STATE OF NEW JERSEY v. RASHID PETERSON-GAINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5100-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHID PETERSON-GAINES,

Defendant-Appellant.

________________________________________________________________

March 18, 2011

Submitted November 30, 2010 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-02-0230.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, 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 appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was found guilty by a jury of aggravated manslaughter, N.J.S.A. 2C:11-4a, and hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1), in October 2002. He was sentenced on the aggravated manslaughter count to twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), with five years parole supervision, and to a consecutive term of four years on the hindering apprehension count. Defendant's convictions and sentence were affirmed on direct appeal, State v. Peterson-Gaines, No. A-4154-02 (App. Div. May 19, 2006), and his petition for certification was denied in October 2006.

The facts regarding the underlying offenses are set forth in sufficient detail in our opinion addressing his direct appeal and need not be repeated here. Defendant did not challenge the sufficiency of the evidence in his direct appeal. He argued that reversible error was committed in the denial of his motion to suppress his confession, the admission of certain evidence and the court's refusal to charge self-defense. He also challenged his sentence and argued that his attorney's decision "to pursue only a denial defense, and to forego a diminished capacity defense" deprived him of the effective assistance of counsel. We declined to consider defendant's ineffective assistance of counsel argument, permitting it to be raised in a PCR petition and rejected all of defendant's remaining arguments as without merit.

Defendant filed a pro se PCR petition on August 29, 2007, in which he argued (1) that because, as an indigent defendant, he was denied the opportunity to present competent expert psychiatric testimony, he was unable to present a diminished capacity defense; (2) that his attorney's decision not to pursue a diminished capacity defense denied him the effective assistance of counsel; and (3) his appellate counsel's failure to raise issues on direct appeal regarding a diminished capacity defense denied him the effective assistance of counsel. Following the appointment of counsel, an amended petition and supplemental brief were filed, which raised the following issues: (1) the failure to present evidence of mental disease or defect at trial constituted ineffective assistance of counsel; (2) the failure to present evidence of defendant's inability to give a credible statement constituted ineffective assistance of counsel; (3) the cumulative errors of counsel warranted vacating defendant's convictions and sentence or an evidentiary hearing; and (4) defendant was entitled to resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).

The trial court granted defendant's request for an evidentiary hearing for the purpose of reviewing the strategy of defendant's trial counsel, Robert Corbin, Esq.

Corbin testified that, after completing judicial clerkships in the Chancery and Law Divisions, he joined the Middlesex County Prosecutor's Office and worked there, in two tours, for approximately seven years. After another period in private practice, he returned to the Prosecutor's Office as First Assistant Prosecutor and remained there for approximately eight years. As both a prosecutor and defense counsel, he had extensive experience in the trial of criminal matters, including homicides.

Corbin was assigned to represent defendant by the Public Defender's office. Corbin believed, based upon his discussions with his client, that defendant understood the facts, what was said and was happening, the nature of the proceedings and the consequences of the trial.

Corbin was aware that the file contained a psychiatric report by Jonathan Willard-Mack, M.D. and that defendant's behavior at the time he was arrested was described by a police officer as "very strange." When defendant was arrested, he made statements to the police in which he admitted being in the company of the victim at or near the time of his death. In one of the statements defendant said, "I killed him," which Corbin understood to mean that defendant caused the victim's death by putting him in a position where someone could kill him.

Corbin testified that he considered whether diminished capacity at the time of the homicide could be established and described the difficulties presented regarding that defense. Although defendant made several inconsistent statements, none of which made sense, they were made on the day of his arrest and would not establish diminished capacity on the day of the victim's death three months earlier unless there was a "continuing type of behavior." There was also the problem that the precise date of the victim's death was unknown, since the body was not discovered until some time thereafter.

Corbin also described a practical difficulty in asserting an insanity defense:

Well as I understand the insanity defense, what you have to do is basically admit that you did it or admit that you did an act and I was insane because of a mental condition so I didn't know what I was doing.

So that requires a different, a different approach to the trial that you're going to do. Yeah, it happened, he did it, but he didn't know what he was doing.

. . .

Mr. Gaines never really admitted to me that he did it.

(Emphasis added.)

Corbin further stated that his review of the evidence led him to conclude there was evidence that whoever killed the victim did so purposefully or knowingly and attempted to remove evidence that would identify the victim thereafter. He believed the evidence demonstrated a consciousness of guilt inconsistent with a diminished capacity defense.

Corbin called Dr. Willard-Mack as a witness in a pretrial hearing that addressed defendant's competency and the admission of his statements. He found the doctor's testimony unimpressive and was concerned the prosecutor would have a "field day" with him if he testified at trial. Corbin found fault with the manner in which the doctor had answered certain questions posed by the prosecutor, but, perhaps more importantly, found serious fault in the doctor's conclusions. His diagnosis was a combination of different, inconsistent theories, like "throwing everything that you have up against the wall and seeing what sticks[.]"

The trial court found Corbin's reasons for not presenting Dr. Willard-Mack and pursuing an insanity or diminished capacity defense to be credible. The court concluded these decisions were made as part of a trial strategy that comported with effective assistance of counsel.

In this appeal, defendant raises the following issues for our consideration:

POINT I

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TO THE DIMINISHED CAPACITY CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF AND THE MATTER SHOULD BE REMANDED FOR REARGUMENT

POINT III

THE APPELLATE DIVISION SHOULD EXERCISE ITS ORIGINAL JURISDICTION AND VACATE THE CONVICTION AND REMAND FOR A NEW TRIAL

After carefully reviewing the record and briefs of counsel, we are satisfied that none of these arguments have merit.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test establishing both that: (l) counsel's performance was deficient and he or she made errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists 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 687, 694.

In addressing the first prong of the Strickland/Fritz test, we will not "second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.), certif. denied, 181 N.J. 546 (2004). See Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976).

[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[State v. Castagna, 187 N.J. 293, 314-15 (2006) (citations, internal quotation marks and editing marks omitted) (emphasis added).]

Here, the PCR court found defendant's trial counsel credible in his explanation of the reasons why he did not present the testimony of Dr. Willard-Mack and did not pursue a defense based upon insanity or diminished capacity. We agree the stated reasons reflected a thoughtful consideration of the state of the evidence against defendant and the risks associated with presenting expert psychiatric testimony that was vulnerable to attack while essentially conceding defendant's involvement in the victim's death. Under the circumstances presented, counsel's strategic decision to forego this defense and testimony was a reasonable exercise of judgment. Because there is no merit to the claim that this decision deprived defendant of the effective assistance of counsel, his argument that his PCR counsel was ineffective must fail as well.