STATE OF NEW JERSEY v. RICHARD HURLING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0534-08T40534-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD HURLING,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 15, 2010 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-08-0962.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post conviction relief (PCR). He is serving a forty-year term of imprisonment subject to a thirty-year parole disqualifier for murder. He was convicted in December 1997 and sentenced on February 20, 1998. In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Hurling, No. A-6618-97 (App. Div. January 24, 2000). The Supreme Court denied defendant's petition for certification. State v. Hurling, 165 N.J. 532 (2000).

Defendant raises the following arguments:

POINT I

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

A. Trial counsel failed to investigate or develop a defense based on defendant's mental condition.

B. Trial counsel failed to subpoena and present essential witnesses at trial.

C. Trial counsel was ineffective in regards to the charge to the jury.

D. Trial counsel failed to consult and present the testimony of an appropriate expert.

E. Trial counsel failed to object to the prosecutor's inappropriate comments during summation.

F. Trial counsel deprived defendant of his opportunity to testify on his own behalf.

G. Trial counsel was ineffective in failing to argue applicable mitigating factors during sentencing.

H. Trial counsel failed to argue that defendant's confession should have been suppressed since defendant waived his rights after giving the statement.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE FIRST PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.

POINT V

THE IMPOSITION OF THE SENTENCE VIOLATES DUE PROCESS AND THE RIGHT TO A TRIAL BY JURY BECAUSE AGGRAVATING FACTORS WERE NOT FOUND BY A JURY.

POINT VI

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VIII

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

We reject these arguments and affirm.

I

In our prior opinion on direct appeal, we summarized the relevant facts of the homicide underlying defendant's conviction, and the events in the weeks following the crime leading up to defendant's confession and arrest. From our independent review of the record on this appeal, we have verified the accuracy of the recitation from our prior opinion, which we now set forth:

Defendant admitted in a statement given to the police that he strangled the victim, Gregory Johnson, on April 3, 1996 in Johnson's apartment during a dispute over the ownership of an amount of heroin. When Johnson did not allow defendant to take the heroin, defendant responded by pushing him on the shoulder. The violence escalated, Johnson kneed defendant in the groin. Defendant then reached for a wine bottle and hit Johnson on the right side of his head causing Johnson to fall, and defendant began to choke him for two to three minutes. Defendant urinated in his pants. He then wrapped an extension cord around Johnson's neck and pulled until the victim was dead. Defendant left the scene, first returning to his home, and then going to Newark to buy more drugs. Later he told relatives and friends that he had killed someone.

Police found Johnson's body the day after the murder. While searching the Johnson apartment, they found an address book that contained defendant's name. Eight days later, the police asked defendant to come to headquarters to give a statement.

Detective Jimenez testified that defendant was not a suspect when he came to headquarters in response to that request. Defendant told detectives that he knew Johnson for fifteen years and had last seen him on April 2, 1996. He also told detectives that Johnson sold cocaine from his apartment for a drug dealer. After giving the statement, defendant was permitted to leave freely.

On April 18, 1996, based on information received from defendant's niece respecting defendant's admissions to her, an arrest warrant was executed for his arrest. Defendant was taken to police headquarters, given the Miranda1 warnings, and then questioned for a second time. He told police that he had consumed three beers and had taken methadone prior to being arrested. Before questioning, defendant voluntarily signed the Miranda waiver form, and defendant said that his judgment was not impaired in any way. He then confessed to the murder, acknowledging in a formal written statement that he was treated well and had been fully advised of his constitutional rights.

________

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

[State v. Hurling, supra, slip op. at 5-6.]

II

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). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. 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. 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. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

The Supreme Court of New Jersey has recognized that "'[j]udicial 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 strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

III

We first consider defendant's arguments regarding trial counsel. In his PCR proceeding, defendant argued that his trial counsel was deficient for not developing a defense based on defendant's mental condition. Judge Barisonek, who presided over defendant's trial and PCR proceeding, rejected the argument because it was not factually supported. Indeed, the judge ordered the Office of the Public Defender to produce its trial file. Upon review of that file, it was determined that defendant's trial counsel had indeed had defendant examined by two mental health experts, a psychologist and a psychiatrist. Each rendered a report unequivocally stating that defendant did not suffer from a diminished capacity, nor was he intoxicated to such a level that would deprive him of the ability to act knowingly or purposely. The reports had been furnished to defendant. Therefore, trial counsel conducted an adequate investigation and made an informed decision that no viable diminished capacity or intoxication defense was available.

Defendant next argues that trial counsel was ineffective for failing to interview and present essential witnesses who could have testified "regarding defendant's psychological problems caused by drug and alcohol abuse." Defendant has not named the proposed witnesses or provided affidavits from them stating what they would have said if called as witnesses at trial. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, in light of the conclusions in the experts' reports we mentioned, the decision of trial counsel not to pursue a diminished capacity defense was a sound strategic decision that should not be second guessed.

Defendant next argues that trial counsel was ineffective for not requesting that the jury be charged on lesser included offenses, and that counsel "should have sought a hearing and/or finding with respect to the denial of the charge on diminished capacity." The judge did charge all lesser-included homicide charges, namely passion/provocation manslaughter, aggravated manslaughter, and reckless manslaughter. The judge also charged self-defense. Defendant does not suggest what other lesser-included charges should have been given. Further, for the reasons we have already discussed, counsel was not deficient with regard to the diminished capacity issue.

Defendant also argues that trial counsel was ineffective for failing to object to the prosecutor's comment in summation that defendant took the "breath of life" from the victim. During the course of his summation, the prosecutor used the "breath of life" expression several times. He began his summation by quoting from the Bible:

The State would like to begin its remarks with a very short story. In the Jud[e]o-Christian culture there is a book, a Bible and the first book of the Bible is Genesis. Chapter five, verses seven through eight talk about God. God, after he created the sky, created the heavens, put the sun and the moon in their places, filled the earth with all animals, he bends down into the clay of the earth, picks up that clay and forms a man and when he forms that man, he opens the nostrils of that man and puts in the breath of life.

Defense counsel did object to the use of the term "breath of life," albeit on the grounds that the murder did not entail a technical asphyxiation, rather than on the grounds that the prosecutor improperly interjected religious issues into the trial. At sidebar, Judge Barisonek expressed surprise over the basis for the objection, stating he thought the objection was going to be based on the grounds of separation of church and state. The judge gave a curative instruction that included defendant's grounds for objection, namely that the State's theory of causation was not asphyxiation, but hemorrhaging. The instruction also addressed the religious aspects of the comments. The judge told the jury to "please remember that this case is not to be decided on emotion or based on religious beliefs. The case is to be decided on the basis of the law as I give it to you . . . not based on passion, emotion or religion but based on the facts and the law."

This issue, of course, could have been raised on direct appeal and is subject to the procedural bar of Rule 3:22-4. It is also lacking in substantive merit because trial counsel did indeed object, as a result of which the first Strickland/Fritz prong is not satisfied. Further, the judge's curative instruction was appropriate and adequate, thus eliminating any prejudice to defendant and defeating the second Strickland/Fritz prong.

Defendant's argument that trial counsel was ineffective because he "deprived [defendant] of the opportunity to testify on his own behalf" is factually unsupported by the record. Judge Barisonek questioned defendant on the record about his choice not to testify, confirming that defendant had sufficient time to discuss the issue with his attorney and made the decision that he would not testify. Defendant has presented nothing more than a bald assertion that his attorney "deprived" him of his right to testify. He has provided no certification or other showing as to what his attorney did that is outside the trial record to improperly induce, persuade, or coerce him into not testifying. Thus, defendant has failed to make the required threshold showing required by Cummings.

Defendant contends that trial counsel was deficient for failing to argue applicable mitigating factors at sentencing, particularly those relating to his alleged mental problems, his cooperation with the police, the fact that the killing resulted from provocation, his drug and alcohol problems, and his limited criminal record. First, the claim is procedurally barred because this argument was raised and rejected on direct appeal. See R. 3:22-5. The argument also lacks substantive merit because the judge did consider these factors to the extent they were applicable.

Finally, defendant argues that trial counsel was ineffective because he "failed to argue for suppression of his statement [to police] on the basis that defendant's waiver of rights occurred after defendant gave a formal statement to the police." This claim is also procedurally barred because it was raised and rejected on direct appeal. See R. 3:22-5. The claim also lacks substantive merit.

We have no hesitancy in concluding that Judge Barisonek's rejection of defendant's claims of ineffective assistance of trial counsel is well supported by the record.

IV

We now consider the claims raised by defendant in Points II through VIII.

Defendant contends he received ineffective assistance of appellate counsel because that counsel did not raise certain meritorious issues on direct appeal, "particularly those now raised in the PCR petition." Defendant provides no examples of any such "meritorious issues." Moreover, for the reasons we have discussed, no such meritorious issues existed. Neither prong of the Strickland/Fritz test has been established with respect to appellate counsel.

Prior to filing the PCR petition that is the subject of this appeal, defendant had filed a pro se PCR petition. Upon reviewing it, his assigned PCR counsel advised defendant to dismiss it without prejudice because it did not appear to be meritorious. Defendant did so, and he now argues that his original PCR counsel was ineffective in that regard. We recognize that a PCR counsel must communicate with his or her client and investigate and advance all claims on behalf of the client. R. 3:22-6(d); State v. Rue, 175 N.J. 1, 18-19 (2002). Even if counsel deems some pro se arguments meritless, counsel is nevertheless required to at least incorporate the arguments by reference in the PCR brief. State v. Webster, 187 N.J. 254, 257 (2006).

Therefore, when defendant's original PCR counsel advised defendant to seek dismissal without prejudice of his first petition because counsel believed the petition to be meritless, this arguably violated Rue and Rule 3:22-6. However, even if the first Strickland/Fritz prong was satisfied, the second was not. The remedy would be nothing more than a remand for a PCR hearing, which defendant received when he filed the petition that is now before us. Defendant was provided with counsel on this petition, which was fully presented and considered by Judge Barisonek.

We also reject defendant's argument that the cumulative errors of his various attorneys deprived him of a fair outcome. As we have stated, defendant's trial and appellate attorneys were not deficient, and even if his original PCR counsel was deficient, defendant suffered no prejudice.

Defendant also makes two arguments regarding his sentence. He first contends that because the sentence was above the "presumptive term" it violated his constitutional rights to a trial by jury and due process because aggravating factors were determined by the judge rather than a jury. He further argues that his sentence is properly subject to review in a PCR proceeding because the sentence is illegal.

Judge Barisonek correctly found that the sentencing argument was procedurally barred by Rule 3:22-5. Further, the sentence was neither constitutionally deficient nor illegal. There is no presumptive sentence for murder. State v. Abdullah, 184 N.J. 497, 507-08 (2005). The murder statute, N.J.S.A. 2C:11-3b(1), authorizes imposition of a sentence of a specific term of years between thirty years and life. The judge was therefore permitted to impose a sentence of forty years based upon his weighing of aggravating and mitigating factors. Abdullah, supra, 184 N.J. at 508-09. Our Supreme Court's Natale decision is simply inapplicable to this case. State v. Natale, 184 N.J. 458, 466 (2005) (holding that sentences above the presumptive statutory term based solely upon judicial findings of aggravating factors other than prior convictions violates right to a jury trial). The imposition of the sentence did not violate defendant's due process rights or his right to a jury trial, nor was it illegal.

Defendant claims the judge erred in not granting him an evidentiary hearing before denying his petition. We disagree. To be granted an evidentiary hearing, a defendant must present a prima facie case in support of his claims. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim a defendant must demonstrate the reasonable likelihood of succeeding on the merits. Id. at 463. As we have discussed, defendant did not demonstrate a reasonable likelihood of success on the merits of any of his PCR claims. No evidentiary hearing was warranted.

Any arguments not specifically addressed lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

 
Affirmed.

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A-0534-08T4

April 14, 2010