STATE OF NEW JERSEY v. DAVID MOSLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3748-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID MOSLEY,

Defendant-Appellant.

December 5, 2011

Submitted September 26, 2011 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-06-0611.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant David Mosley's 2001 trial by jury, he was convicted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and sentenced to five years imprisonment. He was also convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and sentenced to a concurrent seven years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The terms of imprisonment were to commence upon defendant's completion of an unrelated sentence he was then serving. We affirmed defendant's convictions and sentence in an unreported opinion. State v. Mosley, No. A-1306-01 (App. Div. Feb. 7, 2003). The Supreme Court denied defendant's petition for certification. State v. Mosley, 176 N.J. 430 (2003).

Defendant's first petition for post-conviction relief (PCR) was denied. He subsequently appealed, and we remanded the matter for the trial court's consideration of defendant's claim that his attorney was ineffective because he failed to seek suppression of his Mirandized1 statements. The Law Division considered those claims on remand, and PCR was again denied on November 19, 2009. This appeal followed, and we affirm essentially for the reasons stated by Judge Ferencz.

The charges resulted from defendant's assault upon a fellow inmate at East Jersey State Prison. During the attack, which was witnessed by other prisoners as well as prison guards, defendant threw a pot of boiling oil on the victim, inflicting severe injuries, and then stabbed him in the back with a shank. Prior to being formally interviewed, defendant made spontaneous admissions. One of the responding officers testified, for example, that defendant said the victim "had this coming for a long time." Defendant also made a full statement regarding the incident after waiving his Miranda rights.

Defendant contends that his attorney was ineffective because he failed to file a motion to suppress his statement. In 2004, three years after the trial, defendant was examined by a psychiatrist, Dr. Kenneth J. Weiss, who opined that at the time of the assault back in 1999:

[Defendant's] relatively poor intellect coupled with . . . his stressed emotional state caused him to express things to the police that were against his interest. This is not a function of coercion; rather, a combination of low intellect and residual anger toward the victim. . . . [E]xploration of these factors prior to trial could have been productive in an attempt to suppress the statement as evidence.

Defendant further contends that his mental state was a potential basis for suppression, had his trial counsel adequately investigated it prior to trial.

Having considered Dr. Weiss's report, the PCR judge determined on remand that defendant's impairments and emotional internal pressures, as described by Dr. Weiss, did not cause him to misunderstand his right to remain silent. As the judge observed, defendant's mistaken belief that if he explained his conduct, he would be "exonerate[d]," was not a basis for suppression. In other words, Miranda does not require suppression merely because a defendant's internal thought processes may cause him to miscalculate the outcome of a full confession.

A defendant must meet a two-pronged test in order to establish ineffective assistance of counsel. 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). A defendant must also establish that counsel's deficiency prejudiced him 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; see State v. Fritz, 105 N.J. 42, 58 (1987).

"'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). It is the defendant's burden to prove, 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.

In this case, Dr. Weiss's report at best only explained the reasons defendant decided to waive his right to remain silent. Defendant's "relatively poor intellect coupled with a high state of arousal," which caused him to "express things to the police that were against his interest," is not the factual or legal equivalent of coercion. It does not eviscerate defendant's knowing and voluntary choice to speak. Any defendant who waives his right to remain silent and implicates himself in the process is arguably moved to speak by internal pressures that may not seem logical or comprehensible to others.

The question to be decided is whether the defendant made a knowing, intelligent, and voluntary waiver of his right to remain silent, not whether his internal calculations led him to inaccurately assess the consequence of confession. See State v. Adams, 127 N.J. 438, 449 (1992); State v. McKnight, 52 N.J. 35, 55 (1968). Therefore, even if trial counsel had defendant examined, and even if the examination had resulted in a report similar to that of Dr. Weiss, all of which is highly speculative, it would have been a reasonable exercise of professional judgment to forego an application to suppress which would have likely failed. Hence defendant has not borne his burden to establish that the failure to seek suppression of the Mirandized statement by defense counsel fell outside the broad spectrum of competent legal representation. See ibid.

Furthermore, defendant cannot establish that but for his counsel's failure to suppress the statement, the outcome of the trial would have been different. See id. at 58. The assault was witnessed by several persons, all of whom testified at trial, as did the victim. Defendant himself spontaneously acknowledged having been the assailant. Thus, he has failed to establish any prejudicial impact resulting from the alleged ineffective assistance of counsel. The denial of his PCR application was not error.

Affirmed.

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