STATE OF NEW JERSEY v. ROBERT V. MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT V. MILLER,

Defendant-Appellant.

_____________________________

December 19, 2016

Submitted October 11, 2016 Decided

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 90-03-0198.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Robert Miller appeals from a January 6, 2015 Law Division order denying his post-conviction relief (PCR) petition without an evidentiary hearing. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We discussed the underlying facts of the case at length in our opinion affirming defendant's conviction and sentence on direct appeal. State v. Miller, No. A-4138-92 (App. Div. Feb. 24, 1995), certif. denied, 140 N.J. 392 (1995). We briefly restate the facts relevant to this appeal.

Defendant and Deborah Appleton were co-workers who became involved in a romantic relationship. After the relationship ended, defendant was fired from his job because he threw a cup of coffee in Appleton's face and beat her during an incident at work. A few days after the coffee incident, defendant voluntarily admitted himself to a psychiatric hospital. He was hospitalized for two weeks and released, but continued outpatient treatment.

Five months later, defendant saw Appleton and her daughter as they walked towards the entrance of a store. He accelerated his car, drove it toward Appleton and her daughter, and struck them. Defendant exited his car, saw that Appleton was still alive, and returned to his car to retrieve a butcher knife. Defendant stabbed Appleton eight times, causing her death. Defendant placed his hands in the air, and said, "I know what I did and I'm not going anywhere" and "I snapped, I didn't mean to do it. I'm sorry."

Defendant was charged in an indictment with murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three).

At defendant's jury trial, he did not dispute that he killed Appleton but claimed he was temporarily insane or had a diminished capacity. Defendant argued he "blacked out" during the coffee incident, on an unrelated occasion, and when he killed Appleton. Defendant presented the testimony of Dr. Michael D'Anton, a psychologist, who diagnosed defendant with "a bipolar disorder with mood congruent psychotic features" and opined that defendant "went into a psychotic rage," "did not know the nature and quality of the act that he was doing," and "did not act knowingly and purposeful[ly]." The State presented Dr. Steven Simring, a psychiatrist, who testified defendant did not suffer from psychosis, and that defendant had the mental capacity to understand the nature and quality of his actions.

The jury found defendant guilty of murder, possession of a weapon for an unlawful purpose, and a lesser included charge of simple assault, N.J.S.A. 2C:12-1(a). He was sentenced to life imprisonment with a thirty-year period of parole ineligibility on the murder conviction.1 He was sentenced to a consecutive six-month sentence on the simple assault conviction.

Defendant appealed. We affirmed his conviction and sentence but reduced defendant's Violent Crimes Compensation Board penalty. Miller, supra, slip op. at 12. Defendant's petition for certification was denied. Miller, supra, 140 N.J. at 392.

Defendant filed a PCR petition in 1998. The petition, however, languished until 2013 when defendant was assigned new counsel.2 In August 2014, defendant's counsel filed a brief in support of the PCR petition. Defendant also filed a pro se brief. Defendant's counsel made the following arguments

POINT I

THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISION OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE.

POINT III

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV

THE CUMULATIVE ERRORS OF TRIAL COUNSEL DENIED PETITIONER A FAIR TRIAL.

POINT V

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING.

POINT VI

PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HIS PETITION.

In his pro se brief filed with the PCR court, defendant argued

Point 1

THE COURT'S INSTRUCTIONS TO THE JURY ON THE ISSUE OF DIMINISHED CAPACITY WERE IN ERROR AND SHIFTED THE BURDEN OF PROOF TO THE PETITIONER, DEPRIVING HIM OF DUE PROCESS OF LAW AND A FAIR TRIAL IN VIOLATION OF HIS SIXTH AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

Point 2

AFTER EXTENSIVE EVIDENCE BY THE PROSECUTOR ASKING THE JURY TO INFER AN ENRAGED STATE OF MIND AT THE MOMENT OF THE OFFENSE THE PETITIONER WAS ENTITLED TO A JURY CHARGE ON "PASSION/PROVOCATION." FAILURE TO CHARGE SUCH REMOVED THE STATE'S BURDEN OF PROVING EVERY ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT. THIS FAILURE DEPRIVED THE PETITIONER OF DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMEND. VI and XIV). (Not Raised Below)[.]

Point 3

THE PREVIOUSLY EXEMPLARY CHARACTER OF THE PETITIONER WOULD HAVE HAD A CLEAR AND CONVINCING EFFECT UPON THE JURY CREATING A REASONABLE DOUBT OF HIS ABILITY TO FORM THE REQUISITE STATE OF MIND TO COMMIT THE OFFENSE. THE COURT SEVERELY LIMITED THE TESTIMONY OF CHARACTER WITNESSES AND BLOCKED THE INTRODUCTION OF RELEVANT PHYSICAL EVIDENCE DEPRIVING THE PETITIONER OF DUE PROCESS OF LAW AND FAIR TRIAL. (U.S. CONST. AMEND. VI and XIV).

Point 4

THE DEFENDANT WAS COERCED INTO TAKING THE STAND IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

Point 5

THE COURT LIMITED TESTIMONY FROM THE DEFENSE PSYCHOLOGIST AND STRUCK AT THE VERY HEART OF THE INSANITY/DIMINISHED CAPACITY DEFENSE. THIS ERROR ABOLISHED THE ADVERSARIAL PROCESS AND INFRINGED ON PETITIONER'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.

Point 6

THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN A MULTITUDE OF WAYS IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS AS EXPLAINED IN STRICKLAND V. WASHINGTON AND EMBODIED IN NEW JERSEY UNDER STATE V. FRITZ. (U.S. CONST. AMEND. VI and XIV)[.]

A). Trial Counsel Failed To Assist Defense Psychologist In The Preparation Of His Report To Conform To The Language Of The Relevant Statues And To Embody All Theories Of The Case Upon Which Counsel Intended To Question The Psychologist.

B). Trial Counsel Was Woefully Unprepared To Try The Case[.]

C). Trial Counsel Failed To Familiarize Himself Sufficiently With The Basic Rules Of Evidence Governing Character Witnesses And Relevancy And Failed To Brief The Trial Judge On Vital Issues Even After Being Invited To Do So And Being Afforded A Week's Delay In The Trial.

D). Trial Counsel Allowed Reams Of Hearsay Evidence Unfavorable To The Petitioner To Go Before The Jury Without Objection.

E). Trial Counsel Did Not Sufficiently Review Diary And Petitioner-Provided Outlines To Effectively Examine/Cross-Examine Witnesses.

F). Trial Counsel Put Petitioner On The Stand Against His Will And Against Legal Wisdom. Petitioner Had Claimed A Blackout During The Time Of The Offense And Hence Had Little Probative Evidence To Offer About The Most Critical Moments. Further, Trial Counsel Exposed A Mentally Ill, Emotional Witness To Grueling Cross-Examination And Ridicule For No Clear Strategic Benefits.

G). Prior Counsel Failed To File The Necessary Motions To Obtain A Speedy Trial. Petitioner Spent 37 Months In The County Jail.

H). Prior Counsel Failed To Get An Independent Psychiatric Expert In Violation Of AKE V. OKLAHOMA And Petitioner's Rights To A Fair Trial. Prior Counsel Failed To Properly Move For Examination Of The Petitioner At Fair Oaks Hospital Mere Days After The Offense Despite Offer By Petitioner's Family To Pay For 14-Day Evaluation. Prior Counsel Also Failed To Move For Tests Which Would Have Clearly Established Organic Evidence Of Petitioner's Bipolar Disorder. These Omissions Show Failure Of Prior Counsel To Inquire Thoroughly Into The Primary Exculpatory Evidence And Theory Of The Case. Due To These Omissions Trial Counsel Was Forced To Qualify Petitioner's Privately Retained And Then Privately Paid Treatment Psychologist As An Expert In Order To Avoid Court Sanctions Against The Insanity Defense.

I). The Prosecution Theory Of The Case Has The Petitioner Hitting The Victim With His Car, Getting Out And Taking Her Pulse, Returning To The Car To Get A Knife, And Returning To The Victim To Stab Her To Death. 17 People Witnessed The Instant Offense And Police Reports Reveal Only ONE Relating The "Pulse Taking" Story. Trial Counsel Was Vastly And Prejudicially Ineffective For His Failure To Investigate The Remaining 16 Witnesses And To Effectively Exam And Cross-Examine Such Witnesses. Trial Counsel Could Have Shown A Very High Probability Inference That In Reality The Petitioner Hit The Victim, Got Out Of The Car WITH The Knife, Never Took A Pulse, And Stabbed Her In A Single Fluid Psychotic Episode. The "Pulse Taking" Story Was Devastating To The Insanity/Diminished Capacity Defense And Almost Certainly Never Happened.

J). During The Petitioner's Testimony The Prosecutor Asked Him To Hold A Stapler As He Had A Knife During A Suicide Attempt Stating "I Prefer Not To Give You The Knife, So I'll Ask You To Hold This (A Stapler)" (4T 142- 23 And 24). All The Jurors Smiled And Several Laughed Outright. Trial Counsel Should Have Objected To This Abuse of The State's Authority And Asked For An Immediate Instruction To The Jury And Sanction Against The Prosecutor.

K). Trial Counsel Did Not Poll Jury After Verdict Despite The Fact That One Juror Was Clearly In Tears And May Have Been Coerced Into Her Decision.

L). The Cumulative Effect Of All These Errors/Deficiencies Violated The Petitioner's Right To Effective Assistance Of Counsel. (U.S. CONST. AMEND. VI And XIV).

Point 7

THIS PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. THE ISSUES RAISED WERE WELL RESEARCHED AND WELL-BREIFED, BUT APPELLATE COUNSEL FAILED TO RAISE CERTAIN REVERSIBLE TRIAL ERRORS ON DIRECT APPEAL DEPRIVING PETITIONER OF EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND. VI AND XIV).

Point 8

THE PETITIONER'S 37 MONTHS IN THE COUNTY JAIL WAS MANIFESTLY A DENIAL OF HIS RIGHT TO A SPEEDY TRIAL GUARANTEED BY THE SIXTH AMENDMENT AND HIS RIGHT TO DUE PROCESS EMBODIED IN THE FOURTEENTH AMENDMENT.

Point 9

THE RAMBLING SEMI-MONOLOGUE OF THE PROSECUTOR'S PSYCHIATRIST INTRODUCED NEARLY TWO HOURS OF WHOLESALE CHARACTER ASSASSINATION AND IRRELEVANT HEARSAY EVIDENCE AGAINST THE PETITIONER IN VIOLATION OF STATE EVIDENCE RULES FOR EXPERT WITNESSES AND IN MANIFEST VIOLATION OF SIXTH AMENDMENT CONFRONTATION RIGHTS.

Point 10

THE PROSECUTOR'S IMPROPER TRIAL TECHNIQUES ROSE TO THE LEVEL OF PROSECUTORIAL MISCONDUCT AND DENIED THE PETITIONER DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMEND. VI and XIV).

A). THE PROSECUTION'S THEORY OF THE ACTUAL OFFENSE IS SO FAR REMOVED FROM A REASONABLE INFERENCE FROM THE FACTS THAT IT BORDERS ON PERJURY AND CERTAINLY CONSTITUTES PROSECUTORIAL MISCONDUCT. THE PROSECUTION HAS THE PETITIONER HITTING THE VICTIM WITH HIS CAR, GETTING OUT AND TAKING HER PULSE, RETURNING TO THE CAR TO GET A KNIFE, AND RETURNING TO THE VICTIM TO STAB HER TO DEATH. POLICE REPORTS RECORD 17 PEOPLE WITNESSING THE OFFENSE AND ONLY ONE RELATING THE "PULSE TAKING" STORY.

IT IS A VERY . . . HIGH PROBABILITY INFERENCE THAT IN REALITY THE PETITIONER HIT THE VICTIM, GOT OUT OF THE CAR WITH THE KNIFE, NEVER TOOK A PULSE, AND STABBED HER IN A SINGLE FLUID PSYCHOTIC EPISODE. THE "PULSE TAKING" FABLE WAS DEVASTATING TO THE INSANITY/DIMINISHED CAPACITY DEFENSE AND ALMOST CERTAINLY NEVER HAPPENED. PETITIONER WAS DENIED ANY RIGHT TO A FAIR TRIAL AND DUE PROCESS BY THIS MISCONDUCT. (U.S. CONST. AMEND VI AND XIV).

Point 11

THE JUDICIAL ABUSE OF DISCRETION IN NUMEROUS RULINGS AND PROSECUTORIAL MISCONDUCT (SUPRA.) COMBINED TO DEFEAT THE ADVERSARIAL PROCESS AND RESULTED IN AN UNFAIR TRIAL AND A FAILURE OF DUE PROCESS. (U.S. CONST. AMEND. VI AND XIV).

Point 12

 
THE . . . DEFENDANT SUFFERS FROM A BIPOLAR DISORDER (MANIC/DEPRESSION) WHICH IS CONTROLLED BY MEDICATION. THE JURY SHOULD HAVE BEEN GIVEN LIMITING INSTRUCTIONS ON THE EFFECT OF THE DISORDER AND THE MEDICATION ON THE DEMEANOR OF THE PETITIONER IN THE COURT ROOM AND ON THE WITNESS STAND. THE JURY WAS UNABLE TO ADEQUATELY ASSESS THE CREDIBILITY OF THE PETITIONER DUE TO THE DISORDER AND THE MEDICATION USED TO TREAT IT AND ITS INFLUENCE ON THE DEMEANOR, VOICE, HAND TREMORS, "BODY LANGUAGE", AND THE OTHER UNTANGIBLES [sic] WHICH INFLUENCE THE JUDGMENT OF CREDIBILITY. THIS OMISSION DEPRIVED THE PETITIONER OF DUE PROCESS OF LAW AND A FAIR TRIAL IN VIOLATION OF HIS SIXTH AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AS WELL AS ADDING TO THE EXISTING ABUSE OF HIS FIFTH AMENDMENT RIGHT (POINT 4 SUPRA.). (Not Raised Below)[.]

Point 13

WHILE PETITIONER IS CONSTITUIONALLY GUARANTEED A FAIR TRIAL AND NOT A PERFECT ONE THE CUMULATION OF ERRORS IN THIS TRIAL WENT FAR BEYOND ANY ACCEPTABLE STANDARD. DUE TO THE CUMULATION OF ERRORS THE PETITIONER WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMEND. VI AND XIV).

Point 14

THE PRESENTENCE REPORT IS FLAWED AND WAS GIVEN TO HIM 20 MINUTES BEFORE SENTENCING. THE PETITIONER WAS NEVER PRESENTED WITH THE OPPORTUNITY TO INTRODUCE HIS OWN STATEMENT INTO THE REPORT OR ADEQUATELY REVIEW IT AS REQUIRED BY STATE V. KUNZ, 55 [N.J.] 128.

The State filed a brief opposing defendant's petition and Judge Robert J. Gilson heard oral argument on December 1, 2014. On January 6, 2015, Judge Gilson issued an extensive and detailed twenty-eight-page written decision addressing defendant's arguments, rejecting defendant's request for an evidentiary hearing, and denying defendant's PCR petition.

Judge Gilson first found that each of defendant's claims concerning alleged errors by the trial court were barred under Rule 3:22-4(a) because the alleged errors were raised on direct appeal or were known to defendant at the time of the direct appeal but were not raised. He further found that defendant did not demonstrate that any of the exceptions to the Rule 3:22-4 procedural bar applied to defendant's claims. R. 3:22-4(a)(1)-(3).

Although Judge Gilson found defendant's trial error claims were barred under Rule 3:22-4, he also addressed the substantive merits of defendant's claims that he was deprived of a fair trial. Judge Gilson rejected defendant's contentions that the trial court gave an erroneous diminished capacity jury instruction, erred in limiting defendant's expert's testimony and the testimony of defendant's character witnesses, and incorrectly failed to give a passion/provocation instruction to the jury. Judge Gilson also rejected defendant's claims that he was coerced into testifying at trial, his right to a speedy trial was violated, the testimony of the State's expert was unduly prejudicial, the prosecutor introduced false testimony at trial, and there were errors in his presentence investigation report.

Judge Gilson also considered defendant's assertion that his trial and appellate counsel were ineffective, and applied the well-settled two-pronged test for assessing ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). Judge Gilson found defendant failed to satisfy his burden under the Strickland standard because he did not demonstrate that but for any of his trial or appellate counsels' purported errors, there is a reasonable probability that the result of the trial and appeal would have been different.3

Judge Gilson rejected defendant's request for an evidentiary hearing, finding defendant failed to make a prima facie showing of ineffective assistance of counsel under the Strickland standard. Judge Gilson entered an order denying defendant's PCR petition without an evidentiary hearing. This appeal followed.

On appeal, defendant raises the following arguments

point ONE

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL[.]

POINT TWO

THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING[.]

Defendant further raises the following two points in a pro se brief

POINT I

THIS COURT WILL BE SEVERELY HANDICAPPED IN ITS VITAL FUNCTIONS IF IT FAILS TO REVIEW AND TAKE INTO CONSIDERATION THE PROSEPOST-CONVICTION RELIEF BRIEF FILED BY THE DEFENDANT-APPELLANT IN THE FALL OF 2014. THIS DOCUMENT IS NOT INCLUDED IN THE CURRENT MOVING PAPERS.

POINT II

THE TRIAL COURT'S EXCESSIVE AND IMPROPER APPLICATION OF PROCEDURAL BARS HAS DECIMATED THIS APPELLANT'S CONSTITUTIONAL STANDING. SACRED CONSTITUTIONAL PROTECTIONS HAVE BEEN STRIPPED AWAY THROUGH LEGAL MISINTERPRETATION AND IN THE SERVICE OF BUREAUCRATIC CONVENIENCE.

II.

We review a PCR court's interpretation of the law de novo. State v. Nash, 212 N.J. 518, 540-41 (2013). Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." State v. Harris, 181 N.J. 391, 421 (2004) (alteration omitted), cert. denied, 545 U.S. 1145, 125 S. Ct 2973, 162 L. Ed. 2d 898 (2005).

Based on our review of the record, and substantially for the reasons set forth in Judge Gilson's well-reasoned written opinion, we are satisfied the PCR court correctly determined defendant's claims he was denied a fair trial were procedurally barred under Rule 3:22-4, his substantive claims he was denied a fair trial are without merit, and he failed to establish a prima facie case of ineffective assistance of his trial and appellate counsel under the Strickland standard. The PCR court therefore correctly concluded defendant was not entitled to an evidentiary hearing. See State v. Porter, 216 N.J. 343, 354 (2013) (finding an evidentiary hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required). Defendant's arguments to the contrary are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Defendant asserts that our review of the PCR court's decision required consideration of the lengthy and comprehensive brief he filed with the PCR court. Although briefs submitted to the trial court are generally not part of the record on appeal, R. 2:6-1(a)(2), we obtained, reviewed, and considered defendant's brief to the PCR court on this appeal.

Affirmed.

1 The court merged defendant's conviction for possession of a weapon for an unlawful purpose with his murder conviction.

2 The record does not disclose the reason for the delay in the disposition of the PCR petition. Following the filing of the petition, however, defendant was assigned counsel on at least two occasions prior to the assignment of new counsel in 2013 who filed the brief on defendant's behalf and argued the case before the PCR court.

3 Although the PCR court did not expressly address each of the alleged errors of counsel argued in defendant's pro se brief, based on our de novo review of the record we are satisfied defendant failed to demonstrate that but for the purported errors, or their cumulative effect, there is a reasonable probability the results of the trial and appeal would have been different "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.