STATE OF NEW JERSEY v. DEREK V. SAMPLE

NOT FOR PUBLICATION WITHOUT THE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.

DEREK V. SAMPLE,

Defendant-Appellant.

___________________________________

March 25, 2014

Submitted March 10, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-09-01269.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer S. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Derek V. Sample appeals from the Law Division's June 12, 2009 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On September 12, 2002, a Burlington County grand jury charged Sample with first-degree murder, N.J.S.A.2C:11-3(a)(1) or (2); felony murder, N.J.S.A.2C:11-3(a)(3); first-degree armed robbery, N.J.S.A.2C:15-1(a)(1); and first-degree robbery, N.J.S.A.2C:15-1(a)(1). In 2004, a jury convicted Sample of all charges. After merger, the trial court imposed an aggregate forty-five year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2.

We affirmed the conviction and sentence. State v. Sample, No. A-2477-04 (App. Div. Oct. 12, 2006). The Supreme Court denied certification. State v. Sample, 189 N.J.428 (2007).

We glean the underlying facts of Sample's criminal conduct from our 2006 opinion:

Defendant killed Pickett Durham, who was fifty-seven years old and medically fragile. Durham suffered from heart disease, diabetes, successfully treated prostate cancer, and a transplanted kidney. Just prior to Durham's death, defendant was living in an apartment with him and his niece, who was defendant's girlfriend. On October 25, 2001, defendant had been out drinking and smoking crack cocaine. He returned to the apartment hoping to steal Durham's money to purchase more crack. A verbal altercation ensued, and defendant stabbed Durham in the back with a ten-inch kitchen knife. Defendant then stole Durham's jeans, because he believed that Durham's wallet, containing the money he was looking for, was in them.

Durham called 9-1-1 and told the dispatcher that defendant had stabbed him. Paramedics and police officers from Mount Holly and Lumberton responded. After Durham was stabilized, paramedics transported him to Cooper Hospital Trauma Center. As one of the officers was leaving the scene, he noticed defendant in the back of the building attempting to hide. Defendant was arrested and brought to headquarters.

Later, a sergeant and detective awoke defendant and brought him from his cell to the interview room in order to talk with him. As the sergeant escorted defendant, he noticed that defendant was able to walk without assistance and that his eyes were not bloodshot or glassy. He did not appear to be drunk or under the influence of any substance. The officers provided defendant with a blanket and coffee.

The sergeant advised defendant of his constitutional rights and defendant signed the Miranda card waiving those rights. Defendant articulately answered all questions and admitted stabbing Durham in the back. Defendant also disclosed the location of the wallet, knife, and jeans. Defendant then agreed to have his statement audiotaped. At no time during the interview did defendant request the assistance of counsel or request that the interview be discontinued.

Meanwhile, a doctor in the hospital performed surgery on Durham to stop the bleeding, repair the holes in his colon and diaphragm, re-expand his lung, and wash his abdomen in an attempt to remove fecal material from the area. The next day, Durham experienced breathing problems which required that he be placed on a respirator. That evening, Durham suffered a heart attack. The doctors suspected that Durham had a blood clot on his lung. The hospital moved him to Intensive Care where he began to suffer from peritonitis, which was caused by the "spillage" of fecal matter from his colon into the abdominal cavity. Durham's condition deteriorated and several days later, pursuant to his wishes, the hospital removed him from life-support. He died within forty minutes.

[Sample, supra, slip op. at 2-4.]

In July 2008, Sample filed a pro se PCR petition. After counsel was appointed, the Law Division conducted a hearing on May 15, 2009. One month later, on June 12, 2009, the PCR judge, who also conducted the underlying trial, issued a written opinion denying PCR and entered a corresponding order.

The PCR judge found that Sample's myriad ineffective assistance of counsel arguments were unpersuasive, and that many of the putative errors identified by Sample were barred by Rule3:22-4(a)(1)'s preclusionary principles because they were not previously asserted when they could reasonably have been raised in any prior proceeding. Specifically, the PCR judge found Sample's contentions "ripe for review and should have been raised on appeal." Since they were not, Sample's arguments were "procedurally barred." This appeal followed.

II.

On appeal, Sample presents the following arguments for our consideration:

POINT I: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING AT WHICH DEFENDANT WOULD HAVE HAD THE OPPORTUNITY TO PRESENT TESTIMONY SUPPORTING HIS CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

A. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO REQUEST A JURY CHARGE ON THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY.

B. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PREJUDICIAL AND INFLAMMATORY TESTIMONY OF THE VICTIM'S SISTER-IN-LAW WHO IMITATED THE VICTIM'S GASPING VOICE AT TRIAL.

C. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO EVIDENCE OF PRIOR WRONGS THAT WAS INCLUDED IN DEFENDANT'S STATEMENT TO POLICE.

D. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF DEFENSE COUNSEL'S FAILURE TO PROTECT DEFENDANT'S RIGHT TO BE PRESENT AT ALL CRITICAL PHASES OF HIS TRIAL.

E. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO INADMISSIBLE HEARSAY.

F. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER COMMENTS IN THE PROSECUTOR'S CLOSING STATEMENT.

G. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO PURSUE A DEFENSE OF DIMINISHED CAPACITY AS SUPPORTED BY THE EXPERT REPORT OF DR. SADOFF.

POINT II: THE PCR COURT ERRED IN FINDING THAT DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III: DEFENDANT'S PETITION FOR PCR SHOULD HAVE BEEN GRANTED ON THE GROUNDS OF CUMULATIVE ERROR.

POINT IV: DEFENDANT'S PETITION FOR PCR SHOULD HAVE BEEN GRANTED BASED ON THE ADDITIONAL ARGUMENTS SET FORTH IN DEFENDANT'S PRO SE BRIEF.

Our review of the record convinces us that, except for Points I(A), I(G), and II, all of Sample's contentions are wholly meritless. R. 2:11-3(e)(2). We address the remaining arguments in turn.

Generally, PCR is a "'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). A petition for PCR essentially acts as a defendant's final opportunity to contest the "fairness and reliability of a criminal verdict in our state system." Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a post-conviction relief hearing provides a final opportunity to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).

A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. Nash, supra, 212 N.J. at 541. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

In order to obtain relief for suffering the ineffective assistance of trial or appellate counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, ___ N.J. ___, ___ (2014) (slip op. at 5). A defendant "must show both (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.

To satisfy the first factor, Sample is required to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the 'the wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Therefore, Sample "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Regarding the second Strickland/Fritz factor, Sample must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In this context, it is insufficient for Sample to demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 866-67, 102 S. Ct. 3440, 3446-47, 73 L. Ed. 2d 1193, 1201-03 (1982)).

On appeal, the standard of review of a denial of a PCR petition is whether the PCR court's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny of counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). However, we give no deference to and are not bound by the PCR court's legal conclusions, which are reviewed de novo. Nash, supra, 212 N.J. at 540. Additionally, if the Law Division did not conduct an evidentiary hearing, we may exercise de novo review over the factual inferences the PCR court has drawn from the record. State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (citing State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)), certif. denied, 206 N.J.64 (2011).

Sample argues that his PCR petition should have been granted because "trial counsel's failure to request, and the trial court's failure to provide, a jury charge on theft as a lesser included offense of robbery" deprived him of his "fundamental right to a fair trial[.]" Sample also argues that the trial court should have included a jury charge on reckless manslaughter as a lesser included offense of murder.

Specifically, Sample contends that a theft instruction should have been given because the jury could have concluded that he did not intend to commit a theft before stabbing Durham, and that he only decided to take the wallet after the stabbing. We are not persuaded.

Robbery requires that the intent to steal be formed before or simultaneously with the use of force. State v. Whitaker, 200 N.J. 444, 461 (2009) (quoting State v. Lopez, 187 N.J. 91, 101 (2006)). Here, the evidence does not support Sample's contention; indeed, Sample's statement to the police contradicts his contention that he did not decide to take Durham's wallet until after the stabbing. The following is an excerpt from Sample's statement to police:

Q: The purpose of you going back to the apartment tonight, you get a ride there, the guys are waiting for you outside?

A: Right.

Q: What was the purpose?

A: I was going to get money. That is what I went for. I expected him to be [a]sleep and then I probably would have just went ahead and took the money and left back out.

At trial, Sergeant Frederick D'Ascentis testified to what Sample said in his statement, including that Sample

went inside, thinking that Mr. Durham would be asleep, went in to go and get more money to purchase crack. When he entered the apartment, he stated that Mr. Durham was awake, to his surprise. A verbal confrontation ensu[]ed. He, Mr. Durham[,] went into the bedroom and at that time Mr. Sample went into the kitchen, took a ten-inch knife with a black handle off of the counter, out of the drain, and went into the bedroom where Mr. Durham was sitting on the bed watching TV, and stabbed him in the left side of his back.

Based on the testimony of Sergeant D'Ascentis and defendant's statement to police, a jury charge on theft as a lesser-included offense of robbery was not clearly indicated, and trial counsel was not ineffective for failing to request the charge.

As for Sample's contention that trial counsel should have requested, and the court should have given, a jury charge on reckless manslaughter as a lesser-included offense of murder, there is no evidence in the record to support such a charge, notwithstanding that the trial judge did charge the jury with the lesser included offense of aggravated manslaughter.

Aggravated manslaughter occurs when the actor recklessly causes death under circumstances manifesting extreme indifference to human life. N.J.S.A. 2C:11-4(a)(1). "In assessing whether a defendant has manifested an extreme indifference to human life, the focus is not the defendant's state of mind, but on the circumstances under which the defendant acted." State v. Wilder, 193 N.J. 398, 409 (2008) (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2007)). The difference between aggravated manslaughter and reckless manslaughter is in the degree of risk that death will result from the defendant's actions a mere possibility (reckless manslaughter) or a probability (aggravated manslaughter). State v. Curtis, 195 N.J. Super. 354, 364 (1984).

Given that Sample was aware of Durham's numerous health issues and the fact that he used a ten inch kitchen knife to stab Durham in the side, the trial record could not support a reasonable jury finding that death was only a mere possibility, as required for reckless manslaughter. Thus, there was no basis for the charge and trial counsel was not ineffective for not requesting it.

Sample further argues that trial counsel was ineffective for not pursuing a diminished capacity defense in light of the report of Dr. Robert L. Sadoff, M.D., and that the PCR court erred in finding that defendant was not prejudiced by trial counsel's failure to present the expert opinion evidence. We do not agree.

Because "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant[,]" State v. Echols, 199 N.J.344, 358 (2009), "a heavy measure of deference [is applied] to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The PCR court rejected Sample's argument because the decision to forego a diminished capacity defense was sound trial strategy, and, relying upon State v. Kotter, 271 N.J. Super. 214 (1994), "voluntary intoxication does not give rise to a diminished capacity defense." We agree with the latter determination because Dr. Sadoff's report, at most, painted a portrait of Sample as a "man who has been addicted to alcohol since age 12 and to crack cocaine since 1990." Dr. Sadoff opined that Sample "was not legally insane at the time of the stabbing of his roommate, since he knew what he was doing and knew that it was wrong. However, he lacked substantial capacity to control his behavior because of the intoxication with cocaine and alcohol." Furthermore, the

stabbing of Mr. Durham . . . occurred primarily as a result of Mr. Sample's addiction, his state of intoxication, both from the crack cocaine and from the alcohol, that his control system was diminished to the point that he did not control his behavior when he came home at about 4:00 a.m. and became angry and frustrated at his roommate.

Sample cites no other evidence that his substance abuse would have lowered his culpability from purposeful or knowing conduct to recklessness. Thus, a diminished capacity defense was not warranted, only an intoxication defense was called for, and the trial court gave an intoxication instruction to the jury. Hence, Sample cannot demonstrate that trial counsel's conduct prejudiced him and that there was a reasonable probability that the result of the proceeding would have been different.

We lastly address the claim that Sample's appellate counsel was ineffective because she failed to raise multiple arguments on appeal. Sample posits that because his direct appellate contentions were limited to "challenges [to] his confession, sentence, and the State's proof of causation," Sample, supra, slip op. at 4, "it is clear that appellate counsel's efforts do not meet a standard of objective reasonableness." However, Sample does not establish, as required, that appellate counsel's decisions amounted to more than mere tactical strategy on appeal. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

The Strickland/Fritzparadigm applies to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J.444 (2008). An appellate attorney is not required to advance every argument a defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983). Here, our independent canvass of the record convinces us that the contentions Sample now advances as reasonable appellate arguments would not have affected the outcome of the direct appeal. Accordingly, Sample cannot satisfy the prejudice prong of the Strickland/Fritz standard vis- -vis appellate counsel.

Affirmed.