STATE OF NEW JERSEY v. ROBERT DOVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5552-04T45552-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT DOVE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 31, 2007 - Decided May 25, 2007

Before Judges Wefing, Parker and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-04-0480.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Dove appeals from an order entered on May 13, 2005 denying his petition for post-conviction relief (PCR). We affirm.

After a jury found defendant guilty of two counts of first degree attempted murder, two counts of second degree aggravated assault, four counts of fourth degree aggravated assault, two counts of simple assault, third degree unlawful possession of a handgun and second degree possession of a handgun for an unlawful purpose, in Indictment 97-04-0480, he was sentenced on July 19, 1999 to an aggregate term of thirty-four years subject to seventeen years parole ineligibility.

Defendant then pled guilty to one count of second degree possession of a weapon by persons not authorized, in Indictment 97-04-0488. He was sentenced to a term of ten years subject to three years parole ineligibility consecutive to certain counts of Indictment 97-04-0480 and concurrent to another count of that indictment, resulting in an aggregate term of forty-four years subject to twenty years parole ineligibility.

On January 22, 2002, we affirmed defendant's convictions on both indictments but remanded for resentencing. On May 30, 2002, defendant was resentenced on Indictment 97-04-0480 to an aggregate term of thirty-two years subject to eleven years parole ineligibility. On Indictment 97-04-0488, he was sentenced to a term of ten years subject to three years parole ineligibility consecutive to certain counts but concurrent to another count of Indictment 97-04-0480, resulting in a total aggregate term of forty-two years subject to fourteen years parole ineligibility. Defendant again appealed his sentence and we affirmed on May 5, 2003. The Supreme Court denied certification.

On June 24, 2003, defendant filed a pro se petition for PCR alleging ineffective assistance of counsel and an illegal sentence. Counsel was subsequently assigned to represent him and submitted a brief to the PCR court on his behalf in which he argued:

POINT ONE

THERE ARE NO ISSUES WHICH ARE PRECLUDED FROM BEING RAISED IN A POST-CONVICTION RELIEF HEARING

POINT TWO

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT COUNSEL FAILED TO PROPERLY INVESTIGATE OR PREPARE FOR TRIAL

POINT THREE

THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED

After his PCR petition was denied, defendant appealed and now argues:

POINT ONE

PCR COUNSEL'S FAILURE TO CALL DEFENDANT'S TRIAL COUNSEL TO TESTIFY AT THE HEARING WAS INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

POINT TWO

THE PCR COURT ERRED IN DENYING THE PETITION. (Not Raised Below).

In his PCR petition, defendant claimed that trial counsel was ineffective because he only met with defendant three times and purportedly did not discuss "anything relevant to the case." Defendant testified at the PCR hearing that his trial counsel was the fifth lawyer assigned to him. He further testified that he had "a falling out" with each prior counsel because each one wanted him to plead guilty and he wanted to go to trial. With respect to trial counsel, defendant claimed that he also wanted defendant to plead guilty and did not want to take the case to trial.

Defendant acknowledged that all of his prior counsel "weren't trying to convince [him] to take the plea because they were lazy, they were trying to convince [him] to take the plea because they thought it was better for [him]." Defendant testified, however, that he "wanted to go to trial, because I just wanted to get out of prison. That was what I set my mind on. I missed my Moms [sic], my family, and stuff." He claimed further that trial counsel should have sought a competency hearing to determine whether he was competent to stand trial because he "had a violent temper." He was aware, however, that several psychological evaluations declared him competent for trial.

The incident leading to the charges against defendant began on January 3, 1997 when defendant argued with the owner of a Perth Amboy restaurant because he was unsatisfied with the food. A police officer, who had stopped at the restaurant for coffee, intervened and asked defendant to leave. On January 6, 1997, the same officer was dispatched to the restaurant because of an argument. By the time the officer arrived, the dispute was over but the owner indicated that defendant had returned to the restaurant, again arguing about the food. Later that evening, the same officer was dispatched to the same restaurant because gun shots had been fired. The officer, who speaks Spanish, took statements from the seven people who were inside the restaurant when the shots were fired. The witnesses reported that defendant returned with a handgun and fired seven shots into the restaurant filled with patrons, employees and the owners. Ramon Jimenez testified at trial that he was a customer in the restaurant when defendant came in the door shooting.

Defendant testified at the PCR hearing that trial counsel was incompetent because he did not investigate "the people in the restaurant." Defendant claimed that he, rather than the people in the restaurant, was the victim because "they jumped me in the restaurant . . . . I was thrown out of the restaurant. I was thrown out of the restaurant, bleeding from my head. I was bleeding from my head. I was thrown out from the restaurant." He testified that was the reason he came back with the gun and fired the shots.

Defendant further testified that trial counsel "didn't want to work [with him]" and that . . . . "if we would have worked together more, we probably would have won at trial." Nevertheless, defendant acknowledged that trial counsel did a good job in examining the witnesses during the trial.

The PCR judge initially indicated that he expected to hear testimony from trial counsel during the hearing. After defendant's testimony, however, the court determined that trial counsel's testimony was not necessary:

What we have here is an attorney . . . who is the fifth attorney to represent Mr. Dove. Mr. Dove had a very strong conviction, that because he had been . . . mistreated by people in the restaurant, and had been thrown out of the restaurant, physically [and] had been assaulted, was bleeding, was treated badly [which] prompted him to come back into the restaurant and fire a weapon. And the result happened. . . .

[T]he court has gone through the transcript of the trial . . . there was a [Miranda] motion heard . . . . Then on . . ., the trial began in earnest. Witnesses were called . . . by the State . . . and cross-examined by [trial counsel] . . . for several days . . . . [Trial counsel] spent considerable time cross-examining the witnesses.

The defendant, Mr. Dove, said he actually did a good job, and got some of the witnesses to admit things that they had misstated . . . . That is, [trial counsel] did a good job at trial.

Noting that defendant testified that he would have won if counsel had worked more closely with him, the trial court concluded that, "[t]hat really is not ineffective assistance of counsel." The court noted

"[O]bviously, Counsel cannot be deemed ineffective for failing to raise arguments that are ultimately deemed without merit." [State v. Roper, 362 N.J. Super. 248, 252 (App. Div. 2003), certif. denied, 185 N.J. 265 (2005).] Here, while Mr. Dove may have sincerely believed that his mistreatment by people in the restaurant . . . would have given him a reason to come back with a handgun, that's not an argument that an attorney would ordinarily raise. And all the attorneys - all five of them, obviously, rejected it, and told the defendant that they did so. And there is no basis for this Court to find that had the defendant's attorney . . . pursued that type of argument, that the result at the trial would have been any different.

Referring to the standard articulated in Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 694 (1984), the court stated that defendant did not meet the two-prong test for ineffective assistance of counsel, which requires that a defendant seeking post-conviction relief must demonstrate (1) that counsel's performance was so deficient as to deprive him of his Sixth Amendment right; and (2) but for counsel's incompetency, the outcome of the trial would have been different.

Here, defendant argues that PCR counsel was ineffective for failing to call trial counsel as a witness at the PCR hearing. We have carefully considered the record in light of defendant's arguments and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we express our agreement with the trial judge that, after hearing defendant's testimony, trial counsel's testimony was unnecessary. Defendant's own testimony was at odds with his claim that trial counsel's performance was incompetent. Defendant's principal complaint was that trial counsel - indeed, all five trial counsel who represented him - disagreed with his approach to the case. But defendant conceded that trial counsel did a good job representing him.

In his second point, defendant argues that trial counsel's failure to pursue an insanity or diminished capacity defense at trial is a sufficient ground to grant his PCR petition. The record before us includes four psychiatric reports. On January 8, 1998, Edward J. Dougherty, Ed.D., a licensed psychologist, rendered a report indicating that he evaluated defendant by conducting a clinical interview and administering psychological tests on January 5, 1998. The report stated that defendant discussed the charges against him and "[h]is recall of the incident indicated that he knew where he was, who he was, and what he was doing at the time of the alleged incident." Nothing in Dr. Dougherty's testing indicated "serious types of psychopathology. Preliminary neuropsychological testing indicated that there is no evidence of any clear type of brain damage." Dr. Dougherty concluded "[t]here are no clear indications of any type of mental health problem that would interfere with his ability to function on the date of the alleged incident."

On May 18, 1998, Ryno M. Jackson, Psy.D., a forensic psychologist, undertook an evaluation of defendant, during which defendant "denied all charges saying that when arrested he was crossing railroad tracks on the way from a friend's house, and that he knew nothing of a shooting." Dr. Jackson's testing of defendant indicated that defendant functioned "in the Low Average to Average classification of cognitive ability . . . . [Defendant] scores lowest in areas measuring ability to function appropriately in unstructured or casual social situations which call for independent thought and response." Dr. Jackson concluded that defendant "is most appropriately diagnosed as having an Explosive Personality Disorder with neurological deficits" but "is found to be competent to stand trial."

On October 23, 1998, defendant was again examined by Dr. Jackson while defendant was incarcerated "in the administrat[ive] segregation wing of the jail" because of a confrontation with a guard. Dr. Jackson noted that defendant's "judgment was fairly poor, and his thought processes were marked by confusion, distractibility, with difficulty concentrating. Mr. Dove continued to present as a fairly rigid individual who follows his personal guidelines for conduct in an unyielding and inflexible manner." Defendant claimed to have "frequent hallucinations, both visual and auditory." In this report, Dr. Jackson offered "the diagnostic impression of Schizophrenia, Paranoid Type, Dysthymic Disorder, and Borderline Personality Disorder," and recommended "immediate hospitalization for further extended evaluation and stabilization on medication."

Defendant was then admitted to the state forensic psychiatric hospital on November 16, 1998. During his evaluation at the hospital, defendant "denied auditory and visual hallucinations . . . denied any immediate intent[] to hurt himself and others . . . . He also stated that he loves himself too much to hurt himself." Dr. Jackson concluded, "he is ready to defend himself if necessary." Defendant acknowledged "that he has a bad temper." The discharge report, dated December 11, 1998 further indicated that defendant's

[m]emory for both recent and remote events was good. Intellectual functioning is appropriate to educational background. Insight is good. He understands that he has a temper problem and is willing to continue taking medication that is prescribed for him. Judgment is fair and is highly influenced by a low frustration tolerance and poor impulse control.

He was deemed competent to work with counsel in his defense and to stand trial. His diagnosis on discharge for Axis I was "impulse control disorder, NOS;" and for Axis II, "antisocial traits."

With the exception of Dr. Jackson's October 24, 1998 report recommending hospitalization for in-depth evaluation, defendant's psychological evaluations do not indicate that defendant was incompetent to stand trial, insane or demonstrated diminished capacity. Indeed, the in-depth evaluation conducted after Dr. Jackson recommended defendant be hospitalized unequivocally states that he was competent to stand trial. Moreover, nothing in the hospital's discharge report even suggests that defendant may have been functioning with diminished capacity or insanity at the time of the shooting. See State v. Jimenez, 188 N.J. 390, 407 (2006) (quoting N.J.S.A. 2C:4-1) (explaining that "a defendant claiming diminished capacity argues that the State cannot prove the mens rea element of the crime beyond a reasonable doubt because he or she lacked the capacity to form the requisite intent to commit the crime;" and "[a] defendant claiming insanity . . . argues . . . that he or she did not 'know the nature and quality of the act' committed or 'did not know what he [or she] was doing was wrong.'") A defendant bears the burden of proving diminished capacity or insanity. Id. at 406.

All of defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-5552-04T4

May 25, 2007