upon the Constitution renders the high must with the of a further then that fact be determined fact, establishment being. affecting regard of human for truth a the life or death a that befits decision a to lawful execution the ascertainment of a as Thus, sanity predicate prisoner’s stringent than other of a calls for no less standards those demanded any aspect guarding against proceeding. error a acute need Indeed, capital particularly mental sciences is at inheres in a determination that “in the state present guess a hazardous however conscientious.” best (quoting at v. [Id. 106 at 91 L.Ed.2d 347-48 Solesbee 411-12, 2602-03, S.Ct. (1950) (Frankfurter, 457, 464, J., 70 S.Ct. 94 L.Ed.
Balkcom, 9, 23, U.S. dissenting)).] contingent an execution on defendant The Constitution renders retarded, reason, is a being mentally and for that there assessing guarding against error” “particularly acute need for legitimate claim of retardation. Ibid. expert this psychological his own
A defendant’s access to important preparation for cross-examination matter is also experts court-appointed health or witness. Mental the State’s party’s opposing [or probative questions to ask of the “know the *109 court-appointed] psychiatrists interpret and how to their an Ake, 1095, 80, supra, 470 at 105 at swers.” U.S. S.Ct. 84 L.Ed.2d disadvantaged exposing at 64. A defendant would be shortcom ings court-appointed expert’s testimony expert in a without consul West, 1353; supra, tation. 84 Mich. L.Rev. at see also United (10th Cir.1985) Sloan, 926, (finding v. 776 F. 929 States 2d defen process sought dant was denied due “the where benefit only testimony psychiatrist present of a to the defendant’s side case, expert interpret of the but the assistance of an to also findings expert preparation of an witness and to aid of his cross-examination”). stake, grave private along
The
at
interests
with the value of
context,
testing, particularly
compel
adversarial
in this
the conclu-
process
deprive
capital
sion that it would
be violative
due
to
evidence,
opportunity
present
including expert
defendant of the
to
testimony,
support
a bona
claim of mental retardation.
fide
requisite
process
opportuni-
“The fundamental
of due
of law is the
Ordean,
ty
385, 394,
to be heard.” Grannis v.
234 U.S.
34 S.Ct.
779, 783,
1363,
(1914).
fundamentally
58 L.Ed.
A
1369
trial is
unfair if a defendant does not have “access to the raw materials
integral
Ake,
building
supra,
to the
of an effective defense.”
470
77,
at
105
Supreme
U.S.
S.Ct. at
presenting material
to his
or
relevant
bars consideration of that material
sanity
the factfinder is necessarily inadequate.
[Ford,
477
at 414, 106
349.]
U.S.
S.Ct. at
91 L.Ed.2d at
supra,
emphasize
holding
imply
every
We
that our
capital
does not
defendant who
a claim
right
raises
of mental retardation has the
hearing
present
to a
expert testimony
which to
on that claim.
stake,
private
along
probable
The
interests at
with the
value of an
hearing,
adversarial
are themselves
insufficient warrant a hear-
ing
psychological testimony
when a
claim
is
holding
facially
places the burden on a defen-
unreasonable. Our
showing that he
retardation. That
to make some
has mental
dant
jurisprudence.
is
with federal and state
limitation
consistent
Ake,
Supreme
held that a state is
States
Court
United
insanity
provide
indigent
claiming
who is
required to
an
defendant
only
parte
psychiatrist
if he
to make an ex
with a
“is able
sanity
likely
court
is
showing to the trial
that his
be
threshold
Ake,
82-83,
supra, 470 U.S. at
significant factor in his defense.”
Similarly,
L.Ed.2d at 66.
this Court has held
105 S.Ct.
ground to
defen
that “if defense counsel has reasonable
believe
indigent,” the
]
... and the defendant is
insane[
dant
provided
examining psychiatrist.”12
an
v.
be
State
should
(1965)
added);
Whitlow,
3, 10-11,
(emphasis
Williams, (holding 831 So.2d that defendant’s post-Atkins hearing case-by-ease on entitlement to will be made basis, direction, legislative waiting and that while courts should procedurally pre-trial just competency hearings). treat matter as Finally, post-conviction requiring we are not a defendant on prima a showing review of make mental retardation to facie psychological hearing; fully warrant a and a examination we are arising post-conviction vary aware that cases will on review respect prior However, developed proceedings. of the records require present we will defendant a reasonable basis to be permitted hearing explore possibility a further mental retardation. Application
b. to Harris
Although defendant claims that he is entitled be heard retardation, provide his claim mental not defendant does grounds to order a remand. If defendant submitted reasonable believing might retardation, basis for that he have mental our opinion ordering psycho would foreclose a PCR court from logical examination of assess his claim retardation. However, current record contains sufficient evidence to refute defendant’s mere assertion of mental retardation. of “mental components:
Definitions retardation” include three “(1) (2) impairment; substantial intellectual impact impair- of that (3) life; everyday ment on individual’s appearance of the disability person’s during at birth or childhood.” James W. *111 Ellis, Penalty: Mental Retardation and the Death A Guide to Issues, Legislative State Physical Disability 27 Mental & Rep. L. (Jan./Feb.2003). 11, 13 American The Association on Mental (AAMR) recently published Retardation’s most definition states: 2C:4—5a. statute a The also states that or licensed "qualified psychiatrist psychologist shall, retained the or the if by by prosecution requested, 2C:4-5a(2) hdded). (emphasis be to examine the defendant.” N.J.S.A. permitted In other the statute words, does not the adversarial with the replace process exclusive use of a court-appointed expert.
529
disability
by significant
is
characterized
“Mental Retardation
functioning
adaptive
and
in
behavior
limitations both
intellectual
social,
practical adaptive
conceptual,
and
skills.
expressed
as
AAMR,
disability originates
age eighteen.”
Mental
The
before
Classification,
Supports
Definition,
Systems
and
Retardation:
of
(Ruth
ed.2002) (hereafter
ed.,
AAMR, Mental
1
Luckasson
10th
Retardation).
adopted by
passed
states that have
Definitions
identical,
generally
to the
legislation “are not
but
conform
Atkins
by
AAMR
the American
set
clinical definitions”
forth
Atkins,
Psychiatric
n.
122
supra,
Association.
U.S. at 317
L.Ed,2d
22, 153
n. 22.
n.
at 348
S.Ct. at 2250
purposes
limited
components
our
are the
important
for
The
retardation, and
functioning
persons
of
with mental
intellectual
during
measured
disability
childhood. As
evidence of the
an
tests,
functioning “requires
IQ
intellectual
standard
limited
two
deviations
intelligence to be
standard
individual’s measured
turn,
That,
she
that he or
mean.
indicates
below the statistical
population.”
percent
]£2
approximately the bottom
of the
scores in
Disability
13; see
Ellis,
Physical
Rep.
L.
at
supra, 27 Mental &
5, 122
5, 153
Atkins, supra,
n.
at 2245 n.
also
diagnose Retardation in individuals with between 70 Mental behavior.”). significant adaptive and 75 exhibit deficits in who literature, In accordance with the health some mental states IQ into an have built their statutes score as a threshold or as See, creating presumption a rebuttable of mental retardation. 5/114-15(d) (2003) (“An e.g., intelligence 725 ILL. COMP. STAT. (IQ) quotient presumptive of 75 or is of below evidence mental (Banks-Bald retardation.”); 532.130(2) § KY. ANN. REV. STAT. (“ 2003) ‘Significant subaverage general win intellectual function ing’ quotient below.”); intelligent is as an defined 70 or MD. ANN., 2-202(b)(1) (2002) (requisite § CODE Criminal law intellec intelligence quotient tual deficits “shown an of 70 or below on individually test”); intelligence quotient an administered NEB. (2003) § (IQ seventy REV. 28-105.01 below STAT. or “shall be retardation”); presumptive evidence of mental STAT. N.M. ANN. (West 2004) (same); § 31-20A-2.1 S.D. CODIFIED LAWS (2004) (an § IQ seventy 23A-27A-26.2 presumptive above is evi retardation). having dence of not mental child, IQ took Defendant several as a tests the results are this The record. scores are relevant because intellectual and “ adaptive deficits associated with mental retardation ‘manifest[ ] ” Atkins, age supra, before 18.’ 122 U.S. at 309 n. S.Ct. 3, 153 (citing AAMR, 2245 n. L.Ed.2d at n. Mental Retarda 5). tion, supra, at Defendant’s childhood records formed the opinions only Friedman, bases of the of not Dr. also but of Dr. Gruen, penalty phase. who testified for defendant at Review of defendant’s childhood records lead conclusion presented that he has a bona claim of mental retardation. fide said, emphasized by That two test results are defendant. Ac- cording probation IQ test, report, to a took an noted as test, Elementary” years the “Cal. M.M. when he was nine old and Also, seventy-two. a score of achieved when defendant years old, a psychological screening about seventeen test at Boys IQ seventy-five. the State Home for an indicated As noted, although significantly subaverage functioning intellectual *113 below, IQ seventy or is generally to reflect an of “there considered IQ, approximately points assessing in measurement of 5 a error instrument____Thus, vary although may this from instrument to in possible diagnose Mental individuals with it is Retardation significant adaptive deficits IQs 70 75 who exhibit between and DSM-IV-TR, 41-42; Weatherspoon supra, v. Mas behavior.” sanari, (E.D.Mo.2002) DSM- (quoting F.Supp.2d ). IV-TR
However, many IQ other test re- defendant’s record includes strongly suggest that if of Defendant’s scores his results sults. seventy-two seventy-five capaci- do his not reflect intellectual and abilities; ties, they the other it is because underestimated greater results and comments from examiners reflect intellectual February In defendant was administered the “Cal. abilities. eighty-eight. April a In M.M.” instrument and obtained score old, years about he took the when defendant was ten (WISC) test achieved Intelligence of Children and Seale Wechsler scale, following ninety-three eighty-one on verbal the scores: the scale, eighty-five the full scale. In an performance and on on the “Am- examining psychologist wrote: accompanying report, the average of the functioning range. Two five subtest brose is the average are in range are in dull normal and two the scores vocabulary range. This range. is in the defective The subtest development gauges language is influenced cultural test which functioning is opportunities.” report concludes: “Ambrose The year maturi- average range and is retarded a below mental though intelligence he ty____It is low would seem that Ambrose’s anywhere placement.” near educable class (date illegible) psychologist that a reports Another school record found IQ defendant’s administered an test verbal, seventy-nine for functioning declining. He received a be seventy-eight and a on the full scale. eighty-two performance, range mental above the retardation. Those scores are also Moreover, quality examining psychologist “the wrote a indicate responses on Rorshach would [defendant’s] previous [higher] poten- test results are closer to his intellectual defendant, psychologist tial.” on his Based discussions concluded, poor may “Ambrose’s results tied in test be with his feeling during testing proce- anxious more threatened and dure.”
A June 1962 letter from a school social worker indicates that previously placed defendant had been in an educable class “be- a disturbing regular grade cause he was influence in the fourth to function on same unable level as the others.” The justify placement letter does not based retardation. fact, worker, conducting psychological the social after exami- nation, concluded that could average Harris “function at low level.” *114 1964, January just years old,
In before defendant turned twelve again him, the test was WISC administered to and he a obtained IQ eighty. later, full-scale score of Six months another school psychologist test, administered the WISC and defendant obtained following eighty scale, eighty the results: on the verbal on the performance scale, seventy-eight and Finally, on the scale. full Boys for State Home administered another WISC test to 1966, performance IQ defendant in eighty- his of indicated an three, by was “probably which deemed dull normal” the evaluator. compelling
Even more is assessment of defendant’s institu- tional expert records his own health testifying mental at the penalty phase Gruen, of defendant’s trial. Dr. psychologist a child defendant, testifying strongly disagreed any diagnosis for “mildly mentally retarded” made of defendant when he was a child. diagnosis Gruen testified that not he could “fathom” such a [IQ] “because mildly mentally scores that saw [he] were not testified, retarded.” He perspective, “I believe in historical mentally early retarded dumping grounds classes in the '60’s were every for kind of problem behavior and underachievement public faced the schools.” placing Gruen testified that defendant mentally in classes with children retarded would cause conflict and anger within him. post-conviction that records attached to cases
We realize vary, depending at trial and at the review will on the issues raised matter, phase. present we for penalty In the combed record psy- support assertion a some evidence to defendant’s bare chological is whether he has evaluation needed determine record, including opinion of defen- mental retardation. The provides support no his expert penalty phase, own at the for dant’s indeed, necessary; psychological claim a examination Grell, 57, speaks 205 Ariz. against record his claim. State v. Cf. (2003) 1234, (ordering for trial P.3d 1238-41 remand court 72, IQ hearing conduct where childhood records showed scores 67, 69, 70, experts penalty phase and defense retardation); State, v. testified that defendant had Goodin (Miss.2003) (allowing proceed PCR defendant So.2d 277-78 fifty IQ ranged from pre-trial where scores on Atkins issue Indeed, provided any from sixty-five). has not affidavit reviewed defendant’s childhood rec- qualified psychologist who open that it is even an ords and letters and who concluded as has mental retardation. With- question to whether defendant request psychological for out a reasonable basis examination, hearing not to a on his conclude that he is entitled we retardation. claim mental
3. Conclusion defendant, sum, presented by he on the record based The of a hearing on his retardation claim. use to a mental entitled *115 expert violated defendant’s court-appointed would have neutral claim had he a bona of mental process rights presented due fide a legitimate raises hold that where retardation. We retardation, by the procedure used trial court claim of mental the process. satisfy not the demands of due would Ring E. application that his death sentence raises in the PCR
Defendant the indictment failed to include be because the must vacated 534
aggravating
alleged by
factors
the
He
to have
State.
seeks
Martini,
holding
176,
Court to reconsider its
in
v.
131 N.J.
State
(1993),
light Apprendi
Jersey,
of
v.
In State v.
974
N.J.
A.2d
(Fortin II),
holding
light
we did
our
in
in
reexamine
Martini
Apprendi
Ring,
and concluded that
new rule should obtain.
645-46,
974.
aggravating
Id. at
843 A.2d
We held
factors
grand jury
capital
must be submitted to the
in all
cases
had
yet
phase.
649-50,
penalty
reached
Id.
Fortin’s Only controls in if this matter. defendant’s convictions were his death reversed or sentence vacat- ed, required aggravating would the State be submit factors grand jury. present posture, In its defendant’s indictment fully comported interpretation with Martini’s of the State Consti- tution. The failure to allege aggravating indictment require vacating factors does not his death sentence.
VII.
application
post-conviction
Defendant’s
relief is denied.
concurring
part
Justice
dissenting
part.
LONG
agreement
I
full
am in
with
deny
the Court’s determination to
post-conviction
petition
relief
claim
based on his
separately
ineffective assistance of counsel.
I write
to reiterate
my previously expressed
inflammatory pretrial publicity,
view that
Harris,
202-10, 212-18,
State
recounted
v.
156 N.J.
(1998) (Handler, J., dissenting),
A.2d 458
coupled
trial
wholly
it,
inadequate
court’s
efforts to contain
a realistic
created
*116
fair
v.
trial. State
did
receive
likelihood
(2000),
J.,
Long,
dissenting.
303,
For
ORDERED costs incurred appropriate administrative sight Committee for matter; and is further it prosecution this made record of this matter be that the entire ORDERED attorney this law of respondent’s as an part of file permanent State.