STATE OF NEW JERSEY v. ULYSSES RIVERS

 
(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NOT FOR PUBLICATION WITHOUT THE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-4633-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ULYSSES RIVERS,

Defendant-Appellant.

_____________________________________________________

October 27, 2010

 

Submitted October 13, 2010 - Decided

 

Before Judges Skillman and Parrillo.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment

No. 92-03-00356.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

After a reversal of a prior conviction and remand for a new trial, defendant was found guilty by a jury of the 1991 murder of his wife. On January 20, 1998, defendant was sentenced to a term of life imprisonment, with a thirty-year period of parole ineligibility for the murder, and a concurrent five-year term for possession of a weapon for an unlawful purpose.

On defendant's direct appeal, we affirmed his conviction and sentence in an unreported opinion, except that we merged his conviction for possession of a weapon into his conviction for murder. State v. Rivers, No. A-4164-97T4 (Jan. 3, 2001). The Supreme Court denied defendant's petition for certification. 167 N.J. 637 (2001).

Defendant filed a petition for post-conviction relief. Following an evidentiary hearing in which defendant and the trial counsel in both his first and second trials testified, the trial court denied defendant's petition by a lengthy written opinion.

On appeal from the denial of the petition, the Public Defender raises the following issues on defendant's behalf:

POINT I: THE COURT MISAPPLIED THE

APPLICABLE LEGAL STANDARDS

IN DENYING POST-CONVICTION

RELIEF BECAUSE OF PROCEDURAL

BARS.

 

A. THE DEFENDANT'S POST-CON-

VICTION RELIEF CLAIMS CON-

CERNING THE TRIAL COURT'S

FAILURE TO PROPERLY INSTRUCT

THE JURY ON HOW TO ASSESS

THE VERACITY OF HIS STATE-

MENTS TO DR. KLEINMAN AND

DR. KULL WERE NOT PROCEDURALLY

BARRED UNDER R. 3:22-5

BECAUSE THEY WERE NOT

"IDENTICAL" TO OR "SUBSTAN-

TIALLY EQUIVALENT" TO THE

ISSUES RAISED ON DIRECT

APPEAL.

 

B. THE DEFENDANT'S POST-CON-

VICTION RELIEF CLAIMS

CONCERNING THE INADEQUACY

OF THE TRIAL COURT'S JURY

INSTRUCTIONS ON PASSION/

PROVOCATION MANSLAUGHTER

AND THE FAULTY JURY VERDICT

SHEET WERE NOT PROCEDURLLY

BARRED UNDER R. 3:22-4

BECAUSE THEY INVOLVED THE

INEFFECTIVENESS OF TRIAL

AND APPELLATE COUNSEL.

 

POINT II: THE COURT ERRED IN DENYING

POST-CONVICTION RELIEF BE-

CAUSE TRIAL COUNSEL'S UNI-

LATERAL DECISION THAT THE

DEFENDANT WOULD NOT TESTIFY

AT TRIAL, AND TRIAL COUNSEL'S

UNILATERAL DECISION TO

STIPULATE THAT THE DEFENDANT

HAD BEEN PREVIOUSLY INCAR-

CERATED, SATISIFED BOTH

PRONGS OF THE STRICKLAND/

FRITZ TEST FOR INEFFECTIVE

ASSISTANCE OF COUNSEL AND

APPELLATE COUNSEL WAS IN-

EFFECTIVE FOR FAILING TO

RAISE THESE ISSUES ON APPEAL.

 

POINT III: THE COURT'S RULING DENYING POST-

CONVICTION RELIEF VIOLATED THE

DEFENDANT'S RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL AS

GUARANTEED BY THE SIXTH AMEND-

MENT TO THE UNITED STATES

CONSTITUTION.

POINT IV: DEFENDANT REASSERTS ALL OTHER

ISSUES RAISED IN POST-CON-

VICTION RELIEF.

A. THE TRIAL COURT ERRED IN

ITS CHARGE ON DIMINISHED

CAPACITY BY FAILING TO

INSTRUCT THE JURY THAT THE

STATE HAS THE BURDEN TO

DISPROVE THE EXISTENCE OF

MENTAL DISEASE OR DEFECT.

B. THE TRIAL COURT'S CHARGE ON

MURDER FORECLOSED THE JURY'S

CONSIDERATION OF DEFENDANT'S

MENTAL DISEASE OR DEFECT.

C. TRIAL COUNSEL RENDERED IN-

EFFECTIVE ASSISTANCE BY

FAILING TO OBJECT TO THE

TRIAL COURT'S ERRONEOUS

CHARGE ON DIMINISHED

CAPACITY AND MURDER.

In addition, defendant has filed a pro se supplemental brief, which raises the following issues:

DEFENDANT WAS DENIED A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

 

A. DEFENDANT WAS DENIED A FAIR

TRIAL DUE TO THE COURT'S FAULTY JURY INSTRUCTIONS AND DEFEC-

TIVE VERDICT SHEET REGARDING PASSION/PRO-VOCATION MANSLAUGHTER AND COUNSEL'S FAILURE TO OBJECT

TO SAME.

 

B. THE TRIAL COURT ERRED IN ITS CHARGE ON DIMINISHED CAPACITY

BY FAILING TO TELL THE JURY

THAT THE STATE HAS THE BURDEN

TO DISPROVE THE EXISTENCE OF

MENTAL DISEASE OR DEFECT.

 

C. THE TRIAL COURT'S CHARGE ON

MURDER FORECLOSED THE JURY'S CONSIDERATION OF DEFENDANT'S MENTAL DISEASE OR DEFECT.

 

D. TRIAL COUNSEL RENDERED INEFFEC-

TIVE ASSISTANCE BY FAILING TO OBJECT TO TRIAL COURT'S ERRONEOUS CHARGE ON DIMINISHED CAPACITY

AND MURDER.

 

E. APPELLATE COUNSEL WAS INEFFEC-

TIVE FOR FAILING TO RAISE TRIAL ERRORS ON DIRECT APPEAL.

 

We reject defendant's arguments and affirm the denial of his petition substantially for the reasons set forth in the trial court's written opinion.

The only argument that requires some supplemental discussion is defendant's argument that the trial court erred in failing to instruct the jury that the State had the burden to disprove the existence of a mental disease or defect that prevented him from killing his wife knowingly or purposefully. It is a "now-settled principle that if there is any evidence that defendant suffered from a mental disease or defect that might affect his ability to form an intent to kill, the State must prove beyond a reasonable doubt that such disease or defect did not prevent defendant from acting with the requisite mental state." State v. Oglesby, 122 N.J. 522, 528 (1991).

In instructing the jury regarding the evidence of defendant's diminished capacity at the time he killed his wife, the trial court stated:

Evidence has been produced in this case alleging that at the time of the commission of this killing Ulysses Rivers suffered from a mental disease. You may consider this evidence to determine whether he acted knowingly or purposely, which are elements of mental state required for murder, or recklessly which is an element of the offense of manslaughter.

 

Defendant has produced evidence, including the testimony of Dr. Kleinman, to the effect that he was mentally ill at the time of the shooting, that he suffered from paranoid schizophrenia, and that at the time of the shooting he was in acute episode of psychosis that rendered him unable to act purposely or knowingly or recklessly. The doctor's opinion was that the defendant was in a fugue state and did not know what he was doing, he did not consciously determine what he was doing.

 

On the other hand, Dr. Richard Kull has testified that in his opinion, while defendant may have suffered from schizophrenia, his primary diagnosis was drug dependency, and at the time he shot his wife he was acting both purposely and knowingly, that he intended to shoot her.

 

Now, if you find from the proofs in this case that a mental disease existed at he time of the offense, you must determine what effect, if any, this disease had on the ability of the defendant to act knowingly, purposely, or recklessly. In other words, you must decide whether Ulysses Rivers at the time he shot Faye Rivers suffered from a mental illness and, if so, was there an impairment of defendant's thought process which affected his ability to form a mental state required by the crime.

 

. . . .

 

Remember, the burden is on the [S]tate to prove each element of the crime beyond a reasonable doubt. If you find from the evidence presented in this case that at the time of the commission of the crime the defendant suffered from a mental disease you must then consider whether this affected his ability to act knowingly, purposely, or recklessly.

 

If you find he could not act knowingly, purposely, or recklessly because of that condition -- which has been diagnosed as paranoid schizophrenia by his expert -- you must find him not guilty. If you find the defendant did not suffer from a mental disease, or that it did not prevent him from forming the mental state required by the crime, and that the [S]tate has proven all the elements of the offense, including a required mental state, beyond a reasonable doubt, you must find him guilty.

 

In other words, if you find the [S]tate has failed to prove beyond a reasonable doubt that on October 15th, 1991, when he shot his wife, Ulysses Rivers acted with a mental state required for each crime, you must find him not guilty of any crime.

 

Defendant did not object to this instruction.

We conclude that the trial court's instruction regarding diminished capacity adequately communicated to the jury that the State had the burden of proving beyond a reasonable doubt that at the time he killed his wife defendant was suffering from a mental disease or defect that prevented him from acting purposefully or knowingly. In fact, this instruction was similar to the diminished capacity instruction in State v. Deliberio, 149 N.J. 90 (1997), decided only six months before the trial in this case, in which the trial court told the jury:

Now, we're going to go into the issues of mental disease and defect now, which have taken a lot of time in this case, which much of the case is about.

 

. . . .

 

Evidence as to the defendant's mental state may be considered by you in determining whether or not the State has proven beyond a reasonable doubt that the defendant acted purposely, knowingly or recklessly on June 30, 1991.

 

If you find the State has failed to prove beyond a reasonable doubt that the defendant had the requisite mental state required for this crime, you must find him not guilty. If you find the State has proven beyond a reasonable doubt all of the elements of the crime inclusive of the mental states required, then you should find him guilty. If you find the State has not proven any of the elements or any part thereof of these crimes, you must, of course, find him not guilty.

 

[Id. at 96.]

The Supreme Court held that this part of the court's instruction adequately conveyed the State's burden to prove defendant's guilty beyond a reasonable doubt in light of the evidence of his mental incapacity:

 

Specifically, the jury was instructed that it must consider evidence as to defendant's mental capacity in "determining whether or not the State has proven beyond a reasonable doubt that the defendant acted purposely, knowingly or recklessly." This instruction correctly explained that the jury could consider evidence as to a defendant's mental state in relation to the elements of the crime, regardless of whether the jury believes that the defendant has proven diminished capacity by a preponderance of the evidence, and the instruction did not contravene Humanik [v. Beyer, 871 F.2d 432, 440 (3d Cir. 1989)].

 

[Id. at 102.]

The trial court's instruction in this case did not indicate that defendant had any burden of proof with respect to the evidence of mental disease or defect. The only burden the court referred to was the State's burden to prove beyond a reasonable doubt that defendant acted purposefully or knowingly, notwithstanding the evidence of defendant's mental disease or defect. Therefore, the court's diminished capacity instruction did not have the capacity to dilute the State's constitutionally mandated obligation to prove every element of the offense, including the required mens rea, beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 323, 374 (1970).

Defendant's other arguments that were not specifically addressed in the trial court's written opinion are clearly without merit. R. 2:11-3(e)(2).

Affirmed.