STATE OF NEW JERSEY v. JEFFREY LYNCH

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4448-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY LYNCH,

Defendant-Appellant.

________________________________

December 19, 2013

Submitted: December 11, 2013 Decided:

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-03-0489.

Jeffrey Lynch, appellant pro se.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Lynch appeals from the May 7, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

In 1999, a jury convicted defendant of two counts of aggravated sexual assault, five counts of sexual assault, and seven counts of endangering the welfare of a child. The trial court sentenced defendant to an aggregate twenty-five-year prison term.

Defendant appealed his convictions and sentence. We affirmed, and our Supreme Court denied certification. State v. Lynch, No. A-6463-98 (App. Div. December 13, 2001) (Lynch I), certif. denied, 171 N.J. 445 (2002).

In June 2003, defendant filed a PCR petition arguing, in part, that his trial attorneys, Harold Ruvoldt, Esq. and Cathy Fleming, Esq.,1 were ineffective because they "failed to present relevant evidence of diminished capacity." The judge conducted an evidentiary hearing. Ruvoldt testified that he considered presenting expert testimony concerning defendant's mental state at the time of the crimes. Ruvoldt discussed the issue with Dr. Frances Howland, a psychiatrist who had treated defendant and diagnosed him with multiple personality disorder. From these discussions, Ruvoldt learned that Dr. Howland would not support defendant's diminished capacity claim. Thus, as a matter of trial strategy, he consulted with defendant and decided not to pursue this defense.

Ruvoldt's testimony was corroborated by Fleming. She testified that the defense team "considered and discussed whether we could have psychiatric testimony that would be helpful pertaining to mens rea or the ability to understand what [defendant] was doing at the time of these acts." However, after reviewing the available information from the psychiatrists, Fleming testified that her "very strong impression and conclusion was there was no way we were going to be able to put on an appropriate psychological defense." Finding that the decision of the defendant's attorneys was based upon a "sound trial strategy," the judge denied defendant's claim of ineffective assistance of counsel on this point.

Defendant filed an appeal from the denial of his PCR petition and we affirmed. State v. Lynch, No. A-1891-06 (App. Div. June 18, 2009) (Lynch II). We rejected defendant's argument that his trial team was ineffective because it did not call psychiatrists in support of a diminished capacity defense, stating:

Defendant first contends that trial counsel's failure to present evidence of diminished capacity as a defense at trial deprived him of effective assistance of counsel. He claims that the pre-trial testimony of Dr. Francis Howland and Dr. Crain2 during his competency hearings established that he suffered from multiple personality disorder. In addressing this argument, Harold Ruvoldt, one of defendant's attorneys, testified at the PCR hearing that although defendant had initially been found incompetent to stand trial, there was "no psychiatric support for incompetence at the time of the act" to support a diminished capacity defense. Ruvoldt also noted that "the use of a psychiatric defense without the benefit of any expert testimony was not something that we thought was viable." Ruvoldt believed that "what [Dr. Howland] would have testified to would have been more harmful than helpful."

Not every mental defense or defect supports a diminished capacity defense and "many mentally disturbed persons are [quite] capable of acting purposely and knowingly." State v. Reyes, 140 N.J. 344, 360 (1995) (internal quotations omitted). Ruvoldt's testimony shows that the decision not to present a diminished capacity defense was a strategic decision presumed to be valid under the Strickland3 test. Defendant has failed to offer any facts to overcome the presumption of validity and to show that, under the circumstances, that decision was unreasonable.

[Lynch II, supra, (slip op. at 14-15) (alteration in original) (footnotes omitted).]

While that appeal was pending, defendant filed a motion to supplement the record with an affidavit and other materials prepared by Dr. Crain further explaining defendant's mental condition and opining that this condition "impacted [defendant's] ability to form the intent to commit the crimes with which he was charged." Dr. Crain believed that neither defendant nor any of his alternate personalities had "pedophilic fantasies of attraction to female children and [therefore, defendant] would never engage in the sort of behavior with which he is charged." Dr. Crain stated that he discussed his proposed testimony on this issue with Ruvoldt, but neither Ruvoldt nor Fleming "called me to testify at [defendant's] trial." In our decision, we denied defendant's motion to supplement the record "without prejudice to defendant to timely file a new PCR petition based on the affidavit and the other documents included in defendant's motion to this court to supplement the record." Id. at 9 n.2. We did not retain jurisdiction. Ibid.

Although our decision thus made clear that defendant was required to file a new petition for PCR if he wished to raise any arguments regarding Dr. Crain's information, the judge mistakenly interpreted our decision as a remand for consideration by the court of defendant's claims concerning this material. The judge then conducted another evidentiary hearing, taking testimony from Dr. Crain4 concerning the views expressed in his affidavit. Thereafter, in a thorough written opinion, the judge again denied defendant's petition for PCR.

The judge found that defendant's attorneys were fully aware of Dr. Crain's opinions when they made the strategic decision not to pursue a diminished capacity defense. Referring back to the testimony presented by Ruvoldt and Fleming at the initial PCR hearing, the judge stated that counsel had sound reasons for not calling Dr. Crain, Dr. Howland, or any other psychiatrist on this issue. The judge explained that "[t]he rationale behind this decision centered on the inability of any expert testimony [to demonstrate that] defendant was not competent at the time of the acts."

In this regard, the attorneys focused on the problems caused by the fact that defendant had given a written confession to the offenses. The judge found that

the confession of the defendant was a serious blow to any defense, including the defense of diminished capacity. Dr. Crain testified for the second PCR that the host identity would not have had any memory of the actions of an alternate identity. However, during the confession the defendant made corrections of the statement where something was not accurate. If the defendant was acting as an altered identity at the time of the acts, then to correct the statements while making a confession, he must have been an altered identity at that time as well. If not, as [PCR] counsel suggests here, his confession is unreliable because he was not in the altered state at the time of confession; if he were not in an altered state at the time of the confession, then he must have not been in an altered state at the time of the acts. Certainly, these conjectures could have been very puzzling to the jury.

Thus, the judge concluded that:

Harold Ruvoldt described the confession evidence as "devastating" and stated his client was "convicted by pen[.]" Attacking the confession could have proven equally damaging. Therefore, it is objectively reasonable that defense counsel would avoid presenting that affirmative defense and decide, instead, on putting the State to its proofs in pursuing a reasonable doubt defense.

The inconsistency stated above regarding the confession, and which identity would have been reliable or unreliable dependent upon the identity which dominated the defendant at the time of the act, also sheds serious doubt on whether the result of the trial would have differed with this information. Therefore, actual prejudice has not been proven by the defendant. There has been no showing that "but for" counsel's alleged errors the result of the trial would have been any different.

Based upon these findings, the judge denied defendant's petition for PCR. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, MANDATING THAT HE BE GRANTED A NEW TRIAL.

1. COUNSEL FAILED TO PRESENT RELEVANT EVIDENCE OF DIMINISHED CAPACITY.

POINT II

COUNSEL'S OPENING STATEMENT PROVED THAT SHE WAS AWARE OF EVIDENCE OF [DEFENDANT'S] MENTAL DISEASE. HER FAILURE TO INTRODUCE PROOF OF THAT EPITOMIZED HER INEFFECTIVENESS.

POINT III

DEFENSE COUNSEL FAILED TO ADDUCE AVAILABLE RELEVANT TESTIMONY IN SUPPORT OF THE DEFENSE THEY CLAIMED AT THE PCR THEY HAD PRESENTED AT TRIAL, TO WIT, THEY FAILED TO INTRODUCE DR. CRAIN'S TESTIMONY WHICH WOULD HAVE SHOWN [DEFENDANT'S] PURPORTED CONFESSION TO BE UNRELIABLE.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the judge in his comprehensive and well-reasoned written opinion. We add the following brief comments.

We grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23.

That is certainly not the case here. Defendant's attorneys fully explored the feasibility of mounting a diminished capacity defense and, after considering all of the available evidence, including information provided by Dr. Crain, they made the tactical decision that their best course of action would be to pursue a reasonable doubt defense instead. On defendant's behalf, they aggressively challenged the believability of the victims' accounts and vigorously attacked the credibility of the police investigator who was responsible for obtaining the victims' statements and defendant's confession. We perceive no basis to second-guess Ruvoldt and Fleming's strategic decision or the judge's determination that defendant failed to establish his claim of ineffective assistance of counsel.

Affirmed.

1 Ruvoldt represented defendant pretrial and Fleming tried the case before the jury.

2 Dr. Peter Crain, M.D., is a forensic psychiatrist who had also diagnosed defendant with multiple personality disorder and testified on his behalf at two pre-trial competency hearings.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

4 Defendant also testified at the hearing.