STATE OF NEW JERSEY v. LAVAUNT PETERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2758-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAVAUNT PETERSON,

Defendant-Appellant.

_________________________________________________

October 29, 2012

 

Submitted September 19, 2012 - Decided

 

Before Judges Fisher and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-09-1143.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

 

Theodore J.Romankow, UnionCounty Prosecutor, attorneyfor respondent(Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

In appealing the denial of his post-conviction relief (PCR) petition, defendant seeks a new trial based on, among other things, State v. A.O., 198 N.J. 69 (2009), which precludes admission of polygraph evidence when stipulated by the accused without the advice of counsel. Defendant was tried and convicted in 1998, and his direct appeal regarding the admission of polygraph evidence and other points was decided by this court in 2000 -- nine years before A.O. was decided. As a result, even if appropriate, pipeline retroactivity provides defendant no benefit. Additionally, we conclude that A.O. should not be applied to this case because the admission of polygraph evidence here did not strike at the heart of the truth-seeking function. We affirm the denial of relief on this ground but remand for other reasons.

Defendant was charged with the first-degree murder of Lashon Terrell in Elizabeth on June 5, 1996. Because witnesses told police they saw defendant with blood on his shirt the morning of the murder, defendant was brought in for questioning on June 6, 1996. Defendant waived his Miranda1 rights and told police he saw someone else stab the victim, took the knife from the assailant, attempted to help the victim and then called 9-1-1, but left the scene before police arrived because he was afraid. Detectives asked defendant to stipulate to a polygraph examination that could be admitted in evidence at trial; defendant agreed and so stipulated without the advice of counsel.

The polygraph examiner found defendant was deceptive in denying he stabbed Terrell. In a second statement, defendant acknowledged that his first statement was not accurate. Defendant claimed he and Terrell were horsing around when the latter jokingly pulled a knife out of his shorts. When the knife tore defendant's shirt, however, he became angry, took the knife from Terrell and stabbed him. Defendant also asserted that he had snorted a large amount of cocaine the night before, was high and did not intend for Terrell to die.

Later that evening, after again waiving his Miranda rights, defendant gave a third statement in which he admitted his second statement was not completely true. This time, defendant stated that Terrell and his girlfriend were having relationship problems and Terrell had physically abused her. Defendant asserted that Terrell's girlfriend asked defendant to kill Terrell for $1000 and drugs, and defendant agreed. Defendant also asserted that he stayed up all night before the killing and snorted cocaine while he waited for the girlfriend's signal. While defendant waited, the girlfriend handcuffed Terrell as she pretended to sexually arouse him, and defendant secured a knife from the kitchen and stabbed the victim.

Prior to trial, defendant unsuccessfully moved for the suppression of these statements, claiming he was under the influence of narcotics and the statements were involuntary. After a trial in 1998, at which the statements and evidence of the failed polygraph examination were admitted, and at which defendant neither testified nor called witnesses on his own behalf, defendant was convicted of: first-degree murder, N.J.S.A. 2C:11-3(a)(1), -3(a)(2); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:11-3(a)(1) and -3(a)(2); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). On May 15, 1998, the trial judge sentenced defendant to prison for life subject to a thirty-year period of parole ineligibility.

Defendant filed a timely appeal in which he argued that: (1) the trial judge "erred in admitting evidence of defendant's uncounseled stipulated polygraph results into evidence"; (2) the prosecutor's cross-examination and summation deprived him of a fair trial by linking "evidence of defendant's impecuniosity to the crime"; and (3) his sentence was excessive. We rejected these arguments and affirmed. State v. Peterson, No. A-6938-97 (App. Div. June 21, 2000). Defendant's petition for certification was denied on October 17, 2000. 165 N.J. 605.

Defendant filed a pro se PCR petition on November 22, 2000. That petition asserted no specific grounds for relief but was amended by a pro se filing dated March 15, 2002, in which defendant argued the ineffectiveness of his trial attorney based on: counsel's alleged failure to present evidence of a lesser-included offense, citing a long history of mental, psychiatric and substance abuse problems; counsel's alleged "poor performance" at the Miranda hearing, which should have included evidence that defendant was under the influence of "highly potent prescribed medications" at the time he was interrogated; and other unspecified instances of counsel's "woefully substandard assistance and performance." Defendant additionally asserted appellate counsel's ineffectiveness in not pursuing the alleged ineffectiveness of his trial attorney. On March 19, 2003, defendant filed an amended pro se PCR petition, which included arguments that: his trial attorney failed to object both to the admission of certain evidence and to certain portions of the prosecutor's summation; and that his appellate attorney was ineffective in failing to present the issues "both in terms of the State and Federal [C]onstitution[s]" and in failing to raise the specific instances of his trial attorney's ineffectiveness that were discussed in this amended PCR petition.

Defendant's PCR filings were later voluntarily dismissed so his appointed attorney could investigate and locate materials relevant to the arguments posed. On July 30, 2007, defendant refiled his pro se petitions, arguing some of the same points raised earlier, as well as a challenge to the admission of polygraph evidence. On July 31, 2009, defendant's appointed attorney filed a brief that argued, among other things: A.O. should be applied retroactively; and defendant's trial attorney was ineffective in failing to pursue a psychiatric defense. The PCR judge did not conduct an evidentiary hearing and, after hearing oral argument, denied defendant's contentions for reasons set forth in an oral decision.

Defendant appeals the denial of his PCR petition, arguing:

I. THE ERRONEOUS ADMISSION OF POLYGRAPH EVIDENCE MANDATES THAT DEFENDANT'S CONVIC-TIONS BE REVERSED.

 

II. THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

 

III. THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE MERITS OF VARIOUS ISSUES RAISED BY DEFENDANT (Not Raised Below).

 

For the reasons that follow, we reject the argument in Point I that the holding in A.O. should be applied to this case but agree with the argument in Point II that a remand is required to further develop whether trial counsel was ineffective with regard to his failure to present a psychiatric defense. We also find no merit in Point III.

I

During the police interrogation, after defendant told police he had witnessed someone else stab the victim, defendant agreed to undergo a polygraph examination and stipulated to the admissibility of its results at trial. As a result of the stipulation, the jury heard testimony that defendant's version that another had stabbed the victim was "deceptive" and that defendant was "lying" at the time. Peterson, supra, slip op. at 4.

Our jurisprudence at the time of the polygraph stipulation, as well as at the time of defendant's 1998 trial, took a limited view of the value of a polygraph examination. In 1962, the Supreme Court determined that polygraph examination results were inadmissible because they had not attained sufficient scientific acceptance as a reliable and accurate means for determining deception. State v. Driver, 38 N.J. 255, 261 (1962). However, ten years later, the Court opened the door to a limited use of polygraph evidence, observing that

polygraph testing has been developed to such a point of reliability that in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test, and have the results introduced in evidence, such stipulation should be given effect. Polygraph testing has sufficient probative value to warrant admission under these circumstances.

 

Of course, it must appear that the stipulation is clear, unequivocal and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it. It must also appear that the examiner is qualified and the test administered in accordance with established polygraph techniques.

 

[State v. McDavitt, 62 N.J. 36, 46 (1972)]

 

Later, this court found no error in the admission of polygraph evidence pursuant to an uncounseled stipulation, holding:

McDavitt . . . has established the terms and conditions of a polygraph stipulation and it does not prohibit the waiver of the right to counsel at the signing of the stipulation. Any change or extension of those established conditions should come from our Supreme Court.

 

[State v. Reyes, 237 N.J. Super. 250, 264 (App. Div. 1989)]

 

This was the state of the law at the time defendant stipulated to the admission of his polygraph examination while being interrogated in 1996. These principles were neither rejected nor modified by the time the trial in 1998 or throughout the direct appeal, which was completed in 2000. It was not until A.O.2 -- nine years after we affirmed the judgment of conviction in this matter -- that the Supreme Court overruled our 1989 holding in Reyes and thereafter "bar[red] the introduction of polygraph evidence based on stipulations entered into without counsel." A.O., supra, 198 N.J. at 90.

Because A.O. was decided years after the interrogation, trial and disposition of defendant's appeal, even if we were to conclude that A.O. is entitled to pipeline retroactivity, it would do defendant no good because his appeal was not in the pipeline when A.O. was decided. Defendant is only entitled to relief if A.O. is given full retroactive application. We decline the invitation to so extend A.O.'s reach.

We start with the fact that A.O.'s bar of polygraph evidence based on an uncounseled stipulation constituted a new rule. At the time of defendant's prosecution, McDavitt permitted admission of polygraph evidence when both parties had stipulated and we had also held in Reyes that polygraph evidence could be admitted in the precise circumstance here. The very language of the opinion in A.O. demonstrates that the Court understood it had created something new:

Our "overarching constitutional respon-sibility [is] to guarantee the proper administration of justice." "When we perceive . . . that more might be done to advance the reliability of our criminal justice system, our supervisory authority over the criminal courts enables us constitutionally to act." We do so now to ensure greater fairness at trial and reliability of jury verdicts.

 

Relying on our supervisory authority, we bar the introduction of polygraph evidence based on stipulations entered into without counsel.

 

[A.O., supra, 198 N.J. at 89-90 (emphasis added; citations omitted)]

 

In determining the reach of a new rule, three factors are considered: "(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it; and (3) the effect a retroactive application would have on the administration of justice." State v. Nash, 64 N.J. 464, 471 (1974); see also State v. Feal, 194 N.J. 293, 308 (2008); State v. Knight, 145 N.J. 233, 251 (1996). Defendant offers no empirical evidence or anything else by which we might consider the application of the second and third factors. And, considering the first factor, we reject defendant's contention that he should be given the benefit of A.O.'s holding; the admission of polygraph evidence here did not strike "at the heart of the truth-seeking function." Feal, supra, 194 N.J. at 309.

In this case, as we have observed, the State offered statements made by defendant after the polygraph examination that were more incriminating or damaging than defendant's failure of the polygraph examination.3 In other words, defendant's second and third statements are better evidence of defendant's earlier deception than the results of the polygraph examination. For example, in his second statement to police, defendant acknowledged that his first version, which was the subject of the polygraph examination, was not the "complete truth" and was, in fact, "a lie." And, in his third statement, defendant acknowledged that his second statement did not contain the complete truth. By the time the jury heard the polygraph expert discredit the accuracy of defendant's first statement, the jury had also heard defendant's own words discrediting the first statement.

Because the polygraph evidence here did not strike at the "heart of the truth seeking function," ibid., we reject defendant's argument that A.O. should be applied retroactively to his case.

II

In turning to defendant's contention that his trial attorney was ineffective in failing to present a diminished capacity defense, we are impressed by the fact that the record does not provide any clear indication of why such a defense was not pursued at trial. The record contains a significant body of medical records, which contain diagnoses of chronic paranoid schizophrenia and other antisocial personality traits, as well as defendant's long prior history of substance abuse. Defendant asserted in his PCR petition that he discussed these circumstances with his attorney, who assured defendant he would take the necessary steps to present such a defense. According to defendant, however, his attorney never advised him that he had retained an expert; therefore, when the expert appeared at the jail to evaluate defendant, defendant did not know why the expert was there and, as a result, did not cooperate.

Because the trial judge did not conduct an evidentiary hearing, defendant was unable to amplify this aspect of his ineffectiveness claim. We conclude that the judge erred in failing to schedule such a hearing. Without hearing, at the very least, the testimony of defendant and his trial attorney as to why a diminished capacity defense was not pursued at trial, the judge was in no position to determine, as he did, that defendant was not deprived of the effective assistance of counsel.

Accordingly, we remand for an evidentiary hearing on defendant's ineffectiveness claim based on the alleged failure of trial counsel to pursue a diminished capacity defense.

III

We find insufficient merit in any of defendant's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part; remanded in part. We do not retain jurisdiction.

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

2A few years prior to A.O., we reversed a trial court ruling that barred a defendant's use of unstipulated polygraph evidence at a pretrial hearing to determine whether defendant had consented to a search of his home. State v. Domicz, 377 N.J. Super. 515, 556-60 (App. Div. 2005). The Supreme Court, however, reversed, and held it was "not prepared to extend McDavitt to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge." State v. Domicz, 188 N.J. 285, 313 (2006).

3We do not suggest that defendant was not prejudiced by the appearance at trial of an expert who testified that defendant was deceptive during the polygraph examination. As the Court observed in A.O., "many lay people tend to view polygraph evidence as bordering on infallible," leading to the possibility in a given case that "potentially unreliable polygraph evidence may receive undue weight and distract jurors from judging the credibility of witnesses directly." 198 N.J. at 92. This valid concern played no great role here as the State's polygraph expert did not testify until after the jury was read defendant's later statements in which he, too, disavowed the version that was tested during the polygraph examination.