STATE OF NEW JERSEY v. JAMES LEWTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5913-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES LEWTER,

Defendant-Appellant.

_____________________________________

 

Submitted January 5, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2487.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara Rosenkrans, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Lewter appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In February 2002, defendant was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. After merger of counts, defendant was sentenced to seventeen years in prison, with eighty-five percent of the term to be served before parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On defendant's direct appeal, we affirmed his conviction and sentence. State v. Lewter, No. A-5270-01T4 (App. Div. Nov. 6, 2003). The Supreme Court denied his petition for certification. State v. Lewter, 179 N.J. 312 (2004).

We recount the facts of the underlying criminal episode as stated in our earlier opinion affirming the judgment of conviction:

On the evening of April 7, 1999, James Lewter went to visit his uncle, William Everett, and his family at their house on Taylor Street in Orange. Lewter and several others were sitting around, drinking beer on the porch in front of the house. Tina Wright, Lewter's cousin, and her 10-year old son were standing in the narrow street, talking with someone sitting in a car that was double-parked in front of the house. At approximately 8:00 p.m. the victim, David Hanson, came down the street in his pick-up truck and encountered the double-parked car. Chevelle Derrick, a next door neighbor, testified that Hanson waited for five minutes before becoming frustrated and pulling around the double-parked car. As he passed, Tina Wright, who was intoxicated at the time, shouted at Hanson to slow down, because her son was near the street. Hanson then stopped his truck and jumped out, cursing and threatening to kill everyone. As he did so, he pulled a brown paper bag from his truck and raised it, keeping his right hand inside of the bag while cursing.

The people in front of the house told Hanson to leave, but he continued to curse with the brown bag still in his hand. Shamelle Wright, Tina Wright's sister, who lived in the Taylor Street house, called the police because she saw Hanson pulling a "shiny object" out of the brown paper bag and thought it was a gun. In response to Shamelle Wright's call, Orange Detective Tyrone Grundy arrived and stopped Hanson's car a block away. He spoke with Hanson and learned that there were peanuts in the bag. He then reported to Shamelle Wright that Hanson did not have a gun. She believed that the detective told her that Hanson had no gun but that he had a silver tool of some type in the bag and she conveyed this information to the others on the porch and in front of the house.

Approximately 10 or 15 minutes later, Hanson returned, angry because the others had called the police. He again got out of his truck, yelling words in Jamaican as Lewter described it.

Lewter testified that he was afraid Hanson had retrieved a gun so he and his friend Cash walked toward the street armed with aluminum baseball bats. According to Lewter, Hanson reached underneath the driver's seat of his truck to try and retrieve something. Lewter feared Hanson was reaching for a gun. Lewter reached for his bat which was leaning against the pickup truck, grabbed it and struck Hanson on his arms and shoulders. Cash hit Hanson in the head with his bat. One of the witnesses described that blow to Hanson's head as having been so hard that she heard a loud crack. Hanson then fell to the ground, bleeding profusely, and tried to roll underneath his truck.

Lewter testified that he then stopped hitting Hanson with the bat, but admitted that he kicked Hanson once or twice in the arms and elbows, and that he hit or kicked him in the stomach and thigh as well. Accounts given by the witnesses varied about whether Cash continued to hit Hanson with the bat or not, and they varied with respect to Lewter's role in the incident, but all of them agreed that others intervened to end the fight and that by that time another 911 call had been placed.

Hanson then got up, stared at the porch, and managed to drive his truck away from the scene. He was taken to the hospital where surgeons placed an intracranial pressure monitor into his skull to relieve swelling of his brain. Medications were prescribed and Hanson was placed on life support. Hanson died on April 12, 1999, five days after being attacked by Cash and Lewter. Dr. Junaid Shaikh, the medical examiner, performed an autopsy on Hanson's body. He found that Hanson had a fractured skull, bruises on his right shoulder and knee, and superficial injuries to his upper left arm. Dr. Shaikh opined that Hanson sustained "at least four separate blows" to the head with a blunt object, any one of which could have caused his death.

[Lewter, supra, slip op. at 2-5.]

In October 2006, defendant filed a PCR petition alleging ineffective assistance of counsel in violation of his Sixth Amendment rights. The judge who had presided over defendant's trial considered and denied defendant's PCR petition without an evidentiary hearing. On appeal, defendant makes the following arguments:

POINT I THE COURT ERRED IN DENYING POST-CONVICTION WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S PRETRIAL FAILURE TO INVESTIGATE THE FACTS CONCERNING THE VICTIM'S ASPORTATION TO THE HOSPITAL AND HIS INVOLVEMENT IN THE CRASH OF HIS TRUCK, AND TRIAL COUNSEL'S FAILURE TO SECURE AN EXPERT MEDICAL OPINION TO SUPPORT THE THEORY OF ALTERNATE CAUSE FOR THE FATAL INJURIES CONSTITUTES PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL'S PRETRIAL FAILURE TO INVESTIGATE THE FACTS CONCERNING THE VICTIM'S ASPORTATION TO THE HOSPITAL INCLUDING HIS INVOLVEMENT IN THE CRASH OF HIS TRUCK, AND TRIAL COUNSEL'S PRETRIAL FAILURE TO SECURE AN EXPERT MEDICAL OPINION TO SUPPORT THE THEORY OF ALTERNATE CAUSE FOR THE FATAL INJURIES SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECITVE ASSISTANCE OF COUNSEL.

1. THE DEFENDANT SATISFIED THE FIRST PRONG

OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

2. THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT II THE COURT'S RULING DENYING THE POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Strickland test, "[t]he defendant must show that there is 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. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

Defendant argues that his trial attorney was ineffective because he failed to procure the services of a medical expert to challenge the medical examiner's opinion testimony regarding the cause of Hanson's death. In cross-examination of the medical examiner at trial, defense counsel established the medical examiner's opinion that Hanson's head injuries would have made it impossible for him to get off the ground and drive his truck. Relying on testimony from several eyewitnesses that Hanson in fact rose after the beating and drove away, trial counsel argued to the jury that some intervening event after the beating must have caused further trauma to Hanson's head and resulted in his death. In this PCR petition, defendant argues that his trial attorney failed to obtain expert medical testimony to support that theory, and also failed to obtain through discovery "asportation" reports as evidence of a motor vehicle accident that allegedly occurred during the time between Hanson's beating and his arrival at the hospital. He surmises that such reports may have supported a defense argument that Hanson hit his head on the windshield of his truck resulting in the injuries that caused his death.

The State does not respond to the specific arguments of the PCR petition but argues generally that defense counsel's trial strategy should not be questioned after conviction. The State contends defendant asserted self-defense and the defense of others at trial and also denied he was the one who struck blows to Hanson's head. The State argues that the theories presented on defendant's PCR petition would have undercut those defense trial strategies.

The State's argument does not refute defendant's claims. There is no inconsistency in a defense theory that Hanson received lethal head trauma in a motor vehicle accident after the beating and a defense strategy that defendant was defending himself and others and that, in fact, he did not strike Hanson in the head with a baseball bat. Defendant argues logically that evidence of a motor vehicle accident after the beating, to which the trauma causing death could have been attributed, may have resulted in the jury finding him not guilty of aggravated manslaughter.

The shortcoming of defendant's PCR petition, however, is that he has not presented any evidence to support his theory that a motor vehicle accident occurred after the beating and caused trauma to Hanson's head. He has not obtained any "asportation" records, such as police or emergency first aid reports, or hospital records to show that Hanson was involved in an accident. He has not shown that any expert medical opinion existed that the cause of trauma and death was anything other than the beating that Hanson suffered at the hands of defendant and others before he drove away. Cf. State v. Jack, 144 N.J. 240, 254 (1996) (necessity of establishing a prima facie case of ineffective assistance of counsel by presenting expert evidence to support contentions).

Nor has defendant shown why such records were not available to him and to his PCR attorney at the time that he filed his petition in 2006. Without such documentary evidence to support his theory of an intervening cause of death, defendant has not established a prima facie case of ineffective assistance of counsel based on failure to investigate, to obtain discovery from the State, or to engage an expert witness to support his theoretical defense. See Fritz, supra, 105 N.J. at 64. "[P]urely speculative deficiencies in representation are insufficient to justify reversal" of a conviction. Ibid.

We conclude that defendant's PCR petition was correctly denied because he did not present a prima facie case of ineffective assistance of counsel.

Affirmed.

 

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A-5913-07T4

July 1, 2010