STATE OF NEW JERSEY v. CURTIS SMITHAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
May 1, 2015
Submitted March 17, 2015 Decided
Before Judges Haas and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 80-0204.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Defendant, Curtis Smith, appeals from the denial of his third petition for post-conviction relief (PCR) in connection with a horrific kidnapping, torture, and murder of a young woman in Cape May County, on December 4, 1980. In this appeal, defendant raises the following arguments
THE PCR COURT ERRED WHEN IT RULED THAT IT WAS BOUND BY A PRIOR DECISION BY THE APPELLATE DIVISION THAT REVIEWED THE FINAL AGENCY DECISION BY THE NEW JERSEY PAROLE BOARD TO DENY DEFENDANT PAROLE.
THE PCR COURT ERRED BY NOT RETROACTIVELY APPLYING STATE V. MOORE, AND THEREFORE NOT ALLOWING DEFENDANT TO WITHDRAW HIS GUILTY PLEA, BECAUSE THE GUILTY PLEA WAS INDUCED BY THE TRIAL COURT'S RULING THAT IT WOULD ALLOW HYPNOTICALLY REFRESHED TESTIMONY TO BE INTRODUCTED AT DEFENDANT'S TRIAL.
In his pro se supplemental brief, defendant raises the following contention
APPELLANT-DEFENDANT IS SIMILARLY SITUTATED AS CLARENCE M. MOORE REQUIRING RESTROACTIVE APPLICATION OF THE NEW RULE OF LAW.
We reject these arguments and affirm.
The relevant facts are as follows. Defendant, in addition to his stepfather, uncle, mother, sister, and female friend of the family were charged with crimes in connection with this vicious assault and eventual murder. Approximately one month after the victim's murder, defendant's uncle, Jack A. Gaskill, confessed his involvement to the police. In a recorded statement, he described his role and the role of the others, including defendant. Gaskill described how he and defendant were drinking together in their apartment when the victim arrived. The other co-defendants arrived afterward. According to Gaskill, the victim, who had been in a relationship with defendant, was "spreading it around that Curt Smith had her pregnant[.]" The gathering that night was "to straighten it out."
In Gaskill's recorded statement, he described an argument followed by the victim trying to leave. He also described the victim being held against her will, forced to remove all of her clothes, forced to have oral sex twice with a dog, forced to sign over the title to her car, being hit by defendant because he was "pissed off," spray painted with black paint over her entire body, having her head shaved, and being kicked repeatedly.
When Gaskill was asked if anyone hit the victim so hard that she started to bleed, he stated that defendant, "got up and just started swinging wild and hit her inside the head and some blood trickled out the side of her head." Later, Gaskill described more blood and attempts to stop the bleeding with a towel. He also described how, after hours of abuse, the victim was assisted in putting on her clothes, and told she was being taken to the bus station.
Instead, however, Gaskill, defendant, and Leroy Camp, the defendant's stepfather, drove the victim in defendant's mother's car to a backwoods area near a gravel pit. Gaskill claimed he fell asleep on the way, and therefore did not recall exactly where they stopped. Nevertheless, he admitted that shovels were put in the car before they left the house, and that, although "it was not mentioned[,]" he had an idea they were going to kill her.
When they stopped the car, Gaskill said that defendant and Camp took the victim into the woods, out of his sight. When they returned to the car without the victim, Gaskill was told to help them dig a hole. Gaskill described the three of them, including defendant, digging what he believed to be a "grave hole." He then returned to the car and described hearing, but not seeing, the others dragging what he believed was the victim's body into the hole. On the way back home, no mention was made of the killing, except that defendant said, "I know that she won't fuck me over again," which elicited a response from Camp telling defendant to "shut up and forget about it."
In addition to the above, Gaskill described a conversation with defendant that took place the next night, where defendant told Gaskill he had blood all over his pants, and he guessed he would have to throw them out. At that time, defendant told Gaskill that he had "cut her throat." Gaskill's recorded statement was taken and signed on January 5, 1981.
The next day, the police took Gaskill to a psychologist who used hypnosis to attempt to obtain a clearer account of exactly where the body was buried. Under hypnosis, Gaskill repeated substantially the same account of the crime, but in a much shorter version, with additional descriptions of the route taken and the location of the murder and the grave. The police were subsequently able to locate and recover the victim's body.
All six individuals were indicted on multiple counts related to the sexual assault, kidnapping, robbery and murder of the victim. Prior to Camp's trial, all the defendants moved to suppress Gaskill's statement taken with the aid of hypnosis. Their motion was denied.
After a six week jury trial, Camp was found guilty of murder and multiple other crimes. Thereafter, the other co-defendants entered guilty pleas. The women defendants did not plead guilty to murder, but did admit to the violent assault on the victim. Eventually, defendant pled guilty to murder, kidnapping, sexual assault, and robbery, and was sentenced to a life term with twenty-five years of parole ineligibility.
At defendant's plea hearing, he gave a very long and detailed factual basis, describing his role in the murder. He admitted striking the victim so hard that she began to bleed, and added that he broke his knuckle on her head. In fact, he testified that he was the one who killed the victim, describing how he stabbed her and cut her throat three times. He also described how when they returned to drag the victim to her grave, she was making gurgling sounds and he stabbed her again in the chest before she was buried.
Defendant filed a direct appeal, and raised his objection to the admission of Gaskill's statement made during hypnosis. We rejected defendant's argument in an unpublished opinion. State v. Smith, No. A-3309-81 (App. Div. October 19, 1983). He filed two other state PCR petitions and two federal habeas corpus applications, all of which were denied.1 He was denied his first two applications for parole, and now must wait until 2016 to reapply. He has been incarcerated for almost thirty years.
In its latest decision denying defendant parole, the Parole Board relied in part on defendant's pre-sentence report, and the attached hypnotically induced statement of Gaskill. However, the Board primarily relied on other information, including defendant's own statements at his first parole hearing where he admitted the murder, and did not seem remorseful. Additionally, the Board noted that defendant still did not appear remorseful, he attacked the character of the victim, and he blamed his relatives for causing him to do the terrible things he had done to his former girlfriend.
Here, defendant claims that at the time he received his second parole denial, he first became aware of new law created by our Supreme Court's decision in State v. Moore, 188 N.J. 182 (2006), holding that hypnotically refreshed memory is scientifically unreliable and inadmissible in evidence. Such evidence had been admissible under certain guidelines at the time of his plea. Thus, defendant filed an appeal of the parole denial, and also filed this PCR petition.
We affirmed the Board's decision denying defendant's parole application in Smith v New Jersey State Parole Board, No. A-2536-11 (App. Div. May 14, 2013) (Slip op. at 4), holding
There is no record here that defendant challenged any of the facts contained in his presentence report, whether supplied by his uncle under hypnosis or from another source. His argument that the Parole Board improperly relied upon a hypnotically refreshed statement, therefore, lacks sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).
On June 18, 2013, Judge Patricia Wild heard argument and rendered an oral decision, denying defendant's PCR petition on that same issue. She found that his petition was not filed out of time. She then found that the language quoted above was the law of the case, and barred defendant's request for relief. She also held that even if it was not the law of the case, defendant's argument lacked merit because all of the important details of the crime were set forth in Gaskill's first statement before hypnosis was used. Additionally, other co-defendants confirmed the statements in their guilty pleas, and no one, including the defendant, has ever contested the truth or reliability of the key facts set forth in the first or second statement given by Gaskill.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Wild in her well-reasoned oral opinion.
1 See State v. Smith, No. A-2160-01 (App. Div. November 6, 2002), certif. denied, 175 N.J. 431 (2003); State v. Smith, No. A-0030-87 (App. Div. November 6, 1989).