STATE OF NEW JERSEY v. TINA LUNNEY (10-01-0190, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-5524-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TINA LUNNEY,
Defendant-Appellant.
Submitted November 18, 2020 – Decided January 18, 2022
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-01-0190.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Emily M. M. Pirro,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
A jury convicted defendant Tina Lunney of the first-degree murder of
her eighty-one-year-old mother, whom she strangled with a necktie, and the
judge sentenced her to forty years in State prison subject to the periods of
parole ineligibility and supervision required by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on
direct appeal, State v. Lunney, No. A-0774-13 (App. Div. Apr. 21, 2016), and
the Supreme Court denied defendant’s petition for certification, State v.
Lunney, 227 N.J. 240 (2016). 1
At trial, the State proved defendant used her mother's credit card within
hours of the murder to pay for a vacation her family was scheduled to take at
the end of the week and satisfy an outstanding bill to PSE&G, which had
previously turned off electric service to the split-level home defendant shared
with her husband and two children. State v. Lunney, No. A-0774-13 (slip op.
at 15-16). Defendant's mother lived downstairs, where she was killed. Id. at
1
The United States Supreme Court denied defendant's petition for certiorari on
October 2, 2017. Lunney v. New Jersey, 138 S. Ct. 56 (2017).
2 A-5524-18
6-7. Defendant subsequently staged the crime scene to have it appear a suicide
— complete with a forged note. Ibid.Defendant was not a suspect when she and her husband gave statements
to the police following the discovery of the body. Id. at 3. The next morning,
however, she wandered away from where she was staying, and her husband
reported her missing. Ibid. After police discovered her four days later
walking near her home in the early morning hours, she confessed to the crime.
Id. at 3-6.
Defendant subsequently attempted to suppress her statement on the
ground she could not understand and effectively waive her Miranda 2 rights
because she was in a state of "dissociative fugue" disconnected from reality.
Id. at 11. The State's psychiatrist found no sign of mental illness. Id. at 11-12.
Following three days of testimony, the judge denied the motion in a
comprehensive written opinion. Id. at 12-15. Defendant rejected an offer
permitting her to plea to aggravated manslaughter with a recommended fifteen-
year NERA term and insisted on taking the case to trial.
At trial, defendant contended the police failed to undertake any
investigation after she confessed, notwithstanding there was no physical
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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evidence linking her to the crime, and that many of the details she offered
about the murder were not consistent with the physical evidence. She also
alleged the chief detective on the case lied and twisted the evidence to make it
appear consistent with her statement. Defendant maintained she did not kill
her mother and had falsely confessed due to a mental breakdown after she
found her mother's body.
The psychiatrist who testified on her behalf at the suppression hearing,
Dr. Latimer, also testified at trial. He diagnosed defendant as suffering from
bipolar disorder with psychosis, and testified her disappearance, during which
she traveled "without any good reason" to the Bloomfield library and Atlantic
City, places she used to go with her mother, reflected her "personality ha[d]
dissociated itself from reality[] in order to avoid unpleasant affective states."
Id. at 10, 22.
On cross-examination, however, Dr. Latimer was forced to concede he'd
reviewed the report of a psychiatrist, Dr. Paul, from Ann Klein Forensic
Center, who claimed defendant told him "she and her attorney were planning
on using the M'Naghten (insanity) defense," and included Dr. Paul's opinion
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that "she did not display any deficits in her cognitive functioning." 3 Id. at 23.
The State also introduced a letter defendant had written to her husband from
jail explaining she'd wanted to kill herself after realizing what she'd done and
discussing defense strategy, including asserting an insanity or diminished
capacity defense. Id. at 23-24. The State used that evidence to argue
defendant was not psychotic but knew what she had done and was trying "to
beat her case with [an] insanity defense." Id. at 11.
After her direct appeals ran their course, defendant filed an amended
petition for post-conviction relief with assistance of counsel, raising the
following issues:
I. WHEN TRIAL COUNSEL OPENED THE DOOR
TO PSYCHIATRIST DR. PAUL'S REPORT, HE
UNDERMINED HIS CLIENT'S DEFENSE.
II. TRIAL COUNSEL FAILED TO PRESENT A
DIMINISHED CAPACITY OR INSANITY
DEFENSE TO THE HOMICIDE CHARGE.
III. TRIAL COUNSEL WAS INEFFECTIVE BY
DENYING HIS CLIENT THE OPPORTUNITY TO
3
The M'Naghten insanity defense is based on "the test of insanity . . . laid down
in the well-known M'Naghten's Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718
(1843)." State v. Wolak, 26 N.J. 464, 476 (1958). The "test is whether the
defendant, at the time of the doing of the act complained of, was suffering from
such a disease of the mind as to be unable to know the nature and quality of the
act he was doing, or, if he did know, that he did not know that what he was doing
was wrong." Id. at 476-77.
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TESTIFY AT THE MIRANDA HEARING.
IV. TRIAL COUNSEL FAILED TO ASK THE
TRIAL COURT TO REOPEN THE MIRANDA
HEARING AFTER DETECTIVE PRACHAR'S
INCONSISTENT TESTIMONY AT TRIAL.
V. TRIAL COUNSEL FAILED TO OBJECT TO THE
STATE'S PREJUDICIAL REMARKS DURING
CLOSING.
VI. BECAUSE TRIAL COUNSEL MISLED
PETITIONER AS TO THE STRENGTH OF THE
STATE'S CASE, PETITIONER REJECTED THE
STATE'S PLEA OFFER.
VII. TRIAL COUNSEL WAS INEFFECTIVE WHEN
HE ALLOWED THE TRIAL COURT TO
IMPROPERLY EXCLUDE HIS CLIENT FROM
CERTAIN PRETRIAL PROCEEDINGS.
VIII. DEFENSE COUNSEL’S CUMULATIVE
ERRORS DENIED DEFENDANT A FAIR AND
RELIABLE TRIAL.
She added three more issues in a supplemental pro se brief:
I. PETITIONER’S ASSIGNED COUNSEL
PROVIDED CONSTITUTIONALLY INEFFECTIVE
ASSISTANCE A TRIAL BY FAILING TO
EFFECTIVELY CROSS EXAMINE THE
PROSECUTION WITNESSES.
II. EVIDENCE SEIZED BY POLICE WITHOUT A
WARRANT FROM PETITIONER'S POCKETBOOK
WAS USED AS EVIDENCE DURING HER
INTERROGATION AND AT TRIAL, INSTEAD OF
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BEING SUPPRESSED, VIOLATING PETITIONER'S
CONSTITUTIONAL PROTECTION AGAINST
UNREASONABLE SEARCH AND SEIZURE.
III. THE STATE'S FAILURE TO TURN OVER TO
THE DEFENSE THE RESULTS OF THE
HANDWRITING ANALYSIS ON THE ALLEGED
SUICIDE NOTE WAS A VIOLATION OF BRADY
V. MARYLAND.
After hearing argument on the petition, the PCR judge determined two
issues warranted an evidentiary hearing: "(1) why trial counsel did not
interpose a defense of diminished capacity or insanity; and (2) whether
defendant's decision to go to trial was an informed decision." Trial counsel
and defendant both testified at the hearing.
Trial counsel was a very experienced lawyer, one of the first assistant
public defenders in the Essex region, primarily assigned homicide cases.
According to him, he discussed possible defenses with defendant, including
insanity or diminished capacity, as well as resolving the case with a plea
"many times." He testified he made clear to defendant he did not believe
"either an insanity defense or any other type of defense where she would
otherwise indicate reasons for why she did an act" or the defense they
"ultimately . . . went with . . . her denial of killing her mother" would be
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successful before a jury. He accordingly made clear to her he "thought the
plea was the only viable option."
He explained defendant had no mental health history and the only
psychiatric records available were those from the jail, which he subpoenaed
and supplied to Dr. Latimer, the defense psychiatrist. Although trial counsel
testified Dr. Latimer was not able to give an opinion to meet "the M'Naghten
standard for an insanity defense," he further claimed defendant did not wish to
pursue either an insanity or diminished capacity defense after counsel
explained success on either would likely not result in her release but in her
involuntary commitment under N.J.S.A. 2C:4-8 and State v. Krol, 68 N.J. 236(1975). 4 He further explained that notwithstanding defendant's confession,
"from day one, her position to [him] was she didn't do it, the statement was not
true." Counsel thus concluded he "was limited by her statements to defend the
case [in] the only way [he] could which was to say she didn't do it, therefore
4
Defendant submitted a certification in support of her amended petition that
she intended "to pursue a diminished capacity/insanity defense until [her]
attorney told [her] that should [she] succeed with this defense, it was highly
likely that [she] would be subjected to indefinite lifetime civil commitment
after trial," and she thereafter "agreed not to present a diminished capacity/
insanity defense," although she claimed that advice was "misleading" and
deprived her of "a complete and adequate defense."
8 A-5524-18
someone else must have, because it was clear . . . her mother was murdered,
there was no viable option to defend with any insanity or diminished
capacity." 5
Counsel testified he explained to defendant after she lost the Miranda
motion that her videotaped confession would be played for the jury,
necessitating he call Dr. Latimer to try to limit the damage by testifying, as he
had at the hearing, that the statement was unreliable based on defendant's
fugue state. Counsel explained, however, "it wasn't just the statement [he]
thought made the case bad. There were also multiple areas of consciousness of
guilt that arose from her behavior immediately after the incident."
Cataloguing those "areas," counsel testified:
Some of those were addressed by Dr. Latimer, but
many of them, such as calling the credit card company
and trying to pretend she was her mother at a point in
which she was trying to obtain money after her mother
was dead. That was a problem.
5
Counsel also explained a diminished capacity defense, even if he had an
expert to support it, which he didn't, "would make no sense," because "unlike
insanity which is a complete defense at law, diminished capacity is a partial
defense" that would reduce "murder to an aggravated manslaughter. So if she
took a diminished capacity to trial, she would risk the murder conviction."
Counsel explained that even if defendant "got the diminished capacity
ag[gravated] man[slaughter] verdict, it wouldn't be capped at the 15 like the
plea offer was, it'd be capped at 30, which is the max under . . . aggravated
manslaughter." Accordingly, counsel maintained "it would be self-defeating to
use that defense in this case where a plea offer of 15 was already on the table."
9 A-5524-18
There was a letter she wrote to her husband where she
basically indicated she thought she may have killed
her mother and she wanted her husband to research
[an] insanity defense. That was a problem.
The fact that she wrote a suicide note claiming it was
her mother's suicide note, suggesting that her mother
had committed suicide when, in fact, that wasn't the
case. She had been the one who had discovered her
mother and turned over the suicide note or at least her
husband did. That was a problem.
The fact that she went on this four-day odyssey
traveling to parts unknown, but that she recollected
most of where she went to the casinos, to the library,
and that she potentially wrote another suicide note in
her name, that was also a problem.
All those things in counsel's "estimation, argued against somebody who
didn't kill her mother." Counsel explained, however, "the whole idea" of a
defense based on denial "is to try to [deflect] suspicion away from the
defendant." But "[b]ecause there were consciousness of guilt problems," the
defense "had to explain all this conduct because it was all incidental to the
giving of the statement, and there was no way to do it without using the doctor
to suggest that she was acting in some fashion in a mentally ill way." In
counsel's view, "[t]hat tended to turn suspicion towards her," which he
believed "undermine[d] the [denial] defense," and "for that reason [he] tried to
convince her multiple times that the best option was to work out the plea."
10 A-5524-18
Trial counsel testified he thought the State's offer, a plea to aggravated
manslaughter in return for a recommended fifteen-year NERA term, "was
extremely generous and favorable, given the proofs in the case," but he was
never able to convince defendant of that because it would have required "her to
serve an additional 10 or 12 years at that point." According to counsel, "[s]he
didn't want to do that. She wanted to be home with her kids. And, so what
ended up happening was, [he] told her, the only way [she] could get home is if
[she] were found not guilty outright." And although he explained to her "why
that was just not going to happen. Needless to say, she persisted on defending
the case that way," and refused to accept the plea.
Counsel maintained, however, that he "went over it every time [he] saw
her" in the hope she would change her mind or at least allow him to make "a
counteroffer or some lesser term that [he] could go back . . . and try to
renegotiate the number." He testified the prosecutor left the offer open until
the State put on its first witness, and he had a distinct recollection of going
"into the cell block" after opening statements and telling her "this was [her]
absolute last chance, the prosecutor hasn't called a witness, you've heard how
the case is going in, take the deal, this is your last chance, and she said no."
11 A-5524-18
He claimed "[t]he only number she wanted to come up with was she wanted to
go home. And that just wasn't going to happen under any construct."
On cross-examination, defendant's PCR counsel probed trial counsel's
understanding that in order to pursue an insanity defense, defendant needed to
be willing to allow her counsel to admit she'd murdered her mother. PCR
counsel asked whether trial counsel was "saying that she needed to admit to
killing her mother in order to raise an insanity defense?" Trial counsel
responded, "That's exactly what I'm saying," explaining "it's not crazy to not
kill your mother. It's maybe crazy to kill your mother. But it's not crazy to not
do something." He maintained a defendant who claimed someone else
committed the crime needed no explanation for the act, because "[y]ou are
saying you didn't do it. It's obvious if you didn't do it, then you weren't acting
insane when you didn't do it."
Defendant's testimony was brief. She testified trial counsel discussed a
diminished capacity or insanity defense, that she was willing to pursue such a
defense, and that trial counsel never explained why he elected not to go
forward with either.
12 A-5524-18
After hearing that testimony, the judge found defendant had not carried
her burden under the Strickland 6 standard as to either of the two issues
addressed at the evidentiary hearing — whether defendant received ineffective
assistance of counsel in connection with her rejection of the State's plea offer
and counsel's subsequent failure to pursue a defense of insanity or diminished
capacity at trial.
As to defendant's rejection of the plea, the judge accepted trial counsel's
unrebutted testimony that he consistently advised defendant to accept the
State's generous twelve-year offer, which defendant refused despite his many
entreaties. The judge found trial counsel a credible witness, having "a vivid
recollection of his discussions with . . . defendant, the strength of the state's
case, his discussions with the Assistant Prosecutor and his impressions of . . .
defendant." The judge found defendant's rejection of the plea based solely on
her desire to avoid prison time — and not on any advice she got from counsel
— precluded a finding defendant was prejudiced by counsel's advice. See
Lafler v. Cooper, 566 U.S. 156, 163-64 (2012) (holding a defendant
complaining that ineffective assistance induced him to reject a plea and go to
6
Strickland v. Washington, 466 U.S. 668, 693-94 (1984).
13 A-5524-18
trial must establish, among other things, that he would have accepted the plea
but for counsel's advice).
As to counsel's failure to assert an insanity or diminished capacity
defense, the judge noted trial counsel's testimony as to the difficulties in
asserting either successfully, as well as the likelihood that success would not
achieve defendant's goal of going home to her kids. The judge acknowledged
the evidence in the record of defendant's "mental deterioration" after she was
jailed, but also the evidence supporting the State's psychiatrists' view that
defendant was malingering. In light of those facts and the evidence the State
presented as to defendant's consciousness of guilt in the days and weeks after
her mother's murder, the judge found "a reasonable basis for trial counsel's
strategic decision not to invoke either defense." See State v. Savage, 120 N.J.
594, 617 (1990) (noting counsel's trial strategy after a thorough investigation
of the options in light of the applicable law and relevant facts is "virtually
unchallengable") (quoting Strickland, 466 U.S. at 690). The judge additionally
concluded defendant failed to prove prejudice by demonstrating to a
reasonable probability that asserting either defense would have likely changed
the jury's verdict in light of the strength of the State's case. See State v. Pierre,
14 A-5524-18
223 N.J. 560, 583 (2015) (noting the importance of the strength of the
evidence in assessing prejudice under Strickland).
Our review of the record convinces us the judge carefully considered the
two claims presented at the hearing; her factual findings were reasonably
reached on sufficient credible evidence in the record and are thus binding on
this appeal, State v. Nash, 212 N.J. 518, 540 (2013). We agree that as to those
two issues, defendant failed to demonstrate the performance of her counsel
was substandard or that, but for the alleged errors, the result would have been
different. Strickland, 466 U.S. at 694.
The jury instruction on insanity requires the jury first find beyond a
reasonable doubt the defendant committed the offense. Model Jury Charges
(Criminal), "Insanity (N.J.S.A. 2C:4-1)" (approved Oct. 17, 1988). The judge
found trial counsel's testimony credible that defendant was adamant she had
not killed her mother, and was unwilling to admit she'd done so,
notwithstanding her confession to police. Under those circumstances, trial
counsel was not free to argue otherwise in asserting an insanity or diminished
capacity defense. See McCoy v. Louisiana, 138 S. Ct. 1500, 1505 (2018)
(holding when a defendant expressly asserts a desire to maintain her innocence
and does not want to admit guilt, her "lawyer must abide by that objective and
15 A-5524-18
may not override it by conceding guilt," notwithstanding the lawyer's
"experienced-based view" that conceding guilt would be the best chance of
avoiding even the death penalty). "With individual liberty . . . at stake, it is the
defendant's prerogative, not counsel's, to decide on the objective of his
defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or
to maintain his innocence, leaving it to the State to prove his guilt beyond a
reasonable doubt." Ibid.It was defendant's prerogative, not counsel's, to decide the objective of
her defense, which the judge reasonably found was to return home and avoid
further confinement. Even if trial counsel believed an insanity or diminished
capacity defense was defendant's best option, which he obviously did not as he
repeatedly advised her to take the plea offer, he was not free to pursue it
because he would have overridden defendant's stated objective to be found not
guilty and avoid any further confinement.
Although we affirm the judge's decision to deny relief on the two claims
she decided, we agree with defendant that a remand is necessary to permit the
court to consider the nine other issues defendant raised but the judge failed to
address. Accordingly, we affirm dismissal of defendant's ineffective
assistance of counsel claim based on his alleged inadequate advice in
16 A-5524-18
connection with the State's plea offer and the failure to present an insanity or
diminished capacity defense at trial and remand for consideration of
defendant's remaining claims. We do not retain jurisdiction.
Affirmed in part and remanded in part.
17 A-5524-18