STATE OF NEW JERSEY v. DAMEON M. STACKHOUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0202-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMEON M. STACKHOUSE,

Defendant-Appellant.

March 20, 2012

Submitted January 9, 2012 - Decided

Before Judges Alvarez and Skillman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-07-0503.

Joseph E. Krakora, Public Defender, attorney for appellant(Karen A. Lodeserto, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset CountyProsecutor, attorney for respondent(James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dameon M. Stackhouse appeals the March 22, 2010 denial of his petition for post-conviction relief (PCR). We affirm.

On August 18, 2006, after conviction by a jury, defendant was sentenced to seven years'imprisonment on a charge of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and a consecutive seven-year sentence, also for second-degree robbery, but involving a separate victim. Both terms of imprisonment are subject to the No Early Release Act's eighty-five percent parole disqualifier, N.J.S.A. 2C:43-7.2(a). Defendant received concurrent seven-year terms on charges of second-degree eluding, N.J.S.A. 2C:29-2(b), third-degree theft, N.J.S.A. 2C:20-3(a), and fourth-degree obstruction, N.J.S.A. 2C:29-1(a).

Defendant's convictions were affirmed, State v. Stackhouse, No. A-1254-06 (App. Div. Nov. 1, 2007), and his petition for certification to the Supreme Court was denied. State v. Stackhouse, 193 N.J. 586 (2008). This application for PCR followed. The PCR judge issued a fifty-three page opinion setting forth the analysis resulting in denial of the petition.

The underlying circumstances can be briefly described. On June 14, 2004, at approximately 1:00 a.m., defendant robbed a man sitting in his car in his own driveway. Standing at the driver's side window, defendant gestured with his left hand in his sweatshirt pocket as if holding a gun. Defendant looked through the victim's pockets and took his wallet from the car's center console. Police were called immediately after defendant fled.

While fleeing, defendant crashed his vehicle into a tree. He got out of the car and began to ring the doorbells of nearby houses, resulting in more calls to police. Eventually, defendant broke into a home where he grabbed the occupant by the arm and told her he needed help getting away. She gave him a $5 bill from her purse and a new $100 bill from her son's wallet. That victim walked defendant to her garage and showed him where her SUV was parked, with the keys inside.

Defendant took the SUV and drove it across the lawn, striking a tree along the way. When police attempted to intercept him, defendant lost control of the SUV and crashed into one of their vehicles, which spun out of control and burst into flames. The SUV rolled over and came to a stop on its roof. As defendant crawled out, a $100 bill fell out of his pocket. A search incident to his arrest uncovered a $5 bill, a $10 bill, and a stack of ATM receipts belonging to the first victim. Defendant was identified at a show-up by the two victims at the scene of his arrest and made tape-recorded inculpatory statements after being Mirandized.1

Blood tests conducted after the arrest revealed that defendant's blood contained metabolites for cocaine, ingested a few hours earlier. When he testified at trial, defendant told the jury that he had psychological problems for which he had been treated with various medications. He had stopped taking the medications the year prior, and on the night in question, he said he had ingested marijuana, crack cocaine, oxycontin, beer, and Jack Daniels.

Defendant presented an intoxication defense, not a diminished capacity defense, even though his attorney had obtained his mental health records from the Carrier Clinic and from the Richard Hall Community Mental Health Center. The PCR judge, after reviewing these records, noted that defendant had been diagnosed with major depressive disorder, for which he had been prescribed medication, anger issues, and had also been treated for substance abuse.

Defendant did not provide us with a copy of the judgment of conviction from which we could discern the specific aggravating and mitigating factors found at sentencing. Our review of the sentencing transcript indicates the court discussed only aggravating considerations, and it is clear that the court found no factors in mitigation.

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER BOTH TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE

A. THE PREVAILING PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY [SIC] DOES NOT APPLY TO DEFENDANT'S CASE

C. DEFENDANT ARGUES THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE OR ASK FOR A CHARGE OF DIMINISHED CAPACITY AND FOR FAILING TO RETAIN AN EXPERT TO TESTIFY AND EXPOUND ON DEFENDANT'S MENTAL CONDITION AT THE TIME OF THE INCIDENT

D. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO APPEAL DEFENDANT'S CONSECUTIVE SENTENCES FOR ROBBERY WHICH OCCURRED DURING A SINGLE PERIOD OF ABERRANT BEHAVIOR

E. APPELLATE COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO APPEAL DEFENDANT'S SENTENCES BASED ON THE TRIAL COURT'S MISAPPLICATION OR NON-APPLICATION OF APPROPRIATE MITIGATING FACTORS, THEREBY PREJUDICING DEFENDANT

We affirm the decision of the Law Division judge for the reasons stated in his comprehensive opinion. We add only the following comments.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating 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 one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See Norman, supra, 151 N.J. at 37-38. Moreover, defendant bears the burden of proving by a preponderance of the evidence that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

Defendant contends trial counsel was ineffective in failing to retain an expert regarding his mental condition at the time of the robberies as well as for failing to request the court give a diminished capacity instruction. Defendant bases his argument on his prior mental condition, which he asserts may have prevented him from forming the statutory intent for the various crimes. In this case, with regard to the robbery, the requisite mental state is "purposely" as to the theft element, N.J.S.A. 2C:15-1(a); N.J.S.A. 2C:20-3(a), and "knowingly" with regard to the assault. N.J.S.A. 2C:15-1(a)(1); N.J.S.A. 2C:2-2(c)(3). See State v. Sewell, 127 N.J. 133, 138 (1992). The requisite mental state for eluding is also knowledge, N.J.S.A. 2C:29-2(b), while for both obstruction and theft, the required mental state is purpose. N.J.S.A. 2C:29-1(a); N.J.S.A. 2C:20-3(a). "Knowingly" is a lesser mental state than "purposely." N.J.S.A. 2C:2-2(b).

At trial, defendant testified about receiving treatment for anger issues and depression, and claimed he had been diagnosed as suffering from bizarre ideations, occasional voices, and "static, hearing things." Records verifying this testimony were not provided in the appendix, however, and contrary to defendant's assertions, the PCR judge, after reviewing defendant's mental health records, noted diagnoses limited to depression, anger issues, and substance abuse.

Decisions of trial strategy are "virtually unchallengeable" if made following reasonable investigation. State v. Savage, 120 N.J.594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct.at 2065-66, 80 L. Ed.2d at 695). To prove ineffective assistance, the defendant must show deficient performance by counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That means defendant must demonstrate precisely how counsel's representation was insufficient. In Savage, the Court presents several examples, including lack of personal consultation with defendant, failure to interview state witnesses, and failure to consult medical professionals. 120 N.J.at 619-21.

Trial counsel elected to pursue the defense of intoxication, and not diminished capacity, and defendant testified about the cocktail of illegal substances and alcohol he allegedly ingested on the night in question. Defendant cannot claim that trial counsel did not adequately investigate the potential defense of diminished capacity, as counsel was well aware of defendant's condition on the night of his criminal conduct and had obtained defendant's mental health records. Instead, after investigation and review of the records, counsel made a deliberate, strategic choice not to pursue diminished capacity; in other words, he made a decision regarding trial strategy. SeeSavage, supra, 120 N.J.at 619, 622. This decision is indeed "virtually unchallengeable." Seeid.at 617.

Furthermore, defendant fails to connect his alleged mental health issues, as specified by the judge, with an inability to form a purpose or have knowledge on the night in question. Since that essential connection is missing, we cannot conclude that defendant's psychological conditions should have been raised in support of diminished capacity, much less that the failure to do so affected the outcome. Therefore, the second prong of the Stricklandtest is not met, as defendant has not demonstrated that he was prejudiced by trial counsel's strategic decision to present only the defense of intoxication, and not the defense of diminished capacity.

The decision not to call any expert to the stand regarding defendant's mental condition is also a strategic one that itself merits a high amount of deference, State v. Arthur, 184 N.J.307, 320-21 (2004). This strategic decision clearly fell within the broad spectrum of competent legal representation. SeeFritz, supra, 105 N.J.at 52.

Additionally, defendant contends that appellate counsel was ineffective because he or she did not assert that his consecutive sentences were imposed in error and that the court's failure to find mitigating factors warranted reversal. This contention lacks merit. Defendant's criminal activity, because it involves multiple victims, and distinct and separate crimes, albeit one after another, supported imposition of consecutive sentencing. SeeState v. Yarbough, 100 N.J.627, 643 (1985).2 This is the common situation in which consecutive sentences are imposed. SeeState v. Molina, 168 N.J.436, 442 (2001); State v. Carey, 168 N.J.413, 428 (2001).

And defendant further attacks appellate counsel's failure to raise the sentencing court's weighing of aggravating and mitigating factors. It is well-established that a trial court's assessment of mitigating and aggravating factors will be affirmed so long as the decision results from competent and credible evidence in the record. State v. O'Donnell, 117 N.J.210, 215 (1989) (citations omitted). The nine mitigating factors now suggested by defendant on appeal simply do not apply, either to the crimes he committed or to his circumstances. The judge found that defendant, thirty years old at the time of sentencing, had been found guilty in municipal court in 1996, 1997, and 1998 for shoplifting, harassment, and possession of marijuana. His prior 1998 indictable offense was for eluding. Defendant had a long history of abusing both alcohol and drugs, commencing at age fourteen. Accordingly, the court concluded there was a risk that defendant would commit further offenses and "a very strong need to deter those who are involved in violent behavior towards other people . . . because everybody has a right to expect that when they are sitting in their own home they won't be bothered by other people coming in and robbing them . . . ." As the judge said, "[t]hese were separate acts, separate victims, separate violent episodes, all occurring on the same night. [Defendant was] a one-man crime wave . . . . [who] went from one victim to the next to the next." Therefore defendant was not prejudiced by appellate counsel's failure to raise the issues of the consecutive nature of the sentences or the absence of mitigating factors.

A

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

2 The factors a court is to consider when deciding whether to impose consecutive or concurrent sentences are whether: "(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous[.]" Yarbough, supra, 100 N.J. at 644.