STATE OF NEW JERSEY v. DAVID RUSSO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1810-09T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAVID RUSSO,

Defendant-Appellant.

_______________________________________

Submitted May 10, 2011 Decided June 8, 2011

 

Before Judges Yannotti and Skillman.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 86-10-00575.

 

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

 

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant David Russo appeals from an order entered by the Law Division on June 26, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was tried before a jury and found guilty of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1); capital murder, N.J.S.A. 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; two counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1). The trial court imposed an aggregate sentence of life plus forty years, with fifty years of parole ineligibility. A judgment of conviction was entered on June 22, 1987.

Defendant appealed and raised the following arguments:

I. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN CONDUCTING A RULE 8 HEARING ON THE ISSUES OF DIMINISHED CAPACITY IN WHICH HE REQUIRED THE DEFENSE TO CONVINCE THE COURT BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONDITION EXISTED OR THAT IT NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE.

 

II. THE COURT SHOULD HAVE CHARGED THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER.

 

III. THE COURT'S CHARGE ON THE DEFENSE OF INTOXICATION WAS IMPROPER AND MISLEADING DENYING THE DEFENDANT A FAIR TRIAL.

 

IV. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL.

 

V. THE DEFENDANT S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED.

 

VI. THE PROSECUTOR'S CONDUCT DURING THE TRIAL WAS GROSSLY IMPROPER WARRANTING A NEW TRIAL.

 

VII. THE TRIAL COURT, BY CERTAIN OF ITS RULINGS, INDICATED A BIAS AGAINST THE DEFENSE, AND DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

 

VIII. THE DEATH QUALIFICATION OF THE JURY IN THE CASE SUB JUDICE RESULTED IN A JURY WITH A DISPROPORTIONATE UNDERREPRESENTATION OF BLACKS AND WOMEN.

 

IX. THE COURT FAILED TO EXCUSE FOR CAUSE A NUMBER OF JURORS DURING VOIR DIRE.

 

X. THE COURT'S VOIR DIRE OF PROSPECTIVE JURORS WHO WERE IN FAVOR OF THE DEATH PENALTY WAS INADEQUATE IN THAT IT FAILED TO IDENTIFY JURORS WHOSE VIEWS IN FAVOR OF THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO GIVE A DEFENDANT A FAIR TRIAL.

 

XI. THE COURT ABUSED ITS DISCRETION IN ALLOWING THE JURY TO VIEW A 31 MINUTE VIDEOTAPE OF THE CRIME SCENE WHICH DEPICTED THE VICTIMS IN A GRUESOME AND SHOCKING WAY.

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

 

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

In a published opinion, we affirmed defendant's convictions, but held that his convictions for aggravated assault should have been merged with his convictions for attempted murder. State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990). Consequently, we held that defendant's aggregate sentence must be reduced to life plus twenty years, with a forty-year period of parole ineligibility. Id. at 412-13. The Supreme Court denied defendant's petition for certification. State v. Russo, 126 N.J. 322 (1991).

In June 1992, defendant filed a pro se petition for PCR, in which he raised the following grounds for relief:

Ground 1: In conducting a Rule 8 Hearing on the issue of Diminished Capacity, the Court denied petitioner his 6th Amendment constitutional right to a fair trial by requiring the defense to convince the Court by a preponderance of the evidence that the condition existed or that it negated an essential element of the offense.

 

Ground 2: The trial court committed reversible error in refusing to charge the jury with the lesser included offenses of aggravated manslaughter and resulted in violation of petitioner's 6th Amendment right to a fair trial.

 

Ground 3: The trial court's instructions on intoxication were so misleading and improper that it was impossible for the jury to determine how to apply the defense of intoxication to the case thereby violating petitioner's right to due process and a fair trial pursuant to the 6th and 14th Amendments, U.S. Constitution.

 

Ground 4: Petitioner was denied his independent constitutional right to represent himself by the trial court as guaranteed under the 6th and 14th Amendments.

 

Ground 5: Petitioner's right to due process and a fair trial were violated when the court permitted a demonstration on . . . behalf of victim's rights to be conducted in the lobby of the court house, where jurors passed through and one participated in same, contrary to the 6th and 14th Amendments.

 

Ground 6: The cumulative effect of the prosecutor's conduct during the trial was so egregious, improper, malicious and, combined with his deliberate attempt to undermine the attorney-client relationship, deprived petitioner of a fair and impartial trial in violation of his 6th and 14th Amendment rights.

 

Ground 7: Petitioner's 6th Amendment right to a fair trial was violated when the trial court, by certain of its rulings, indicated a bias against the defense, contrary to the U.S. Constitution.

 

Ground 8: The death qualification of the jury in the case sub judice resulted in a jury with a disproportionate amount of Blacks and Women contrary to petitioner's 6th and 14th Amendment rights to due process and a fair and impartial trial.

 

Ground 9: Petitioner's right to due process and to a fair and impartial trial were violated when the court failed to excuse for cause a number of jurors during voir dire, contrary to the 6th and 14th Amendments.

 

Ground 10: The court's voir dire of prospective jurors who were in favor of the death penalty, despite the non-capital conviction entered, was inadequate in that it failed to identify jurors with views in favor of the death penalty, and further resulted in a conviction-prone jury, substantially impaired the jury's ability to give petitioner his right to due process and a fair trial as guaranteed by the 6th and 14th Amendments.

 

Ground 11: The court seriously abused its discretion in allowing the jury to view a 31-minute videotape of the crime scene which depicted the victims in such a gruesome and shocking way as to deprive petitioner of his 6th and 14th Amendment rights to a fair and impartial trial and to due process.

 

It appears that the trial court did not rule on defendant's petition. On April 25, 1997, defendant filed a petition for habeas corpus in the United States District Court for the District of New Jersey. The court denied the petition on January 21, 1998. Russo v. Morton, No. 97-2089 (D.N.J. Jan. 21, 1998).

Thereafter, defendant filed a second PCR petition in the Law Division. PCR counsel was appointed, and counsel filed a brief in which he raised the following contentions:

I. THE PETITION IS TIMELY FILED AND IS NOT

BARRED PROCEDURALLY OR SUBSTANTIVELY.

 

II. THE STANDARD FOR INEFFECTIVE ASSISTANCE

OF COUNSEL.

 

III. PETITIONER RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL, AND BUT FOR THAT CONDUCT, A DIFFERENT RESULT WOULD HAVE OBTAINED.

 

DEFICIENCIES OF CONSTITUTIONAL DIMENSION ARE APPARENT FROM THE DEFENSE ATTORNEY'S STIPULATION OF DR. WEISS' REPORT, EVISCERATING ITS OWN DEFENSE.

 

IV. APPELLATE COUNSEL WERE INEFFECTIVE. BUT FOR THAT INEFFECTIVENESS, A DIFFERENT RESULT WOULD HAVE OBTAINED.

 

V. CUMULATIVE ERROR.

 

VI. POINTS URGED IN DEFENDANT'S PRO SE PETITION: ALL POINTS RAISED BY PETITIONER IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS SUPPLEMENTAL BRIEF.

 

The PCR court heard oral argument on the petition on May 18, 2009, and filed a written opinion on June 26, 2009. The PCR court found that the petition was not time-barred; defendant had not been denied the effective assistance of counsel; the trial court's handling of the diminished capacity defense did not require reversal of defendant's conviction; defendant's claims regarding alleged prosecutorial misconduct were barred by Rule 3:22-12 because they had been resolved in the direct appeal; Rule 3:22-12 barred defendant's claim that recklessness should have been charged; and reversal of the conviction on the basis of cumulative error was not warranted because all of defendant's claims of error had been rejected. The court entered an order on June 26, 2009, denying PCR.

On appeal, defendant raises the following arguments for our consideration:

POINT ONE

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CALL DR. [KENNETH] WEISS, A KEY EXPERT WITNESS FOR THE DEFENSE, AT A PRETRIAL HEARING TO ESTABLISH DEFENDANT'S DIMINISHED CAPACITY DEFENSE.

 

POINT TWO

DEFENDANT IS ENTITLED TO A NEW HEARING FOR THE COURT TO EVALUATE HIS DIMINISHED CAPACITY DEFENSE UNDER THE CORRECT LEGAL STANDARD.

 

POINT THREE

THE TRIAL COURT ERRED IN SUMMARILY DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT HOLDING AN EVIDENTIARY HEARING.

 

POINT FOUR

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

 

II.

We turn first to defendant's contention that he was denied the effective assistance of trial counsel because his attorney failed to call Dr. Weiss to testify at the pre-trial hearing conducted by the trial court to determine whether defendant should be permitted to assert a diminished capacity defense.

Defendant's ineffective-assistance-of-counsel claim is considered under the test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for considering such claims under the Sixth Amendment to the United States Constitution. The Strickland test has been adopted by our Supreme Court for considering ineffective-assistance-of-counsel claims raised under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

The Strickland test first requires a defendant to show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "No 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." Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Moreover, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Second, the defendant must show that his attorney's "deficient performance prejudiced the defense. " Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must establish 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). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Here, the trial court conducted a pretrial hearing to determine whether defendant had established by a preponderance of the evidence that he suffered from a mental disease or defect that would negate a state of mind that was a element of the charged offenses. Russo, supra, 243 N.J. Super. at 393. In that hearing, defendant's attorney presented testimony by Dr. David Bogacki, a clinical psychologist, and two reports prepared by Dr. Kenneth Weiss. Id. at 393-94.

Based on that evidence, the trial court concluded that, at the time the offenses were allegedly committed, defendant did not exhibit "'any of the features of either a manic episode or major depressive episode'" and did not "'meet the diagnostic criteria . . . for antisocial personality disorder.'" Id. at 394-95. In defendant's direct appeal, we held that the record supported the court's findings and its decision to exclude defendant's evidence of a "depressive disorder" and "depression" because such evidence "did not purport to establish his inability to have formed the mental state required for the offenses of which he was convicted[.]" Id. at 396.

We find no merit in defendant's contention that he was denied the effective assistance of counsel because his trial counsel elected to present Dr. Weiss's opinions by submitting his reports rather than calling him as a witness at the pretrial hearing. Defendant contends that counsel failed to develop a full record to establish his claim. The record shows that counsel did, in fact, create a full record concerning Dr. Weiss's opinions. Moreover, defendant has not shown that the matter would have been decided differently if Dr. Weiss had been called as a witness at the pretrial hearing.

III.

Next, defendant argues that he is entitled to a new hearing to evaluate his diminished capacity defense under the "correct" legal standard. We disagree.

In State v. Breakiron, 210 N.J. Super. 442 (App. Div. 1986), the majority held that evidence of a mental disease or defect is only admitted in support of a "diminished capacity" defense afforded by N.J.S.A. 2C:4-2 if the defendant establishes by a preponderance of the evidence that he suffers from a mental disease or defect and that the disease or defect "'would negate a state of mind which is an element of the offense.'" Id. at 447 (quoting N.J.S.A. 2C:4-2). Defendant's trial was held after we issued our opinion in Breakiron. Russo, supra, 243 N.J. Super. at 393.

Thereafter, the Supreme Court issued its opinion in State v. Breakiron, 108 N.J. 591 (1987), which reversed our judgment in that case. The Court held that: 1) the diminished capacity defense is not an affirmative defense that will justify or excuse criminally-culpable conduct but allows the introduction of evidence that is relevant to whether the State has proven the required mental state beyond a reasonable doubt; 2) it is constitutionally permissible to require the defendant to establish the presence of a mental disease or defect provided that the State retains the burden of proving all elements of the offense beyond a reasonable doubt; 3) except where the evidence is relevant to an insanity defense, the court must determine whether the evidence should be admitted at trial by considering if the evidence is relevant to the alleged condition and the condition is relevant to defendant's ability to form the requisite mental state; and 4) the jury must determine whether the defendant had shown by a preponderance of the evidence that the claimed mental disease or defect exists, and whether the State has proven beyond a reasonable doubt that defendant nevertheless had the requisite mental state for the charged offense. Id. at 620-21.

The Supreme Court addressed the issue again in State v. Zola, 112 N.J. 384 (1988). In that case, the Court reaffirmed its decision in Breakiron and explained that, in a case involving a charge of purposeful and knowing murder, among other offenses, the jury should be instructed that:

[t]he defendant must prove by a preponderance of the evidence that he suffers from a mental disease or defect. However, the prosecution must prove beyond a reasonable doubt that defendant's mental disease or defect did not negate the state of mind which is an element of the crime, that is, purposely or knowingly. In other words, the prosecution must prove beyond a reasonable doubt that defendant acted purposely or knowingly despite his mental disease.

 

[Id. at 402.]

After the Supreme Court's decisions in Breakiron and Zola, the Court of Appeals for the Third Circuit issued its opinion in Humanik v. Beyer, 871 F.2d 432 (3d Cir. 1989), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989). The Court of Appeals held that jury instructions of the sort permitted by Breakiron and Zola were unconstitutional. Id. at 442-43. The Court found that a jury cannot be instructed that evidence of a mental disease or defect may be ignored unless it satisfies the "preponderance of the evidence" standard. Id. at 443. "If the defendant's evidence on mental disease or defect is sufficient to raise a reasonable doubt about the existence of the requisite intent, it cannot constitutionally be ignored." Ibid.

Significantly, however, the Court stated that our Supreme Court's decisions in Breakiron and Zola

do more than declare that before a jury issue can arise with respect to the existence of a mental disease or defect and the absence of the requisite state of mind as a result thereof, a defendant must come forward with evidence about the existence of such a disease or defect which a reasonable juror could credit. We have no doubt that such a requirement is constitutionally permissible. But in the situation before us, there is no dispute that the defendant has come forward with such evidence. The issue posed by the Zola approved charge is whether a state may impose a "preponderance of the evidence" filter which may bar consideration of that evidence by the jury in determining whether the state has proved the requisite state of mind beyond a reasonable doubt. We hold that it may not.

 

[Ibid.]

 

After the Humanik decision, our Supreme Court issued a memorandum requiring our trial courts to adhere to that decision. 124 N.J.L.J. 1133 (Nov. 2, 1989). The Court later issued another memorandum applying Humanik to all appeals pending as of December 8, 1989, although noting that application of Humanik did not require reversal of every conviction presenting a diminished capacity issue. 124 N.J.L.J. 1562 (Dec. 28, 1989).

Defendant's direct appeal apparently was pending as of December 8, 1989. In that appeal, we held that the trial court had properly excluded evidence proffered by defendant to support a diminished capacity defense because the evidence "did not purport to establish his inability to have formed the mental state required for the offenses of which he was convicted[.]" Russo, supra, 243 N.J. Super. at 396. We held that the exclusion of the evidence was consistent with the Supreme Court's decision in Breakiron. Ibid.

In addressing defendant's argument, we also cited to State v. Carroll, 242 N.J. Super. 549 (App. Div. 1990), certif. denied, 127 N.J. 326 (1991), a case decided by the same panel one month before the opinion was filed in defendant's appeal. Russo, supra, 243 N.J. Super. at 396. In Carroll, the defendant argued that the trial court erred by imposing upon him the burden of proof as to diminished capacity. Carroll, supra, 242 N.J. Super. at 554. We noted that, as a result of the Chief Justice's memorandum of December 8, 1989, "the principles set forth in Humanik must be followed in deciding the appeal." Id. at 556.

We concluded in Carroll that, in light of Humanik, the trial court's instruction to the jury imposing a "preponderance of the evidence filter" on the evidence defendant presented concerning his mental disease or defect was erroneous. Id. at 557. We held, however, that the error was harmless "because defendant failed to present evidence of the kind of mental disease or defect which would negate the mental state required to convict him of murder." Ibid.

Our citation to Carroll indicates that we considered defendant's direct appeal in light of the principles set forth in Humanik. We concluded that defendant failed to proffer sufficient evidence to allow the jury to consider a diminished capacity defense. Russo, supra, 243 N.J. Super. at 396. Our citation to Carroll reflects our understanding that Humanik did not compel a different result. Therefore, defendant's diminished capacity defense was considered under the correct legal principles.

IV.

Defendant also argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Again, we disagree.

A evidentiary hearing ordinarily is required to resolve ineffective-assistance-of-counsel claims if a defendant presents a prima facie claim in support of post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992). A prima facie case requires the defendant to show "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). "[I]n determining whether to grant an evidentiary hearing, the [PCR] court must consider the facts in the light most favorable to defendant[.]" Ibid.

Here, defendant relies on a certification submitted by his defense counsel at trial, Fred Last (Last), on May 15, 2009. In the certification, Last claims that he "believe[s] [defendant] received the ineffective assistance of counsel" because they were unprepared for the Breakiron hearing and "did not comprehend the significance of what had to be established . . . in order to be able to present the defense to the jury." Defendant claims that this certification "presents prima facie evidence of ineffectiveness of counsel." We do not agree. Last's statements do not establish that the pretrial hearing was handled in a professionally deficient manner or that the matter would have been decided in his favor if counsel had handled the matter differently.

We have considered defendant's other contentions and find them to be "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).

Affirmed.