Opinion
DOCKET NO. A-5875-12T1
12-24-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAKEEM GARTRELL, a/k/a AAKEEM GARTRELL, a/k/a RAHKEEM GARTRELL, a/k/a RAKEEM S. GARTRELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3591. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rakeem Gartrell appeals from the denial, without a testimonial hearing, of his petition for post-conviction relief. Defendant collaterally challenges his September 16, 2010, conviction, after a guilty plea, to three counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1), -3(a)(2), and related weapons offenses. Defendant admitted he stabbed to death his girlfriend and her two parents. He received concurrent thirty-seven-year terms, subject to the parole ineligibility and parole supervision periods required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant contends he received ineffective assistance of trial and appellate counsel. Having considered defendant's arguments in light of the record and applicable principles of law, we affirm.
I.
We discern the following facts from the sparse record before us. The triple-homicide occurred on February 13, 2008. Defendant stated in his allocution that, at the time, he lived with his girlfriend and her parents in their Irvington home. He stated that before the homicides, he had used marijuana and crystal meth, and consumed alcohol. He stated he woke up in the morning and discovered the bodies of the three victims. Although he allegedly could not recall killing them, he concluded that he had done so. He was covered in blood.
Defendant then went to his uncle's house, where he told his sister that he had killed the three victims. According to the presentence report (PSR), his sister advised defendant to turn himself in to police. He agreed, and she accompanied him to the police station. He entered the police station and told the officer he was wanted for a homicide. The police at that point were unaware of the homicides. But, based on information received from defendant, officers went to the home and discovered the bodies of the three victims. Each suffered multiple stab wounds by the use of multiple knives, some of which were left in their bodies.
Defendant gave a videotaped statement after receiving a Miranda warning. According to the transcript of his statement, defendant said that after spending the night at his girlfriend's house, he and she became involved in an argument. At some point, he "snapped out" and "felt like rage at something going on." He also claimed to hear voices, and have "[s]uicidal and homicidal thoughts, like hurting myself, though, not really trying to hurt nobody, like voices in my head." He retrieved a knife or knives, returned to the bedroom and began to stab his girlfriend. When her parents intervened, he stabbed them as well. He demonstrated to the police how he struck his victims. After he killed the three, he changed his clothes, and then went to his uncle's house.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant had a history of domestic violence against his girlfriend. She had obtained a final restraining order against him. Defendant and his girlfriend had a daughter, who was in the custody of the Division of Youth and Family Services.
In view of his claim of hearing voices, defendant was sent to the Ann Klein Forensic Center (AKFC) the next day. He was discharged in June 2008 with the following diagnosis: Axis I, adjustment disorder with disturbance in mood and conduct; history of alcohol and cannabis abuse; Axis II, antisocial personality disorder; Axis III, seizures by history; and Axis IV, limited support system and severe charges.
The record reflects that defense counsel reportedly obtained a psychiatric evaluation of defendant to determine the viability of an insanity defense. The evaluation is not included in the record. However, the psychiatrist reportedly concluded that the insanity defense was not viable, notwithstanding that defendant suffered from mental illness.
Defendant was indicted in December 2008 and charged with three counts of first-degree murder, as well as fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). At his August 5, 2010, plea hearing, defendant claimed not to recall killing his girlfriend and her parents. However, he stated that he believed he had killed them. He reached that conclusion after he awoke in the house, covered in blood, in the presence of the three victims. Defendant confirmed that he turned himself in and gave a statement to police. He said "most of it" was true, but did not elaborate.
At the sentencing hearing, the court and defense counsel addressed the fact that defendant had written letters to counsel and the court expressing a desire to withdraw his plea. However, defense counsel stated that defendant had later decided to proceed with the plea. Counsel noted that he retained "the services of experts" and noted the psychiatric evaluation that concluded defendant's "mental illnesses did not rise to the level of insanity as it is legally defined under our criminal code." Defense counsel also referred to the AKFC report.
Defendant filed a direct appeal. As the issues on appeal related solely to the sentence imposed, the appeal was considered on the Excessive Sentence Oral Argument calendar. We affirmed defendant's sentence. State v. Gartrell, No. A-4896-10 (App. Div. Nov. 16, 2011).
Defendant timely filed his PCR petition in April 2012. He presented four points in his pro se petition:
POINT I
DEFENDANT'S WAIVER OF MIRANDA WAS NEITHER KNOWING NOR VOLUNTARY AS DEFENDANT SUFFERED FROM A DOCUMENTED MENTAL ILLNESS AT THE TIME HE GAVE AN INCRIMINATING STATEMENT TO POLICE.
POINT II
TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO PURSUE A DIMINISHED CAPACITY DEFENSE.
POINT III
DEFENDANT'S ENTRY INTO A PLEA AGREEMENT WAS NEITHER KNOWING NOR VOLUNTARY WHEN COUNSEL FAILED TO INFORM DEFENDANT HE COULD HAVE PURSUED A DIMINISHED CAPACITY DEFENSE.
POINT IV
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ABOVE ISSUES AS CONTAINED WITHIN THE TRIAL COURT RECORD.
Once appointed counsel, defendant filed a supplemental petition in which he reiterated and amplified his initial points:
POINT I. THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE HE WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS PETITION FOR POST-CONVICTION RELIEF AND IN THE ALTERNATIVE BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAS BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THE ISSUE.
a. Trial Counsel Was Ineffective in not Moving to Suppress Defendant's Statement and All "Fruit of the
Poisonous Tree" Evidence that flowed from Such Statement as Waiver of Miranda was Neither Knowing nor Voluntary as Defendant was Incapable of Such as Defendant Suffered from Documented Mental Illness and was Under the Influence of Drugs and Alcohol.
b. Trial Counsel was Ineffective in Failing to Pursue a Diminished Capacity Defense.
c. Trial Counsel was Ineffective in Failing to Discuss with Defendant a Diminished Capacity Defense and the Possibility of Challenging Defendant's Statement and all Evidence that Flowed from the Statement thus Rendering Defendant's Plea Neither Knowing nor Voluntary.
d. Cumulative Errors by Counsel Amounted to Ineffective Assistance of Counsel and the Denial of a Fair Trial.
POINT II: INEFFECTIVE APPELLATE COUNSEL.
a. Failure by Appellate Counsel to raise any of the above Issues on Direct Appeal.
After oral argument, Judge Peter J. Vazquez denied the petition in a written opinion issued February 1, 2013. The judge applied the well-settled two-pronged test for assessing claims of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (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 Vazquez rejected the claim that defense counsel was ineffective in failing to pursue a Miranda motion, because defendant had failed to present a sufficient showing that such a motion would have been successful. He noted that although defendant claimed he was under the influence of drugs, alcohol, and mental illness when he gave his statement, his statements to police were clear and concise. Moreover, belying the claim that he lacked the capacity to waive his rights, defendant demonstrated the presence of mind to change out of his blood-stained clothes, go to his sister's house, tell her what he had done, and then decide to turn himself in.
Judge Vazquez also found no merit to the contention that defense counsel ineffectively failed to pursue a diminished capacity defense. He noted that the record demonstrated that defense counsel considered defendant's mental state. He reviewed the AKFC report, and obtained a separate psychiatric evaluation. He concluded that an insanity defense was not viable. Distinguishing between an insanity defense and a diminished capacity defense, Judge Vazquez stated, "Even if plea counsel was deficient for failing to put the issue of diminished capacity on the record, defendant has not made a colorable claim of prejudice." The court concluded that defendant relied on "bare assertions" of prejudice. Defendant's detailed statement to police belied a potential claim of diminished capacity.
The court also rejected the claim that defense counsel was ineffective by failing to discuss diminished capacity or insanity defenses. The court reviewed defendant's affirmations in his plea hearing, that his plea was voluntary, and he understood the consequences of his plea. Finally the court found no merit to the claim appellate counsel was ineffective, noting that defendant had failed to demonstrate appellate counsel's performance was deficient or caused prejudice.
On appeal, defendant presents the following points for our review:
POINT I -THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT II -THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III -TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO SUPPRESS DEFENDANT'S STATEMENT AND ALL EVIDENCE THAT FLOWED FROM THE STATEMENT.
POINT IV -APPELLATE COUNSEL WAS INEFFECTIVE.
II.
We affirm substantially for the reasons set forth in Judge Vazquez's written opinion. We add the following brief comments.
It is well settled that a defendant is entitled to effective assistance in the process of a plea negotiation. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012). A petitioner may satisfy the prejudice prong in a challenge to a conviction arising from a plea, by showing "a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. Gaitan, 209 N.J. 339, 351 (2012) (same), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Although defendant asserted that his counsel provided ineffective assistance in pursuing a diminished capacity defense and a Miranda motion, defendant failed to assert that he would have insisted on going to trial but for counsel's errors. Consequently, he failed to present an essential claim of prejudice. See State v. Johnson, 182 N.J. 232, 244 (2005) (stating that a "defendant must demonstrate how the omission of information . . . materially affected his decision to plead guilty").
Defendant's argument that his counsel ineffectively failed to pursue a diminished capacity defense also lacked merit because it was unsupported by competent evidence that such a defense was available. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "Thus, when 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). A petitioner may not rely on "bald assertions." Ibid. Yet, that is what defendant has done. His failure to provide any expert opinion that he suffered from diminished capacity is fatal to his claim of ineffective assistance in counsel's preparation.
Lastly, defendant simply incorporates by reference his trial court PCR brief, in support of his claims that plea counsel ineffectively failed to file a Miranda motion, and appellate counsel was ineffective as well. We note that the incorporation by reference of a trial brief is improper. We appreciate the time-pressures on appellate attorneys and recognize that this method of presentation saves time. We also intend no personal criticism of the author. However, the filing gives us the opportunity to reiterate the requirements of our rules.
The rule governing an appellant's or respondent's brief implicitly requires that the legal argument be wholly contained within the brief. See R. 2:6-2(a)(5); R. 2:6-4(a). Cf. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (noting that an incorporation by reference to oral argument presented to the trial court is a "cavalier instruction to the court . . . [and] is not a brief").
Like our rules, Fed.R.App.P. 28(a) does not expressly prohibit incorporation by reference, but federal courts have also deemed the practice improper, and a violation of the rule. See Sandgathe v. Maass, 314 F.3d 371, 380 n.8 (9th Cir. 2002); R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 47-48 n.6 (1st Cir. 2002); Cray Commc'ns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n.6 (4th Cir. 1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1254, 131 L. Ed. 2d 135 (1995); Prudential Ins. Co. v. Sipula, 776 F.2d 157, 161 n.1 (7th Cir. 1985).
Incorporation by reference of a trial brief is also at odds with Rule 2:6-1(a), which generally prohibits inclusion of trial court briefs in an appellate appendix. Defendant's utilization of his trial court brief here also indirectly violates the rules governing type and spacing, Rule 2:6-10; and the requirement of a table of contents. R. 2:6-2.
Incorporating a trial court brief burdens the appellate court and the opposing party, who must attempt to discern the extent to which the trial brief is still relevant to the issues on appeal.
Disregard of the rules makes our task more time-consuming, but that is not the chief reason for the rules. Analyzing a brief which is not laid out according to the rules is like traveling an unmarked road in strange territory. We may reach our destination in spite of the hardship, but we may lose our way.We may suppress such a brief, or direct the filing of a conforming brief, in addition to imposing costs. R. 2:6-9. See Miller v. Reis, 189 N.J. Super. 437, 445 (App. Div. 1983).
[United Bd. & Carton Corp. v. Britting, 61 N.J. Super. 340, 343 (App. Div.), certif. denied, 33 N.J. 326 (1960).]
Notwithstanding the foregoing comments, we have considered the substance of defendant's arguments and find they lack merit. In addition to the reasons set forth by Judge Vazquez, we note that when a petitioner complains his counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his . . . claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998) (addressing suppression motion under Fourth Amendment); see also State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not ineffective assistance of counsel for defense counsel not to file a meritless motion.").
Defendant failed to establish that a Miranda motion would have been meritorious. We note that although defendant claimed he was under the influence of drugs and alcohol when he committed the murders, he also stated that he fell asleep thereafter and woke up sometime later. There was no evidence that he was still under the influence. Moreover, as Judge Vazquez noted, his actions thereafter, in changing his clothes, going to his uncle's house, and then turning himself in, demonstrated that he was capable of acting knowingly and voluntarily.
We note that defendant failed to provide us with the videotape of his Mirandized confession, which would have enhanced our ability to consider whether he appeared to be influenced by drugs, alcohol, or mental illness. See R. 2:6-1(a)(1) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues"); see also Cmty. Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are we obliged to attempt review of an issue when the relevant portions of the record are not included.")
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To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION