STATE OF NEW JERSEY v. MICHAEL WESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1310-07T41310-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL WESTER,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 9, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-01-00062.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael Wester appeals from an order entered on January 2, 2007 denying his petition for post-conviction relief (PCR). We affirm.

A judgment of conviction was entered on March 28, 2002 after a jury found defendant guilty of first degree murder, N.J.S.A. 2C:11-3, for killing his wife in 1998. He was sentenced to a term of life subject to thirty years parole ineligibility.

On April 26, 2004, we affirmed on direct appeal. The Supreme Court denied certification on September 10, 2004, State v. Wester, 181 N.J. 546 (2004), and defendant filed his PCR petition on October 2, 2004.

I

At a pre-trial conference on November 9, 2001, defendant was offered a plea agreement for aggravated manslaughter which would have resulted in a sentence capped at twenty years subject to seventeen years parole ineligibility. His attorney stated on the record that defendant "vehemently rejected" this offer. Defendant elected to proceed to trial, maintaining his innocence throughout. Defendant now claims he was so heavily medicated at the time of the pre-trial conference that he could not understand the plea offer. He contends that he would have accepted the plea offer if he had been of clear mind.

In his PCR petition, he claimed that he was denied effective assistance of counsel because (1) his trial attorney did not convey the plea bargain to him effectively and did not raise a psychiatric defense; and (2) his appellate attorney did not raise the issue of his unshaven and unkempt appearance before the jury on appeal.

The PCR court found that defendant was essentially playing "Monday morning quarterback," trying to undo with the benefit of hindsight his decision to reject the plea offer and go to trial. The court found defendant's claims to be a "fabrication" clearly inconsistent with the well-established record in the case and denied his petition.

In this appeal, defendant argues:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL.

A. Trial Counsel Was Constitutionally Deficient For Failing To Determine The Inability Of Defendant To Understand The Plea Offer.

B. Trial Counsel Was Constitutionally Deficient For Failing To Investigate A Psychiatric/Diminished Capacity Defense Due To Defendant's Mental Condition.

C. Appellate Counsel Was Constitutionally Deficient For Failing To Raise The Issue Of Defendant's Unkempt Appearance Before The Jury.

II

To establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland test, "a reviewing court must determine: (1) whether counsel's performance 'fell below an objective standard of reasonableness,' and if so, (2) whether there exists a 'reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland, supra, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698).

The first prong of the Strickland test can be satisfied by a showing that counsel's acts or omissions, considered in light of all the circumstances of the case, fell "outside the wide range of professionally competent assistance." Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). In applying this prong "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). In assessing the reasonableness of counsel's assistance, a reviewing court must assess the performance of counsel with "a heavy measure of deference to counsel's judgments." State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

To rebut this strong presumption, a defendant must prove that trial counsel's actions were not "sound trial strategy." Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchallengeable.'" State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).

Counsel's performance will be considered deficient if counsel fails "to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Id. at 618 (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Finally, in order to evaluate a defendant's ineffective-assistance-of-counsel claim, a court "'must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

In order to satisfy the second prong of the Strickland test, a defendant must show that the error committed was so serious that it undermines confidence in the outcome of the proceedings. Id. at 315 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland, supra, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.

If a defendant does not satisfy both prongs of the Strickland test, "'it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

III

Here, defendant presents medical records, prison notes, prescriptions and charts in an effort to support his argument that he was heavily medicated and did not understand the plea offer that was extended to him. A substantial number of the documents presented by defendant were obtained from the prison's medical records department.

Defendant's argument rests principally on an undated report by Daniel Greenwald, M.D., prepared at least four and a half years after defendant's conviction and without Dr. Greenwald ever having met defendant. Dr. Greenwald relied on the pre-trial transcripts, medical records from the Ocean County Jail from August 1998 to some time in 2002 "with many gaps," and defendant's medical records from his hospitalization in October 1998, prior to the murder of his wife. Based on these documents, Dr. Greenwald diagnosed defendant as "suffering from a combination of" alcohol dependence, dependence and/or abuse of various other substances, personality disorder and depression secondary to those three diagnoses.

Noting that "[t]he records from the jail are not complete," "[t]here are gaps in time," and "the examinations [of defendant] were apparently not done with a forensic object in mind," Dr. Greenwald concluded that "[i]t is highly likely the defendant's condition interfered with his ability to grasp and analyze the strength and weakness of the prosecution's case and his ability to come to a rational conclusion about accepting a plea bargain."

This report is unconvincing when weighed against the report of John J. Verdon, M.D., a psychiatrist who examined and evaluated defendant on January 11, 2002, before trial commenced at defense counsel's request because counsel was "concerned about [defendant's] ability to focus on topics at hand, his frequent yawning, and complaint of sleepiness." Dr. Verdon reviewed "scattered medical records from . . . the Ocean County Jail, which encompass August 30, 1999 through September 18, 2001." During the examination, defendant "indicated that he was still on multiple medications, including thioridazine 100 mg. at bedtime (an antipsychotic medication); trazodone 100 mg. at bedtime (a sedating antidepressant medication); as well as lithium carbonate 300 mg. in the morning and 450 mg. at night." Dr. Verdon concluded that the psychotropic medications "have no therapeutic benefit to the defendant," and strongly recommended "that these medications be halted promptly." He noted that at the time of his examination, defendant "was oriented to person, place, and time," and that "[h]is recent memory and remote memory were intact."

At the November 9, 2001 pre-trial conference, during which the plea offer was discussed, defendant responded appropriately each time he was called upon to speak. He stated his age and followed the court's calculation of his age upon release under both the plea offer and a first degree murder conviction. Contrary to defendant's PCR claim, the record indicates that defense counsel was quite concerned with his ability to understand the proceedings and behave appropriately at trial.

Moreover, a defendant who denies guilt and maintains innocence, as did defendant here, may be equitably estopped from later claiming that he did not have the opportunity to plead guilty to the offense. See, e.g., McDaniel v. State, 621 S.E.2d 424, 426 (Ga. 2005). At the pre-trial conference, defendant concurred with his attorney's representation that he had earlier "vehemently rejected" the plea offer, and in fact confirmed that his feelings were still the same. His defense throughout the trial, as well as on appeal, was that he was not present when his wife was murdered and that someone else must have killed her. Defendant's claim of innocence throughout the trial and appeal made it impossible for him to give a factual basis and enter a guilty plea.

We find nothing in the record to support defendant's claim that trial counsel was ineffective in explaining the plea offer or that defendant failed to understand the offer and its consequences.

IV

Defendant relies on Savage, supra, 120 N.J. at 618, for his argument that his trial counsel's failure to pursue a psychiatric/diminished capacity defense constituted ineffective assistance of counsel. In Savage, the Court held that defense counsel's failure to pursue such a defense, without proper investigation, could constitute deficient performance because "counsel has a duty to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' A failure to do so will render the lawyer's performance deficient." 120 N.J. at 618 (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Defendant contends that an evidentiary hearing was necessary to determine whether his trial counsel investigated a psychiatric/diminished capacity defense.

In Savage, the defendant had run down streets naked, openly hallucinated, and abused cocaine. 120 N.J. at 618-19. Here, defendant was fully lucid, cooperative, and offered detailed explanations for where he was and what he was doing when his wife disappeared. In addition, Dr. Verdon - who examined defendant at counsel's request prior to trial - indicated that defendant was oriented to his surroundings, had intact memory, and was able to communicate. Under these circumstances, it was objectively reasonable for counsel to conclude that no diminished capacity or insanity defense was available to defendant and that his client's best defensive strategy was to create reasonable doubt in the minds of the jurors as to his involvement in his wife's murder, especially given that the State lacked direct evidence tying defendant to the crime. As the State points out in its brief, a "diminished capacity defense would have been inconsistent with and would have diluted the reasonable doubt defense such that an acquittal would have been impossible . . . . Defendant was part and parcel of the chosen defense, and he should not be allowed to undo all the proceedings now because his strategy failed."

The PCR court noted that "there's nothing before this court presently to lead any reasonable practitioner . . . to believe that there was a viable diminished capacity defense that existed then and was left unexplored." We agree. Defendant's argument does not satisfy the first prong of the Strickland test.

V

Defendant finally argues that his unkempt appearance before the jury, caused by the jail's not allowing him to shave, was highly prejudicial and should have been raised by counsel on appeal.

Defense counsel did raise the issue of defendant's appearance at trial. The court responded with a special instruction to the jury:

[Defendant] wanted me, through counsel, to apologize to you for what may be his appearance of being a little unkempt, and explain to you how that happens.

He hasn't been able to shave in the jail for a couple of days, because the jail, in the normal course of events, has a schedule, and everybody that's an inmate in the Ocean County Jail has to live by that schedule. They have shaving privileges on certain days, and other privileges on other days. And that's supposed to change when somebody comes to trial.

And through some administrative foul-up, that he hasn't had the ability to be clean-shaven in your presence. And he wanted me to explain that to you so that you wouldn't think that he's unkempt in the clean-shaven department because he's doing that voluntarily.

We'll try and get the Department of Corrections to allow [defendant] extra privileges in that regard, so that he won't give the appearance that he's intentionally being unkempt. Okay?

Satisfied that this jury instruction had overcome any prejudicial effect which defendant's appearance might have created in the jurors' minds, counsel apparently chose not to pursue the issue any further on appeal. This strategic decision does not rise to the level of objective unreasonableness required under the first prong of Strickland. Martini, supra, 160 N.J. at 266.

Defendant relied on State v. Maisonet, 166 N.J. 9, 20-21 (2001), in support of this argument. Maisonet, however, was limited to its facts, and was meant to be construed narrowly. In Maisonet, the Court stated:

[W]e emphasize that our holding is based on a number of factors not likely to be present in future cases: defendant was deprived of all necessary amenities with no justification by the State; his physical condition was palpable to any reasonable observer; he testified before the jury and thus put his truthfulness directly in issue; and Marquez, the co-defendant, who was apparently neatly groomed because he was free on bail, testified against defendant in what essentially became a battle of credibility.

[166 N.J. at 22.]

Here, defendant had been unable to shave, but the trial court's instruction to the jury at his request ameliorated any potential prejudice to him.

Affirmed.

(continued)

(continued)

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A-1310-07T4

April 20, 2009