STATE OF NEW JERSEY v. LAWRENCE YOUNG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5137-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE YOUNG,

Defendant-Appellant.

________________________________________

May 10, 2011

 

Submitted April 4, 2011 Decided

 

Before Judges A. A. Rodr guez and Miniman.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-02-0651.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Lawrence Young appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

Defendant was convicted, following a jury trial, of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of murder; and unlawful possession of a weapon (an eight-inch knife), N.J.S.A. 2C:39-5(d). Judge Thomas M. McCormack merged the convictions and imposed a twenty-year term with a NERA1 parole disqualifier. We affirmed on direct appeal. State v. Lawrence Young, No. A-0509-05 (App. Div. March 27, 2008), certif. denied, 196 N.J. 343 (2008).

The convictions arise from an altercation on May 23, 2002, where defendant stabbed his girlfriend, Rajhana Young, to death. The facts are fully set forth in our opinion on direct appeal. It was undisputed at trial that defendant stabbed Rajhana with an eight-inch kitchen knife. Defendant alleges he was acting in self-defense. The State's version, which the jury credited, was that defendant stabbed Rajhana in anger.

Defense counsel presented a self-defense strategy. This was consistent with defendant s version of what occurred during the incident, including an escalation of the argument between himself and Rajhana and that she was the aggressor. According to defendant, Rajhana woke him up by kicking his feet and telling him to get up. Rajhana followed him into the bathroom. She got mad, a "shoving match" ensued and she started hitting him on top of his head. He pushed her away. She went into the kitchen, grabbed a knife, and lunged at his chest area. He pushed her to the wall, but received a jab wound to his chest. He held Rajhana by the wrist and the neck and he pushed her away and took the knife away. As he did, the knife went into her and she fell into him.

Defendant filed a pro se PCR petition. Counsel then filed an amended verified petition and a letter brief. The verified petition contained the following assertion by defendant:

[Defendant], during the times relevant to the offense was suffering from such a great prostration of faculties, that he was unable to form the requisite intent necessary to commit the act listed in count one of [the indictment].

 

After oral argument, Judge McCormack denied defendant's petition and his request for an evidentiary hearing.

Defendant appeals contending:

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

Specifically, defendant argues that trial counsel failed to investigate or develop a defense based on diminished capacity; prepare an intoxication defense; consult with defendant; and provide an effective trial strategy. We reject these arguments.

It is well-settled that in order to demonstrate remediable ineffectiveness, a claimant must meet a two-prong test. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Claimant must show that counsel's performance was substandard, and that this defective performance was prejudicial to his right to a fair trial. Ibid.

We note that in order to qualify for the defense of diminished capacity, at a minimum the evidence must be shown to be capable of negating a mental element of the crime charged or otherwise to impair cognition. State v. Moore, 122 N.J. 420, 435 (1991) (citing State v. Breakiron, 108 N.J. 591, 619 (1987)). Here, the evidence presented at trial, and defendant's brief supporting his PCR petition, are insufficient to establish a prima facie showing of diminished capacity. Therefore, we do not fault trial counsel for not raising a non-existent defense.

Defendant points to State v. Savage, 120 N.J. 594 (1990), where trial counsel was ineffective for failing to present a diminished capacity defense at trial. However, Savage is factually distinguishable. The Savage defendant had a history of mental illness. Id. at 608. There was a police report that the defendant in Savage was hospitalized after he jumped out of a window. Id. at 611. He also claimed that a woman appeared at his hospital bed, put a gun to his head and threatened to kill him if he did not move a suitcase containing a human torso. Id. at 618. He fled the hospital and ran nude through the streets with an IV bottle and tube attached to his arm. Id. at 601. Thereafter, he transport[ed] leaky suitcases [containing body parts] from a building in New York to various locations in New Jersey that reeked so badly and he looked so bizarre that numerous witnesses noticed and remembered. Id. at 618-19.

Defendant argues that he demonstrated bizarre behavior which strongly indicated that he suffers from mental illness. Defendant's sole example of such bizarre behavior is that he summoned his mother to the scene before allowing the police entry into the apartment. That does not demonstrate diminished capacity. Defendant presented no evidence of a history of psychological issues. Thus, due to the lack of evidence supporting a diminished capacity defense, defendant fails to meet the first prong of the Strickland/Fritz test.

The same analysis applies to an intoxication defense. "[I]ntoxication of the actor is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). Evidence of intoxication can be "a defense to crimes requiring either 'purposeful' or 'knowing' mental states but it excludes evidence of intoxication as a defense to crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986). The Court in Cameron noted that firmly fixed in our case law is the requirement of prostration of faculties as the minimum requirement for an intoxication defense. Id. at 54.

[F]actors pertinent to the determination of intoxication sufficient to satisfy the test of "prostration of faculties" . . . are the following: the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events

 

[Id. at 56.]

 

The Supreme Court has also held that counsel has a duty to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Savage, supra, 120 N.J. at 618 (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed 2d at 695)).

Here, other than defendant's statement, presented for the first time in his PCR, that "he consumed a pint of Hennesy cognac and marijuana laced with angel dust," there is no evidence that defendant was intoxicated when he stabbed his girlfriend. Defendant was surrounded by police and medical professionals after he was arrested and no one testified or reported that defendant appeared intoxicated. There are no test results of defendant s blood, breath or urine indicating the presence of substances he claims to have consumed. Nor were there any physical remnants of drug or alcohol at the crime scene.

In addition, intoxication is not a defense for the crime which defendant was convicted. Defendant was convicted of aggravated manslaughter. N.J.S.A. 2C:11-4(a)(1). The aggregated manslaughter statute provides in part that "[c]riminal homicide constitutes aggravated manslaughter when: (1) The actor recklessly causes death under circumstances manifesting extreme indifference to human life." Ibid. The aggravated manslaughter statute contains no element of intent. Thus, presentation of an intoxication defense would have been of no avail to defendant. Therefore, defendant fails to meet either prong of the Fritz/Strickland test.

Defendant argues that his "trial counsel failed to consult with him, especially during pretrial preparation and as a result, could not develop a reasonable defense. However, defendant points to nothing in the trial record to indicate that he was dissatisfied with his trial counsel s performance or that his counsel failed to meet with him prior to trial. Moreover, there is nothing in the PCR record to indicate any failure by trial counsel to consult during pretrial preparation. Defendant s bare allegation alone is insufficient to overcome his burden of showing that trial counsel s performance was so deficient that he was not functioning as counsel. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant also argues that his trial counsel s strategy was so deficient that it constituted ineffective assistance of counsel. The trial record belies this claim.

[S]crutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

 

[Strickland, supra, 466 U.S. at 689 104 S. Ct. at 2065, 80 L. Ed. 2d at 694 (citing Engle v. Isaac, 456 U.S. 107, 133-134, 102 S. Ct. 1558, 1574, 71 L. Ed. 2d 783, 804 (1982))].

 

Thus, in considering a trial counsel s strategy, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Ibid.

Trial counsel's strategy was based on a theory of self-defense that the jury did not credit. Trial counsel is not ineffective merely because the trial strategy fails. See State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989)).

Defendant further argues that his appellate counsel was ineffective in failing to meet with him and to develop a viable strategy for the appeal. We are not persuaded.

"Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983). In addition, "[m]atters of appellate strategy, like matters of trial strategy, are generally relegated to the discretion of counsel." Caruso v. Zelinsky, 515 F. Supp. 676, 685 (D.N.J. 1981), aff'd in part, vacated in part, United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982).

Our review of this record persuades us that, on its face, it does not support any claim that defendant's trial or appellate counsel was deficient. Thus, applying the Strickland/Fritz standard, we discern no ineffective assistance by either trial or appellate counsel.

Lastly, defendant contends:

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF PROSECUTORIAL MISCONDUCT.

 

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note the following.

Defendant makes a bare allegation of prosecutorial misconduct. In his direct appeal, defendant raised claims of prosecutorial misconduct alleging that the prosecutor goaded defendant into moving for a mistrial. We expressly rejected this argument. Therefore, defendant is procedurally barred from raising this issue at this time pursuant to Rule 3:22-4.

I

t is well-settled that when issues of defective performance of trial counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal, but rather an application for PCR attended by a hearing, if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here, defendant has not make a prima facie showing of ineffective assistance. Nor that there are facts outside the record that would make such a showing. In short, defendant has not triggered the need for an evidentiary hearing.

Affirmed.

1 No Early Release Act, N.J.S.A. 2C:43-7.2.