STATE OF NEW JERSEY v. DANIEL HOLTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6278-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL HOLTON,

Defendant-Appellant.

____________________________

October 27, 2011

 

Submitted September 19, 2011 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 03-05-0433.

 

Joseph E. Krakora, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, on the brief).

 

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent

(Matthew M. Bingham, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

A jury found defendant Daniel Holton guilty of second-degree robbery, N.J.S.A. 2C:15-1(a)(3); second-degree burglary, N.J.S.A. 2C:18-2(a)(1); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); and fourth-degree false incrimination, N.J.S.A. 2C:28-4(a). He was sentenced to an aggregate fifteen-year term subject to a period of parole ineligibility and supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed his convictions on direct appeal, State v. Holton, No. A-3428-04 (App. Div. Feb. 21, 2008), and the Supreme Court denied certification, 195 N.J. 420 (2008). Defendant now appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

The evidence supporting defendant's convictions is set forth in our prior opinion and can be summarized as follows. Around midnight on January 17, 2003, an eighty-four-year old woman was home alone and asleep, but she was awakened by the sound of a bang at the door. In her hallway, she found a man wearing a mask that covered all of his face except his eyes. He refused to leave and forced the woman into the bedroom, where he bound her arms and legs and covered her with a blanket. She listened while he rifled through her drawers and emptied her purse in which she had about $50. After he left, she freed herself and phoned the police from her neighbor's home. She was able to describe her attacker as a tall white man wearing white sneakers.

Outside the burglarized home, there were two sets of footprints in the fresh snow made by someone wearing sneakers. The officers tracked one set to a home; defendant and Charles Hope were renting and living in the garage on the property. With defendant's consent, the officers searched his half of the garage and did not find sneakers that matched the footprints.

Several days later, defendant contacted the police and told them he had overheard Hope and his landlord talking about the burglary. He gave them specific information describing how the victim had been bound, the mask and the amount of cash taken. Based on that information, the police interviewed Hope but excluded him as a suspect. Thereafter, the investigators focused on defendant. Subsequently, defendant admitted that he had lied to the police, and implicated someone else, "Q." According to defendant, on the night of the burglary "Q" came to defendant's home and borrowed a crow bar and duct tape to rob a house; after "Q" left, defendant heard the bang at his neighbor's door. In a subsequent interview, defendant admitted conspiring with "Q" to rob the lady and agreeing to serve as the "lookout." Defendant said he was afraid of "Q." He was arrested and confined.

While in jail, defendant implicated his landlord. No other suspect was indicted with defendant. He was tried in October 2004, and his judgment of conviction was entered on December 17, 2004. He filed his petition for PCR on July 22, 2008, and it was denied on January 11, 2010.

I

Defendant raises these issues on appeal from the denial of his petition:

I. THE LOWER COURT ORDER MUST BE REVERSED

SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. Trial counsel failed to request an appropriate charge to the jury.

B. Trial counsel allowed the jury to reach a verdict of guilt based on inconsistent theories.

 

C. Counsel failed to provide effective assistance since he did not pursue a

competency evaluation.

 

D. Counsel failed to prepare a diminished capacity defense.

 

E. Trial counsel failed to file a motion to suppress the evidence.

II. THE LOWER COURT ORDER DENYING THE

PETITION MUST BE REVERSED SINCE

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

III. THE LOWER COURT ORDER MUST BE REVERSED

IN LIGHT OF ADDITIONAL ERRORS.

 

IV. THE LOWER COURT ORDER MUST BE REVERSED

SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

 

V. THE LOWER COURT ERRED IN NOT CONDUCTING

AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

VI. THE LOWER COURT ORDER MUST BE REVERSED

SINCE DEFENDANT IS ENTITLED TO RE-SENTENCING UNDER STATE V. NATALE, 184 N.J. 458 (2005).

A

After considering the arguments in light of the trial record, the evidential material submitted in support of the petition and this court's opinion on direct appeal, we have determined that several do not have sufficient merit to warrant extensive discussion. We address those issues here.

In Point I (A) and II, defendant complains that his trial and appellate attorneys did not address the court's failure to deliver an appropriate instruction guiding the jurors' consideration of the various statements he gave to the police. Defendant argues that trial counsel's performance was deficient because he did not request the charge mandated by State v. Hampton, 61 N.J. 250 (1972) and State v. Kociolek, 23 N.J. 400 (1957), or direct the jury not to consider his confession unless it was corroborated by other evidence, and he submits that appellate counsel's performance was deficient because the issue was not raised on appeal. The record defeats these claims. Trial counsel requested an instruction fully addressing the matter, and appellate counsel raised the court's decision to omit an instruction on corroboration. It is addressed in our prior opinion. Holton, supra, slip op. at 19-22.

The argument presented in support of Point I(B), which is cast as a question of inconsistent verdicts, is actually a contention that the verdict sheet permitted a verdict that was not unanimous. He submits that because the verdict sheet did not require the jurors to indicate whether they found defendant guilty as an accomplice to another or as the principal, the jurors may have found guilt on different theories. This argument is without legal foundation. In State v. Frisby, 174 N.J. 583, 596 (2002), the Court noted, "it has been held that a jury does not have to agree unanimously on whether a defendant has acted as a principal or an accomplice." See also United States v. Peterson, 768 F.2d 64 (2d Cir.) (cited in Frisby as support for the proposition), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985).

In Point I(E), defendant contends trial counsel was ineffective for failing to file a motion to suppress his statements. A hearing on defendant's motion to suppress his statements was held, immediately before jury selection, on October 13, 2004. The judge denied the motion, and this court affirmed the determination on direct appeal. Holton, supra, slip op. at 9-19.

The arguments raised in Point III reiterate and restate issues raised in other points of the brief. There is no reason to discuss that cumulative error argument raised in Point IV because we find no error.

B

In Points I(C) and (D), defendant contends that his trial counsel was deficient because he did not investigate defendant's competency to stand trial or the possibility of presenting a "diminished capacity" defense. In Point V, he claims he was entitled to an evidentiary hearing on those claims. Again, the record defeats the claims.

In order to obtain relief from a conviction based upon ineffective assistance of counsel, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)) (internal quotation marks omitted) (emphasis added).

Here the specific act identified is failure to investigate defendant's competency to stand trial and diminished capacity, a defense based on the defendant's state of mind at the time of the offense. Trial counsel apparently did investigate the issues.

The record includes a report prepared by a defense psychiatrist, Dr. Kenneth J. Weiss, who evaluated defendant before and after trial. The report provided to us on appeal was prepared for the purpose of sentencing, but it states that Dr. Weiss also evaluated defendant prior to trial. The doctor's evaluation assesses defendant's competence and addresses defendant's mental state at the time of the crime. Dr. Weiss provides a thorough account of defendant's history and impairments; he does not indicate that defendant was unable to recall events or communicate thoughts. N.J.S.A.2C:4-4. He simply notes that defendant is not mentally retarded but has congenital neurological impairments that materially affect his behavior. Relevant to defendant's mental state, Dr. Weiss advised defendant's lawyer that he is unable to provide any information about defendant's state of mind at the time of the crimes, because of defendant's assertion that he was not a participant and became involved only because he gave information to the police. N.J.S.A.2C:4-2.

In light of this report, defendant cannot establish that his attorney failed to investigate. We recognize that the pre-sentencing report reflects defendant's inability to read or write, and indicates a history of placement in special education and an early diagnosis of mental disturbance. It also includes records of instances in which defendant was hospitalized between his arrest and trial, because he attempted suicide and reported auditory hallucinations and suicidal thoughts. Nevertheless, hospital notes made on defendant's mental status in the months preceding the trial reported: he was"aware, oriented and coherent with no evidence of any manifest thought disorder or major affective component"; "oriented to the month, person, and place"; discussing contacting "his lawyer"; "alert and oriented," with memory intact; and functioning intellectually in the "low average range," despite poor insight and judgment.

We conclude that defendant is not entitled to relief or even an evidentiary hearing on his claim of deficient investigation of his mental state. Because counsel did have defendant evaluated before trial and there is nothing to indicate that he should have done more or that the additional effort would have been productive, defendant failed to establish even a prima facie case of deficient performance. State v. Preciose, 129 N.J. 451, 463 (1992). Accordingly, we reject the arguments defendant raises in Points I(C) and (D) and V.

 

C

Defendant's final point has merit. As the State concedes, defendant is entitled to be sentenced in accordance with State v. Natale, 184 N.J. 458 (2005), because his appeal was pending when that case was decided. Accordingly, we remand for that limited purpose and do not retain jurisdiction.

Affirmed in part and remanded.