STATE OF NEW JERSEY v. JOSEPH RICHARDSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6374-05T4
6374-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH RICHARDSON,

Defendant-Appellant.

 

Submitted December 5, 2007 Decided

Before Judges Lisa and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-10-1683.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Richardson appeals from an order denying his post conviction relief (PCR) petition. A jury convicted defendant of first degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); first degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts two and seven); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (counts three, eight, twelve and fifteen); third degree aggravated assault with a weapon, contrary to N.J.S.A. 2C:12-1b(2) (counts four, nine, thirteen and sixteen); third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7) (counts five and ten); and fourth degree aggravated assault by pointing a firearm, contrary to N.J.S.A. 2C:12-1b(4) (counts six, eleven, eighteen and twenty-one); third degree criminal restraint, contrary to N.J.S.A. 2C:13-2 (count nineteen); third degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count twenty); second degree possession of firearms for unlawful purposes, contrary to N.J.S.A. 2C:39-4a (count twenty-two); third degree unlawful possession of weapons (handguns), contrary to N.J.S.A. 2C:39-5b (count twenty-three); and fourth degree prohibited weapons and devices (defaced firearms), contrary to N.J.S.A. 2C:39-3d (count twenty-four). Defendant was sentenced to an aggregate term of thirty-four years imprisonment with a seventeen-year period of parole ineligibility.

Defendant filed a direct appeal, which was heard on our Excessive Sentence Oral Argument Calendar. See R. 2:9-11. We affirmed and the Supreme Court denied defendant's petition for certification. State v. Richardson, 179 N.J. 369 (2003). Defendant then filed his PCR petition.

On appeal, defendant contends the trial judge erred in denying his petition, which was based upon ineffective assistance of counsel. Defendant argues his trial counsel was ineffective because he failed to subpoena witnesses and object to a "net opinion." We reject these contentions and affirm.

I

The following facts are derived from the trial record. Defendant planned to attend the University of Norfolk in Virginia in August 1997. Approximately one week before the incident at issue, defendant became stressed about attending college and leaving his girlfriend. To alleviate the stress, defendant drank two forty-ounce portions of Saint Ives malt liquor per day, smoked six to eight blunts of marijuana per day, and fasted to "cleanse [his] system out," and "clear[] [his] mind up." Defendant did not sleep for four to five days before the incident, stayed awake reading the Bible and Leviathan, both of which were "telling [him] things[,]" and believed the world was going to end. Defendant also traveled to Harlem to purchase a loaded gun for protection at college.

On June 28, 1997, Nicky Bernal, his wife, their children, and about thirty other people attended a birthday party in the backyard of 173 Liberty Street in Englewood. Between 4:30 p.m. and 5:00 p.m., Bernal was in the backyard playing with one of his children when he saw a "dark young man," whom he later identified as defendant, enter the driveway "almost like halfway," and stand next to a parked car. Defendant appeared to be "spraying the garden" plants in the driveway, and stood by a fence for fifteen to twenty minutes. Defendant claimed he heard voices in his head telling him that the party guests were Colombian drug lords doing some type of deal, and that he should go into the yard to "see what was going on." He eventually entered the yard, aimed a gun at Bernal, announced this was a "holdup," and screamed to "let [him] see the money" or else he was going to kill Bernal, who was two feet away.

After once again demanding money, defendant aimed the gun at Bernal and pulled the trigger, but the gun did not fire. Defendant then pointed the gun at the other guests, stating, "I want money, I want money, give me money." As to what happened next, Bernal testified as follows:

So then he got close to me, and he grabbed [Bernal's child] by her hair, and hauled her to him. And she groaned and he put the revolver to her head and told her to . . . shut up.

. . . .

[H]e grabbed her by the hair and pulled [her] towards him. And he put her in front of him and the child was crying and yelling and he put the gun and kept saying shut up, shut up. . . .

So then I . . . lifted the hand with [Bernal's wife's] pocketbook, I opened the zipper and I had money. I had the two checks from my two jobs. . . . I had the rent money and I had the jewelry of my wife. . . .

I showed him the envelopes with the money and I said to him don't do anything to her, I have money. I'll give you the money but give me my daughter.

. . . .

And I gave him the bag, I threw it at him and he pointed the gun at me again and he shot again . . . , and then I saw that [the gun] had no bullets. But he had my daughter in front of me.

So then he said [if] you follow me, I'm going to kill you. And he repeated that as he went backwards. He took the bag and ran, and . . . every time he stumbled he would get up and go again and go like this, click click as he was running.

He, he went out of the driveway and he ran down towards Knickerbocker [Road, Englewood].

Assuming the gun was fake, Bernal and Mauricio Leon got into Bernal's car and chased defendant. The pair reached defendant at 100 Knickerbocker Road, and "put him against some bushes and some bins." Defendant looked surprised at first, but then said "I told you not to chase me. Now I'm gonna kill you." Defendant jumped on a car and pulled the trigger twice, but the gun did not fire. The three men then struggled for approximately five to eight minutes, with defendant hitting Bernal with the gun "like a hammer," and punching both Bernal and Leon, causing them to bleed. The men held defendant until the police arrived. As the police raised defendant to his feet, a .25 caliber semi-automatic pistol fell to the ground. The police seized the gun, which was loaded with six rounds in a magazine but no rounds in the chamber. The police also seized a blunt, which tested positive for marijuana. Defendant's urine also tested positive for marijuana.

Defendant did not dispute evidence presented at trial about how the incident occurred. He merely testified that he had no independent recollection of the incident, other than saying "show me the money." He asserted intoxication and diminished capacity defenses, positing that due to his mental state at the time of the incident, he was not capable of acting purposely, knowingly, or forming any intent necessary to commit an offense.

Defendant's neuropsychiatric expert, Dr. David Gallina, testified that defendant suffered from both alcohol and marijuana intoxication and hypoglycemia at the time of the incident, which, combined with lack of food and sleep, resulted in a substance-induced psychotic disorder which rendered him "incapable of acting in a purposeful and knowing manner[.]" However, the doctor admitted it is possible for people with psychoses to form purpose and knowledge.

The State's forensic psychiatric expert, Dr. Steven Simring, testified as follows:

My opinion is that notwithstanding the psychosis, that is that I -- that it is my opinion that he did, indeed, have a drug induced cannabis, a marijuana induced psychosis. That despite that he was still able to act with purpose and knowledge.

. . . .

There is not a direct correlation between psychosis and ability to act with purpose and knowledge. That is, it's a somewhat tricky concept. I think it could probably best be explained by the fact that in a psychiatric hospital or in our psychiatric hospital where individuals may suffer with far more severe psychiatric illnesses than Mr. Richardson, in many of the things they do in life they can do them with full purpose and knowledge. Whether it's drive a car or go to the bathroom or eat food or read a book or make choices. That is, the fact that one has a psychiatric disorder, even a severe psychiatric disorder, doesn't necessarily mean that you cannot act with purpose and knowledge.

. . . .

My difference of opinion with my colleagues is that based on not just what he said, but by the witness description that he was, despite the fact of having psychotic thinking, he was able to act with purpose and knowledge in terms of the specific acts that he took, holding a gun reportedly, pulling a trigger, making statements about money, fleeing with a pocketbook. That if, indeed, a jury finds that these things happened, that he was able to act with purpose and knowledge.

II

In his PCR petition defendant contended that because the case focused on his mental state during the incident, trial counsel should have subpoenaed his friends and the doctors from Hackensack University Medical Center and Bergen Pines County Hospital who examined him on the day of the incident. Defendant argued these individuals had first-hand knowledge of his mental state prior to and after the incident, and their testimony would have been more beneficial than the testimony of Drs. Gallina and Simring, both of whom saw defendant long after his psychotic condition subsided. Defendant also contended trial counsel was ineffective for failing to object to Dr. Simring's testimony, which defendant claimed was inadmissible net opinion "not based on sufficient facts[.]"

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel has the heavy burden of proving that trial counsel committed serious professional errors, and that those errors prejudiced him or her by causing an unfair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by proof creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Judicial scrutiny of counsel's performance must be highly deferential. A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. State v. Fritz, 105 N.J. 42, 60-61 (1987). That standard does not require "the best of attorneys," but rather that the attorney not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). The strong presumption that counsel has exercised sound trial strategy is grounded in "the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial[.]" State v. Arthur, 184 N.J. 307, 319 (2005).

Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing Davis, supra, 116 N.J. at 357), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Deciding which witnesses to call to the stand is "an art," and we must be "highly deferential" to such choices. Arthur, supra, 184 N.J. at 321 (quoting Strickland, supra, 466 U.S. at 681, 689, 693, 104 S. Ct. at 2061, 2065, 2067, 80 L. Ed. 2d at 681, 694, 697). Furthermore,

[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.

[Id. at 320-21 (citing Roberto Aron & Jonathan L. Rosner, How to Prepare Witnesses for Trial 2.02 -.14 (2d ed.1998)).]

It is against these standards we review defendant's claims. We agree with Judge Lipton that trial counsel was effective. Because evidence of how the incident occurred and defendant's medical records, which included defendant's urine test results and reports from the doctors who treated defendant on the day of the incident, were undisputed, testimony from the doctors who examined defendant on the day of the incident would not have mitigated what occurred, and would have been unnecessary.

Also, the trial focused on the day of the incident, and, therefore, that day was the only relevant day on which defendant's state of mind mattered. Drs. Gallina and Simring both testified that defendant suffered from alcohol and marijuana intoxication that day. Thus, testimony from defendant's friends would have been cumulative, irrelevant, and of little value because they were not qualified to opine as to his capability to form criminal intent. Trial counsel's strategic decision not to call these witnesses to testify at trial did not constitute deficient professional conduct and therefore does not support defendant's claim of ineffective assistance of counsel.

We also agree with Judge Lipton that trial counsel was not ineffective for failing to object to Dr. Simring's alleged inadmissible net opinion. "Under the 'net opinion' rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citing Johnson v. Salem Corp., 97 N.J. 78, 91 (1984)). An expert must "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). Thus, assuming all other requirements of N.J.R.E. 703 are met, "[e]vidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Id. at 403 (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)).

As long as some facts or data are provided to support an expert's findings, rather than bare conclusions standing alone with no explanations, the court will not render such conclusions "net opinions." See State v. Townsend, 186 N.J. 473, 494-95 (2006) (doctor's expert opinion that women with battered woman's syndrome commonly lie about the source of their injuries held to not be net opinion because it was based upon her education and considerable experience counseling battered women and medical information with which she stayed current); but see Nolan v. First Colony Life Ins. Co., 345 N.J. Super. 142, 155 (App. Div. 2001) (doctor's certification that there existed a reasonable degree of medical probability that blood test indicated a potentially life-threatening disorder was net opinion because that expert offered no facts or basis to support the certification).

Here, Dr. Simring's testimony was not a net opinion. The doctor stated that in formulating his opinions, he relied upon a number of things, including the medical and police records, an interview with defendant, witness and victim statements, toxicology reports, and Dr. Gallina's report. In concluding defendant was capable of acting purposely and knowingly, the doctor relied on evidence of other acts defendant performed while committing the crimes, such as holding the gun and pulling the trigger. The doctor's testimony was supported by his professional experience and by factual evidence in the record, and was not a net opinion.

Thus, counsel was not ineffective for failing to object and, had he objected, the result of the proceedings would not have changed because the objection would have been overruled. Therefore, neither prong of the Strickland test was met.

Affirmed.

Count seven is incorrectly designated in the indictment and judgment of conviction as a crime of the third degree.

Defendant testified at trial.

A "blunt" is a large marijuana cigarette made from blunt cigar paper.

A ballistics and firearms expert testified at trial that the gun was operable and capable of causing death or serious bodily injury.

(continued)

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A-6374-05T4

March 18, 2008