DOCKET NO. A-1207-14T4
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel; Boris Moczula, Legal Assistant, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-01-0104. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel; Boris Moczula, Legal Assistant, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
At the conclusion of a jury trial, defendant was convicted, among other things, of the first-degree murder of his girlfriend. At trial, defendant did not dispute shooting and stabbing the victim; instead he chiefly defended by claiming insanity.
The judge imposed a lengthy prison sentence and defendant appealed, arguing, among other things, that the jury instructions regarding his insanity defense were insufficient. We agreed and reversed the conviction, State v. Singleton, 418 N.J. Super. 177, 180 (App. Div. 2011), but the Supreme Court granted certification, rejected defendant's contentions and reversed, State v. Singleton, 211 N.J. 157, 187 (2011). The Court also remanded to this court so we could decide those issues we deemed it unnecessary to previously consider because of our mistaken disposition of the insanity issues. Ibid. We rejected defendant's other arguments by way of an unpublished opinion, State v. Singleton, No. A-1782-08 (App. Div. 2012), and the Supreme Court denied defendant's petition for certification, State v. Singleton, 214 N.J. 119 (2013).
Defendant thereafter filed a timely post-conviction relief (PCR) petition in which he argued that his trial attorney was ineffective: for failing to call a female friend (J.F.) defendant had known since childhood to testify she had never heard that defendant was abusive of women; and by pursuing at trial a factual contention that the State's expert, Dr. Elliott Atkins, had improperly administered to defendant the Minnesota Multi-Phrase Personality Inventory test (MMPI). After hearing the argument of counsel, the PCR judge denied relief by way of a written opinion.
Defendant appeals, arguing through counsel, in a single point, that he:
IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT A COMPLETE DEFENSE.Defendant filed a pro se supplemental brief in which he argues the ineffectiveness of PCR counsel, specifically because PCR counsel failed to argue trial counsel was ineffective for failing to object: (1) to the State's expert being present in the courtroom in violation of a sequestration order; and (2) "to the State's expert witness['s] psychiatric or psychological examination of defendant." He also argues that his trial counsel was ineffective for the same reasons.
In invoking Rule 2:11-3(e)(2), we find insufficient merit in these arguments to warrant discussion in a written opinion, adding only the following brief comments regarding J.F. and the allegations about the MMPI test. In considering these arguments, the PCR court was required to consider whether counsel's performance fell below professional norms and whether there existed "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
We agree with the PCR judge that J.F.'s testimony would have had no impact on the trial. Defendant presented, through numerous other witnesses, testimony along these lines, some of which actually demonstrated defendant's aggressive behavior toward others. Moreover, J.F.'s certification revealed only that she could testify she had been "friends over the years with some of the females that [defendant] dated" and that "[n]one of them ever told [her] that [defendant] was abusive or threatening to any of them." Considering the overwhelming and undisputed evidence that defendant killed his girlfriend, as well as the testimony of others with more extensive personal knowledge of defendant's increasingly aggressive behavior prior to the murder, the PCR judge soundly decided that there was no reasonable probability that the absence of J.F.'s testimony could have affected the trial's outcome.
The same is true for defendant's MMPI argument. Specifically, defendant asserted in his PCR petition that "[o]ne time, when Dr. Atkins came to see me at the jail, he left me a booklet with a long group of test questions to complete and give back to him." According to the defense expert, Dr. Maureen Santina, leaving the MMPI test with the subject to complete on his own was "improper." Defendant claims his attorney was ineffective for failing to draw out this information at trial.
The PCR judge found a lack of substance to this argument by pointing out the similarities in the conclusions reached by both experts:
[T]rial counsel's decision not to pursue the added testimony [about the MMPI test] falls within the wide range of reasonable professional assistance because during his lengthy cross-examination of Dr. Atkins, he elicit[ed] repeated admissions from Dr. Atkins that he and Dr. Santina agree[d] on the vast majority of the characteristics of [d]efendant's mental illness. Dr. Atkins stated "the clinical interview and history and testing and all of the issues that led [Dr. Santina] to form an opinion regarding the diagnosis I am in agreement with." Dr. Atkins testified that the results of the MMPI he administered concurred with Dr. Santina's conclusion that [d]efendant was not in a rational state of mind at the time of the murder. The only point on which the two doctors disagreed was whether, at the time of the killing, [d]efendant was able to appreciate that what he was doing was wrong, a point Dr. Atkins specifically testified the MMPI test would not be used to determine. In response to questioning by trial counsel about the results of the MMPI and their consistency with [d]efendant's diagnosis, Dr. Atkins states "there is nothing in the MMPI that you're reading from that would indicate he would lose the ability to distinguish between right and wrong."We agree with the PCR judge's analysis that even if the alleged improper administration of the MMPI impacted Dr. Atkins's credibility, it was so remote from the experts' point of departure that it cannot be said the lack of cross-examination on this point had a reasonable probability of impacting the jury's verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION