STATE OF NEW JERSEY v. CHRISTOPHER FLYNN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5536-07T45536-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER FLYNN,

Defendant-Appellant.

_______________________________________

 

Submitted March 31, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-06-0336.

Law Offices of Robin Kay Lord, L.L.C., attorneys for appellant (Robin Kay Lord and Richard W. Berg, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Christopher Flynn appeals from an order entered by the trial court on July 16, 2008, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In February 1999, David Wood (Wood) was found dead in a wooded area of Hillsborough, New Jersey. He died of multiple stab wounds to his chest and stomach. The investigation led the police to Keith Descoteau (Descoteau). The police learned that Wood was last seen in the company of defendant and Anthony Leahey (Leahey).

Descoteau told the police that Wood had been having an affair with his wife Michelle Descoteau (Michelle) while they were separated and he gave defendant and Leahey knives with which to kill Wood. Descoteau said that he later changed his mind and got the knives back but, prior to February 17, 1999, he again gave the knives to defendant and Leahey because they intended to rob someone.

Descoteau admitted, however, that on the morning of February 18, 1999, defendant and Leahey returned to his home and said that they had killed Wood. Descoteau assisted defendant and Leahey in cleaning the knives and disposing of other evidence. Michelle informed the police that, on the morning of February 18, 1999, she drove defendant and Leahey to the bus terminal, where they caught a bus to Florida. The investigators obtained an arrest warrant for defendant and Leahey.

They were apprehended at the home of Leahey's mother in Clearwater, Florida. They were informed of their Miranda rights, and gave statements about Wood's murder. Defendant said that on the night of the murder, he and Leahey were with Wood at Descoteau's home. Defendant and Leahey changed into black clothing. They left Descoteau's home and went with Wood along a darkened path.

There, defendant stabbed Wood twice in the stomach. According to defendant, Wood emptied his pockets and begged for his life. Defendant picked up Wood's cell phone and wallet and stepped away. Leahey then stabbed Wood an additional three or four times in the heart.

Defendant and Leahey dragged Wood's body to a secluded area, and defendant stabbed Wood again to be sure that he was dead. Defendant and Leahey took Wood's shirt, jacket and some of his personal items, and returned to Descoteau's home. They informed Descoteau that they had killed Wood.

Defendant was charged with the purposeful murder of Wood, contrary to N.J.S.A. 2C:11-3a(1) and 2C:2-6; knowingly causing Wood's death or causing serious bodily injury that resulted in Wood's death, contrary to N.J.S.A. 2C:11-3a(2) and 2C:2-6; felony murder, contrary to N.J.S.A. 2C:11-3a and 2C:2-6; possession of a weapon (knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 and 2C:2-6; and unlawful possession of a weapon (knife), contrary to N.J.S.A. 2C:39-5 and 2C:2-6.

On August 10, 2000, defendant pled guilty to all of the charges. Defendant agreed to testify against Descoteau and Leahey and, in return, the State agreed to recommend that the trial court sentence defendant to a maximum term of thirty years of incarceration, to be served without the possibility for parole.

Leahey pled guilty and defendant testified at Descoteau's trial. Descoteau was found guilty of second-degree reckless manslaughter and third-degree possession of a weapon for an unlawful purpose.

On April 12, 2002, defendant filed a motion to withdraw his guilty plea. Defendant alleged that his plea was not knowing or voluntary. He asserted that he had been pressured into accepting the plea by his trial counsel, Walter Murawinski (Murawinski), and Leahey's attorney.

Defendant additionally asserted that when he entered his plea, it was his understanding that, regardless of the sentence imposed, he would become eligible for parole after serving eighty-five percent of the sentence. Defendant said that he was never told that the eighty-five percent rule did not apply to his case. Defendant also said that had he been informed that the eighty-five percent rule did not apply to him, he would not have accepted the plea.

Defendant further claimed that he was denied the effective assistance of counsel because Murawinski failed to file pre-trial motions, including a motion to suppress his statements and certain evidence. He also said that Murawinski did not properly investigate his possible defenses.

In an affidavit submitted in response to the motion, Murawinski stated that he had explored various defenses with defendant, including duress, intoxication and a psychological defense. Murawinski asserted that defendant chose to waive these defenses and take advantage of the plea offer.

The trial court held a hearing on defendant's motion to withdraw the plea, at which Murawinski testified concerning the plea and his representation of defendant. The court denied the motion, finding that the plea was knowing and voluntary. The court also found no merit in defendant's assertion that he had been denied the effective assistance of counsel. The court sentenced defendant in accordance with his plea and entered a judgment of conviction dated August 19, 2002.

Defendant appealed from the judgment and raised the following issues:

I. The Superior Court, Law Division, erred in denying Mr. Flynn's motion to withdraw his guilty plea, because Mr. Flynn's plea was not voluntary, knowing and intelligent.

A. Mr. Flynn was misinformed of the potential penal consequences of the murder charges against him, because he was advised that he would be subject to the No Early Release Act's 85% parole ineligibility period when the No Early Release Act conflicted with the murder statute.

B. Mr. Flynn's guilty plea was not entered voluntarily because it was entered only after succumbing to pressure from his attorney, and on his attorney's advice that he would not be acquitted at trial.

C. Mr. Flynn was deprived of due process of law, and he is therefore entitled to withdraw his guilty plea.

We rejected these arguments and affirmed. State v. Flynn, No. A-622-02 (App. Div. Nov. 10, 2003). Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied defendant's petition. State v. Flynn, 179 N.J. 311 (2004).

Thereafter, defendant filed a petition for PCR. He alleged that he was denied the effective assistance of counsel because Murawinski: 1) acted unethically by misappropriating funds defendant and others provided to him to be used to obtain a psychologist's report and hire a private investigator; 2) failed to file a motion to dismiss the felony murder count; 3) failed to file a motion to suppress defendant's statement as the fruit of an illegal arrest; 4) coerced him into pleading guilty despite being told that defendant wanted to go to trial and assert a diminished capacity defense; 5) was disloyal to him by abandoning him and by testifying for the State at the hearing on his motion to withdraw the plea; and 6) was deceptive, inaccessible and did not have a business address.

The court considered the petition on July 2, 2008, and, after hearing argument of counsel, placed a thorough and comprehensive decision on the record. The court found that defendant's contentions that Murawinski failed to file a motion to suppress and did not properly investigate the matter, and his contention that the plea was coerced, had been addressed when the court denied defendant's motion to withdraw his plea, and the order denying the motion was affirmed on appeal.

The court also noted that certain of defendant's claims were barred by Rule 3:22-4 because they could have been raised in earlier proceedings. Nevertheless, the court addressed defendant's contentions and found that he had not been denied the effective assistance of counsel. The court entered an order dated July 16, 2008, denying the petition. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT ONE

DEFENDANT'S TRIAL COUNSEL MISAPPROPRIATED HIS CLIENT'S FUNDS FOR A PSYCHIATRIC EXPERT AND AN INVESTIGATOR, FAILED TO ADEQUATELY INVESTIGATE THE CASE, CREATED A CONFLICT OF INTEREST AND DENIED DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART. 1, 10.

POINT TWO

TRIAL COUNSEL'S FAILURE TO MOVE TO DISMISS THE FELONY MURDER COUNT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND A VIOLATION OF DUE PROCESS.

POINT THREE

TRIAL COUNSEL'S FAILURE TO MOVE TO SUPPRESS THE FRUITS OF THE ILLEGAL ARREST CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT FOUR

TRIAL COUNSEL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY IMPROPERLY COERCING DEFENDANT'S GUILTY PLEA.

POINT FIVE

TRIAL COUNSEL'S DISLOYALTY TO DEFENDANT CONSTITUTED A VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.

POINT SIX

TRIAL COUNSEL WAS DECEPTIVE, INACCESSIBLE AND HE ABANDONED DEFENDANT BEFORE AND AFTER THE PLEA HEARING, DENYING HIM THE EFFECTIVE ASSISTANCE OF COUNSEL AT CRITICAL STAGES [OF THE PROCEEDINGS].

We are convinced from our review of the record that these contentions are entirely without merit. We therefore affirm the denial of defendant's PCR petition substantially for the reasons stated by the court in its thorough and comprehensive oral decision of July 2, 2008. R. 2:11-3(e)(2). We add the following.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court established a two-part test for evaluating claims of ineffective assistance of counsel. In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists 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. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

Here, the PCR court correctly determined that Murawinski had exercised reasonable professional judgment in weighing various possible defenses. The court found that duress was not a viable defense in this case. The court noted that defendant claimed that he killed Wood because Descoteau had threatened him and his girlfriend. At his plea hearing, however, defendant stated that he did not pay any attention to Descoteau's threats. The court observed that these were "not the words of someone fearing for his life or the lives of his loved ones" as defendant claimed.

The court also correctly found that intoxication was not a viable defense in this matter. The court stated that any claim of intoxication was belied by "defendant's own detailed, very detailed recollection and [repeated] statements" concerning the murder. The court noted that, in his statement to the police in Florida, defendant had been able to describe exactly what had occurred when he and Leahey murdered Wood. The court noted that defendant was able to testify to the same facts at his plea hearing and again at Descoteau's trial.

In addition, the court correctly found that Murawinski had exercised reasonable professional judgment in his handling of a possible psychiatric defense. Murawinski had obtained a preliminary report from Dr. Arnoldo Apolito (Apolito), who opined that defendant had been suffering from a "Dissociative Disorder." The court noted that, in making this diagnosis, Apolito had relied upon defendant's alleged fear of Descoteau but defendant had admitted he did not pay any attention to Descoteau's threats. The court pointed out that Apolito had focused upon what he called defendant's "amnesia" but the court observed that defendant's statement concerning the murder was "very detailed."

The PCR court also correctly found that there was no merit in defendant's claim that Murawinski had misappropriated monies which had been provided to him in order to obtain a final report from Apolito. The court observed that the fact that monies had been provided to Murawinksi for his services was not sufficient to show any misconduct on Murawinski's part in his use of those funds. The court aptly commented that there was no point in spending money to obtain the final report if defendant had decided to enter a guilty plea.

The court additionally pointed out that Murawinski had testified that he had spoken with defendant about a possible psychological defense. Moreover, at Descoteau's trial, defendant testified about the plea and said that he had considered the possible defenses and accepted the plea offer to avoid having to spend the rest of his life in jail.

In addition, the court correctly determined that Murawinski did not err by failing to file a motion to dismiss the felony murder charge. The court stated that sufficient evidence had been presented to the grand jury to support the felony murder charge. The court observed that defendant had admitted causing Wood's death and found that there was sufficient evidence to show that defendant did so during the course of a robbery. Thus, as the court determined, any motion to dismiss the felony murder charge would have been without merit.

The PCR court also found that defendant had not been denied the effective assistance of counsel because Murawinski did not file a motion to suppress the statement that defendant gave to the police after his arrest. Defendant argues that the arrest warrant was obtained based on an affidavit of Lieutenant Louis Diana (Diana) that defendant says contained false statements. The PCR court correctly found, however, that defendant was not denied the effective assistance of counsel because Murawinski did not seek suppression of the statement. As the court observed, defendant had identified a few inaccuracies in Diana's affidavit, but the affidavit included sufficient accurate information that established probable cause for defendant's arrest.

 
We have considered defendant's other contentions and find them to be without sufficient merit to warrant any comment in this opinion. R. 2:11-3(e)(2).

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-5536-07T4

April 30, 2009