STATE OF NEW JERSEY v. MICHAEL BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BROWN,

Defendant-Appellant.

________________________________________________________________

July 2, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-11-1120.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief; Nancy Fayed, Legal Intern, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of first-degree murder, first-degree felony murder, second-degree conspiracy, first-degree kidnapping, third-degree possession of weapons, fourth-degree tampering with evidence, and third-degree hindering apprehension or prosecution. He was sentenced to life imprisonment with thirty years parole ineligibility on the murder count, a consecutive sentence of fifteen years with parole ineligibility of eighty-five percent on the kidnapping charge, a consecutive sentence of five years with parole ineligibility of one-third on the hindering apprehension charge; the remaining counts were merged and dismissed.

In his direct appeal, defendant challenged the trial court's refusal to accept a proposed plea agreement and his sentence. We affirmed his convictions and sentence in an unpublished opinion. State v. Brown, No. A-3925-00 (App. Div. Apr. 3, 2003), certif. denied, 177 N.J. 494 (2003). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

Defendant filed a pro se PCR petition in October 2004 in which he argued that key jury instructions were omitted at trial and that both trial and appellate counsel provided ineffective assistance. In September 2008, a brief submitted on defendant s behalf raised additional arguments, which included claims that trial counsel had been ineffective in failing to develop a defense based on defendant's organic brain disease and that the prosecutor had made inappropriate comments during summation. No medical records were submitted to support defendant's argument regarding his brain disease. At no time did defendant assert any colorable claim of innocence or deny he had murdered a handicapped woman and participated in dismembering her body and discarding it in a dumpster.

The PCR judge, who had presided over defendant's trial, denied the petition and set forth his reasons in an oral decision. He observed that defendant's trial counsel was deceased and that the issues raised in the petition could have been raised on direct appeal but were not so raised. The judge found no deficiency in the performance of either trial or appellate counsel. Specifically addressing the contention that trial counsel was ineffective for failing to develop a defense based on defendant's organic brain disease, the court noted that, "although given ample opportunity to address that claim in the post-conviction setting, [defendant] did not submit to the court any medical or psychiatric records to support his claim" of ineffective assistance of counsel.

In his appeal, defendant argues that the PCR judge erred in failing to conduct an evidentiary hearing on his petition.

As a preliminary matter, we agree with the PCR judge that Rule 3:22-4(a) bars consideration of the arguments defendant raised or failed to raise at trial or on direct appeal, i.e., the arguments regarding the jury instructions and the prosecutor's summation.

To be entitled to an evidentiary hearing on defendant's claim that trial counsel was ineffective in failing "to develop a defense based upon defendant's organic brain disease," defendant was required to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). He had to demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, supra, 129 N.J. at 463. Under this test, he had to establish that (l) counsel's performance was deficient and he or she made errors that were 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 rights 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, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In assessing whether counsel's assistance was ineffective under the Strickland-Fritz test, "there is a strong presumption that counsel's performance fell within the wide range of reasonable representation." Pressler & Verniero,Current N.J.Court Rules,comment 1.1on R.3:22-2 (2014).

When, as here, "a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002).

As the PCR judge noted, defendant has presented no certifications, affidavits, or other sources of facts to support a claim that he suffered from an organic brain disease. We note, however, that this issue was not ignored at trial.

Defendant raised a defense of diminished capacity, "which was predicated in large measure upon a lengthy history of abuse as a child, mistreatment by his then substance-abusing mother, and the consumption of drugs and [a] substantial amount of alcohol prior to and during the" assault and murder. In support of this defense, his counsel presented the testimony of a psychiatrist, Dr. Robert T. Latimer, who opined that defendant was suffering from an alcohol-induced mental blackout at the time of the murder based on defendant's "long history since he was eleven years old of having memory problems and blackouts." He also testified as to the "organic" nature of alcoholic blackouts. However, when Dr. Latimer was asked whether brain damage from earlier concussions may have had an effect on defendant's state of mind at the time of the homicide, Latimer replied, "I don't know." Defendant has presented no evidence to support a claim that "effective" counsel could have procured expert testimony more likely to support a defense predicated on an organic brain disease.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.