STATE OF NEW JERSEY VS. TERRY A. UNDERWOOD(98-10-2038, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5419-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRY A. UNDERWOOD,
Defendant-Appellant.
_____________________________________________
Submitted May 2, 2017 – Decided July 13, 2017
Before Judges Suter and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 98-10-2038.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Terry A. Underwood appeals the denial of his
petition for post-conviction relief (PCR), in which he alleged
multiple errors of trial counsel that deprived him of
representation guaranteed by the United States and New Jersey
Constitutions. Judge Francis J. Vernoia rejected those claims.
State v. Underwood, Ind. No 98-10-2038 (Apr. 23, 2015)
(hereinafter Underwood PCR).1 We affirm.
The grand jurors for Monmouth County charged defendant with
first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2), of Theresa
Underwood, his pregnant wife and the mother of two of his
children. The petit jury found defendant guilty, and the judge
sentenced him to sixty years' imprisonment, thirty without
possibility of parole and subject to terms of parole
ineligibility and supervision under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. The judgment of conviction was
entered on April 28, 2000.
On defendant's direct appeal from the judgment, we affirmed
the conviction but remanded for elimination of the NERA
components of the sentence, which did not apply to murder when
defendant killed Theresa. State v. Underwood, No. A-5493-99
(App. Div. July 11, 2003) (slip op. at 40-41) (hereinafter
Underwood). Defendant was resentenced in September 2003, and
1
The April 23, 2015 order denying PCR also includes a denial of
defendant's motion for a new trial based on newly discovered
evidence, Rule 3:22-1. Defendant does not challenge that
determination.
2 A-5419-14T4
the Supreme Court denied certification in October. State v.
Underwood, 178 N.J. 35 (2003).
Defendant timely filed a petition for PCR on January 29,
2004, which he withdrew and re-filed on April 6, 2006.
I.
A discussion of the evidence admitted at trial provides
context for our consideration of the PCR proceeding. The
factual statement that follows summarizes the pertinent portions
of this court's statement of the facts on direct appeal. And,
it supplements that statement as necessary to address the issues
before us. Underwood, supra, slip op. at 4-15.
"At approximately 1:25 a.m., on August 25 1998, defendant,
a thirty-two year old dedicated bodybuilder and ex-football star
weighing roughly 200 pounds," called 911 from his home. Id. at
4. He advised that "his wife . . . was lying on the floor in
their bedroom 'bleeding from her head' and that there was blood
everywhere," and he said "he had just come into the room and did
not know what had happened" but it looked like his wife had
"slipped on something." Ibid. The operator told defendant to
start CPR, but he refused because "there was blood spattered on
the walls and . . . he was 'looking for a freaking gun shot.'"
Ibid. Indicating he had to call his and Theresa's mothers, he
3 A-5419-14T4
hung up, but the 911 operator called back, and defendant told
her it looked like his wife was not breathing. Id. at 5.
Defendant was still on the phone with the operator when a
policer officer arrived. Id. at 5. Wearing nothing other than
undershorts and socks, defendant met the officer, who noted his
"tremendous physique," and brought him to the bedroom, where
Theresa was lying on the floor in "a huge pool of blood" near
the "blood-covered bed." Ibid. Immediately seeing "obvious
massive head and neck injuries," the officer attempted to but
did not find a pulse and called for assistance. Ibid.
Theresa's injuries were massive. Dr. Jay Peacock of the
Monmouth County Medical Examiner's Office determined she "bled
to death between 9:30 p.m." on August 24 and "1:30 a.m." on
August 25, 1998, "as a result of multiple sharp force injuries."
Id. at 13. Dr. Peacock counted "eighty-eight" stabs and cuts to
her head, neck, upper back, chest, forearms and hands. Id. at
12. Although there were no sharp force injuries penetrating
Theresa's uterus or fetus, Theresa's exsanguination caused
"intrauterine asphyxia" that extinguished the nascent life. Id.
at 13.
In Dr. Peacock's opinion, the stabs penetrating Theresa's
"skull would have required the exertion of extraordinary force
of a degree [he had] seen only once or twice in his career."
4 A-5419-14T4
Id. at 12-13. One penetrated to a depth of five inches and
pierced her brain; another "nearly" severed the bridge of her
nose, and another carried the instrument through her wing bone
and fractured a rib. Id. at 12.
Theresa was also beaten. Her lower and upper jaw and her
right hand and forearm were fractured, two teeth were dislodged,
and her abdomen, left breast, and thigh were bruised. Ibid.
Dr. Peacock concluded that the cuts and factures of Theresa's
right hand and forearm were defensive injuries and some of her
bruising could have been caused by a fist. Ibid.
The weapon was never found, and there was no sign of forced
entry to the apartment. Id. at 13. Remarkably, given the
nature of injuries and blood loss, no blood was found anywhere
in the apartment but the couple's bedroom. Ibid. A small
amount of blood on one of the socks defendant was wearing when
he met the police officer was tested and identified as
Theresa's, but no other blood samples retrieved were tested for
DNA. Ibid.
The single latent fingerprint found in the apartment was
not defendant's or that of any of three women defendant called
on the night of the murder, or a fourth woman with whom he had a
prior relationship. Ibid. The police had considered and
excluded all four women as potential suspects, and all four
5 A-5419-14T4
testified at trial, three for the State and one for defendant.
Id. at 13-15, 40.
Defendant made several statements to the police on August
25. Id. at 5-11. Outside the apartment, an officer, who
arrived while defendant was delivering the Underwoods' two young
children to relatives, asked defendant what happened. Defendant
said he did not know, because he had just come home. Id. at 5-
6. He suggested the officer confirm his recent arrival by
speaking to a toll-collector at a nearby booth on the Garden
State Parkway and touching his still-warm motorcycle. Ibid.
The motorcycle was warm, and the toll collector confirmed that
he saw defendant between 12:00 and 12:30 a.m. on August 25. Id.
at 6, 15.
When defendant returned to his living room after telling
the officer he had just come home, he waved his arms, mumbled
and slammed something down in the living room. An officer put
his hand on defendant's arm and urged him to calm down, but
defendant "flung the officer's hand away, 'whaling'" at him.
Id. at 6. Concerned about defendant hurting someone, the
officer told him he was not under arrest but handcuffed him and
put him in a police car so he could compose himself. Ibid.
Later, another officer approached the car, advised defendant of
his Miranda rights, and asked if he was willing to give a
6 A-5419-14T4
statement at the police station. Defendant agreed to do that.
Ibid.
They arrived at the station at about 2:40 a.m., and at
11:05 p.m., defendant signed a statement admitting to punching
Theresa in the course of an argument over bills. Id. at 6, 11.
Statements defendant made to officers between his arrival
at the station and noon on August 25 were suppressed, but
statements he made after noon were not. Id. at 21. At 6:55
p.m., officers advised defendant he had failed a polygraph and
asked, as they had earlier, if he wanted to leave, eat or call
an attorney. Ibid. The captain who made those offers testified
he did that "because he knew that they had 'had defendant for a
long time' and that they had 'entered the Twilight Zone.'" Id.
at 20. Defendant declined the offers, and around 9:00 p.m., he
said: "I did it, I just snapped. I started beating her. I
don't know what I hit her with. I got a lot of things going on
in my life and the pressure is just too much." Id. at 10-11.
After making that admission, defendant wept. Id. at 11.
By defendant's accounts of his activities on August 24 into
August 25, he came home from work at 5:00 p.m., napped, left for
the gym at 7:30 p.m., left the gym at 9:10 p.m., showered,
changed and left to watch sports at a friend's home, and got
7 A-5419-14T4
home at about 1:20 a.m. via the Parkway. Id. at 7-8. Apart
from the nap, he had not slept since he woke the prior morning.
The State's theory of the case was that defendant killed
his wife and disposed of any physical evidence that would link
him to the crime.
The defense had a three-pronged theory for its claim that
the State's evidence did not establish guilt: 1) law
enforcement rushed to suspect and accuse defendant; 2) the
absence of forensic evidence, attributable to law enforcement's
misconduct or incompetence and evidenced by, among other things,
the State's failure to test Theresa's fingernail clippings for
the perpetrator's DNA; and 3) defendant's inability to commit
this crime and remove the evidence within the time-frame
established by his statements and telephone records.
Defense counsel cross-examined the State's witness about
the absence of forensic evidence and stressed it in his
summation. For example, in commenting on the State's failure to
test Theresa's fingernail clippings for DNA evidence, he
referenced Dr. Peacock's testimony about Theresa's defensive
injuries and urged the jurors to question whether such tests
could have led to the identification of a killer who was still
at large.
8 A-5419-14T4
Defense counsel also urged the jurors to consider the
impact of the many sleepless hours defendant had spent with the
police when he finally admitted he snapped while arguing about
bills with Theresa. Appealing to the jurors' common sense and
experience and incorporating the captain's reference to
defendant being in the "Twilight Zone," the attorney submitted
that defendant was in the Twilight Zone when he admitted to
beating Theresa. Referring to the television program with that
title, he argued that the Twilight Zone is a place where
"realities and dreams are distorted and strange and unusual
circumstances happen at particular times." Referring to the
totality of circumstances, he reminded the jurors that before
defendant made that admission, he had come home and found "his
wife brutally murdered" and his "whole life" changed. Then, he
was thrown into a police car, had no sleep and had been with the
police for 20 hours.
Although defense counsel obtained an expert report
addressing the impact of sleep deprivation and circumstances
leading up to defendant's incriminating statements, he did not
call that expert as a witness.
II.
A. The filing of the petition for PCR and evidence
obtained thereafter.
9 A-5419-14T4
As previously noted, defendant timely filed and re-filed
his petition for PCR. The authorizing order provides that the
re-filed petition will be treated "as if within time and as a
first PCR [petition] with all rights attendant to a first PCR."
The April 6, 2006 petition submitted pursuant to that order
alleged multiple failures of trial counsel.
Defendant sought discovery in support of his claims. On
February 5, 2007, his PCR-counsel obtained the trial court's
approval to have Theresa's fingernail clippings examined to
determine if they contained biological material of sufficient
quantity and quality to permit DNA testing. Those clippings had
been preserved since Theresa's autopsy, and that autopsy
included an autopsy of her fetus.
On subsequent application by defendant and the State, the
court entered a consent order on December 10, 2007, authorizing
DNA testing of the biological evidence detected on Theresa's
fingernail clippings.
The DNA results identified Theresa as the source of or
match for nine of the ten samples. One fingernail tested as a
mixture of DNA. Further testing of the mixed-sample allowed the
10 A-5419-14T4
lab to exclude defendant, but not Theresa or her fetus, as
possible contributors.2
"Based on the loci which include all of the alleles from
the fetus, the number of people who [could not] be excluded" as
possible contributors to the mixed sample was small:
"approximately" one in 22.7 million of the African-American"
population; 1 in 3.90 million of the Caucasian population; and
one in 1.34 million of the Hispanic population.
PCR counsel also obtained a second psychiatrist's opinion
while defendant's petition was pending. Dr. Daniel P.
Greenfield, MD, MPH, MS, focusing especially on statements made
after noon on August 25, opined that the combined effect of
defendant's sleep deprivation and his "perception" of a threat
of "lethal injection" had "created a situation in which . . .
[defendant's] [s]tatements should not have been considered
valid, reliable, or accurate." He based that opinion on the
"well-known" impacts of sleep-deprivation: impairment of
"cognitive abilities," memory, perception and recollection of
detail. Dr. Greenfield explained that defendant's "perception
and understanding of his situation . . . as well as his ability
2
The fetus's DNA used was obtained from liver tissue retrieved
and preserved during the autopsy.
11 A-5419-14T4
to have remembered accurately what had happened a number of
hours before . . . were sufficiently adversely affected and
impaired . . . to support" his opinion on the statements'
invalidity and unreliability.
B. Issues raised.
Following receipt of the DNA results and defendant's expert
report, the parties submitted multiple briefs, which are listed
in Judge Vernoia's opinion. Underwood PCR, supra, slip op. at
7-9. The judge heard argument on the petition and defendant's
accompanying motion for a new trial on November 5, 2014.
On direct appeal, defendant raised and, with the exception
of his objection to NERA penalties, this court rejected the
following arguments:
POINT I
THE COURT BELOW ERRED IN DENYING UNDERWOOD'S
MOTION TO SUPPRESS STATEMENTS WHERE THE
STATEMENTS WERE THE PRODUCT OF UNDERWOOD'S
ILLEGAL ARREST AND WERE INVOLUNTARILY GIVEN.
A. THERE WAS NO BREAK IN THE
CAUSAL CHAIN BETWEEN UNDERWOOD'S
ILLEGAL ARREST AND THE STATEMENTS
THAT WERE ADMITTED AS EVIDENCE
AGAINST UNDERWOOD.
B. UNDERWOOD'S ADMISSIONS, MADE
AFTER 16 HOURS OF QUESTIONING,
WERE THE RESULT OF AN OVERBEARING
OF UNDERWOOD'S WILL.
12 A-5419-14T4
POINT II
BY SUPPRESSING THE FACT THAT UNDERWOOD WAS
SUBJECTED TO FOUR AND A HALF HOURS OF
UNINTERRUPTED QUESTIONING BY POLICE ON THE
MORNING OF AUGUST 25, 1998, THE TRIAL COURT
GROSSLY LIMITED THE JURY'S ABILITY TO FAIRLY
DETERMINE THE CREDIBILITY OF THE INCULPATORY
STATEMENTS MADE BY UNDERWOOD LATER THAT
EVENING.
POINT III
IT WAS ERROR FOR THE TRIAL COURT TO ADMIT
UNDERWOOD'S INCRIMINATING STATEMENTS, WHICH
SUGGESTED THAT UNDERWOOD ACTED IN THE HEAT
OF PASSION, AND THEN REFUSED TO INSTRUCT THE
JURY ON PASSION/PROVOCATION MANSLAUGHTER AS
A LESSER OFFENSE.
POINT IV
THE COURT SHOULD HAVE GRANTED UNDERWOOD'S
MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE
UNDERWOOD'S UNCORROBORATED ADMISSIONS WERE
THE ONLY DIRECT EVIDENCE OF GUILT.
POINT V
THE COURT'S FAILURE TO CONDUCT FOLLOW-UP
VOIR DIRE ON A JUROR'S FAMILIAL RELATIONSHIP
WITH THE MONMOUTH COUNTY PROSECUTOR
PREVENTED DEFENSE COUNSEL FROM MAKING AN
INFORMED DECISION AS TO WHETHER THE JUROR
HARBORED A BIAS IN FAVOR OF THE STATE,
THEREBY VIOLATING UNDERWOOD'S RIGHT TO A
FAIR AND IMPARTIAL JURY. (NOT RAISED BELOW)
POINT VI
THE IMPROPER ADMISSION OF UNDULY PREJUDICIAL
EVIDENCE, INCLUDING A POSTMORTEM X-RAY OF
THE FETUS WHICH WAS REMOVED FROM THE
VICTIM'S UTERUS, DEPRIVED UNDERWOOD OF A
FAIR TRIAL.
13 A-5419-14T4
POINT VII
THE PROSECUTOR WAGED AN IMPROPER AND HIGHLY
PREJUDICIAL ATTACK ON UNDERWOOD'S CHARACTER
BY CALLING GERTIESE DAVIS AND MYRA THOMAS AS
WITNESSES AT TRIAL, FOR THE SOLE PURPOSE OF
PORTRAYING UNDERWOOD AS A HABITUAL
WOMANIZER, BAD HUSBAND AND DECEITFUL PERSON.
(NOT RAISED BELOW)
POINT VIII
BECAUSE THE "NO EARLY RELEASE ACT" DOES NOT
APPLY TO THE CRIME OF MURDER, THE FIFTY-ONE-
YEAR PAROLE DISQUALIFIER THAT UNDERWOOD WAS
ORDERED TO SERVE MUST BE VACATED.
On this appeal defendant presents five arguments addressing
alleged deficient performance of trial counsel and a general
claim that an evidentiary hearing was required.3
POINT I
THIS COURT SHOULD REVERSE THE TRIAL COURT'S
DECISION TO DENY DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING.
A. DEFENDANT'S TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE HE DID NOT
INVESTIGATE DNA TESTING THAT WOULD
HAVE DEMONSTRATED DEFENDANT'S
INNOCENCE. [Underwood PCR, supra,
slip op. at 19-34.]
3
We have added citations to the portions of Judge Vernoia's
ninety-nine page opinion that address each issue and the
portions of this court's opinion on direct appeal that address a
claim of trial error related to these new claims of deficient
representation.
14 A-5419-14T4
B. DEFENDANT'S TRIAL ATTORNEY WAS
INEFFECTIVE WHEN HE DID NOT
PRESENT PSYCHIATRIC TESTIMONY TO
PROVE DEFENDANT'S STATEMENTS IN
POLICE CUSTODY WERE NOT RELIABLE.
[Underwood PCR, supra, slip op. at
42-53; see Underwood, supra, slip
op. at 16-26 (describing
circumstances under which
defendant made statements to
investigators and admissibility).]
C. DEFENDANT'S TRIAL ATTORNEY WAS
INEFFECTIVE BECAUSE HE DID NOT
EXERCISE A PEREMPTORY CHALLENGE ON
THE MONMOUTH COUNTY PROSECUTOR'S
UNCLE. [Underwood PCR, supra, slip
op. at 53-60; Underwood, supra,
slip op. at 33-34 (rejecting claim
that judge should have dismissed
juror).]
D. DEFENDANT'S TRIAL ATTORNEY
SHOULD NOT HAVE WITHDRAWN HIS
REQUEST FOR A PASSION/PROVOCATION
MANSLAUGHTER CHARGE. [Underwood
PCR, supra, slip op. at 61-65;
Underwood, supra, slip op. at 27-
30 (rejecting claim that judge
should have charged this form of
homicide sua sponte).]
E. DEFENDANT'S TRIAL ATTORNEY
SHOULD HAVE CHALLENGED THE
EXCLUSION OF DEFENDANT FROM
SIDEBAR CONFERENCES. [Underwood
PCR, supra, slip op. at 86-89.]4
4
Judge Vernoia addressed additional issues that defendant does
not challenge. They are: entitlement to a new trial based on
the DNA results, Underwood PCR, supra, slip op. at 34-42;
failure to object to the State's summation, id. at 61-65;
absence of advice on defendant's right to testify on the
suppression motion, id. at 72-80; poor advice on defendant's
15 A-5419-14T4
To obtain relief for ineffective assistance, a defendant
must demonstrate deficient performance and resulting prejudice.
To do that, a defendant must "identify specific acts or
omissions that are outside the 'wide range of reasonable
professional assistance' and . . . show prejudice by
demonstrating 'a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" State v. Jack, 144 N.J. 240, 249 (1996)
(quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104
S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)).
The reasonableness of an attorney's performance is assessed
"on the facts of the particular case, viewed as of the time of
counsel's conduct." Strickland, supra, 466 U.S. at 690, 104 S.
Ct. at 2066, 80 L. Ed. 2d at 695. Review is deferential; "a
court must indulge a strong presumption that counsel's conduct
falls well-within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350
right to testify at trial, id. at 80-86; failure to present
evidence of third-party guilt, id. at 89-94; and cumulative
error, id. at 94-98.
16 A-5419-14T4
U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1995));
accord State v. Echols, 199 N.J. 344, 358 (2009). "[S]trategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchangeable."
State v. Harris, 181 N.J. 391, 488 (2004) (quoting Strickland,
supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at
695), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005).
It is important for courts to consider realistically
objections to counsel's decisions. They cannot focus "on a
handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of
defendant's guilt." State v. Castagna, 187 N.J. 293, 314
(2006).
To establish the necessary prejudice, a "defendant must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability 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. An unreasonable professional error without a
reasonable probability of changing the outcome has no import.
Ibid. An evidentiary hearing on PCR is needed only when the
17 A-5419-14T4
defendant has come forward with facts that would, if believed,
make a prima facie showing of both deficient performance and
resulting prejudice adequate to establish both by a
preponderance of the evidence. State v. Preciose, 129 N.J. 451,
462-64 (1992).
We affirm Judge Vernoia's determination that defendant
failed to establish entitlement, or a prima facie case of
entitlement, to relief based on ineffective assistance of trial
counsel on any ground asserted on this appeal. We affirm
substantially for the reasons stated in his opinion as amplified
here to stress the bases for our agreement.
Trial counsel's decision to forego DNA testing of
fingernail clippings was consistent with his unmistakable and
well-executed trial strategy. That strategy was to raise doubt
about defendant's guilt by portraying the investigation and
prosecution as the product of a rush to judgment that led the
State to avoid collection of evidence that could have exonerated
defendant.
In light of the defense strategy, DNA testing was not a no-
risk or clearly advantageous option. Defense attorneys are
required to provide the results of such tests to the State, Rule
3:13-3(b)(2)(A). Because defendant and Theresa lived together
and shared a bed, his DNA potentially could have been found
18 A-5419-14T4
under Theresa's fingernails due to contact wholly unrelated to
the homicidal attack. Without any DNA evidence, counsel was
free to argue a complete absence of forensic evidence
implicating defendant. And, because there was no evidence that
defendant had scratches indicative of a struggle, defendant did
not need a DNA test to argue that Theresa did not scratch him.
More important, the potential benefit of a test showing third-
party DNA was minimal, because the presence of unidentified
third-party DNA would not establish it got under Theresa's nail
during the brutal homicide rather than some other prior contact
or subsequent contact by a responder.
Viewed in context, there is no support for a finding of
anything other than a reasonable strategic decision to forego
testing of Theresa's fingernails. Defendant's claim based on
trial counsel's failure to request DNA testing was properly
denied on that basis.
We turn to defendant's contention that counsel's
performance was deficient because he did not present expert
testimony on the impact of sleep deprivation at the hearing on
his motion to suppress or at trial.5 In our view, Judge Vernoia
5
Here, as in the trial court, defendant presents no argument
based on Dr. Greenfield's report. See Underwood PCR, supra,
slip op. at 53 n.9 (noting that "[no] argument or request is
made based upon Dr. Greenfield's report").
19 A-5419-14T4
properly denied relief on the ground that such expert testimony
would be inadmissible because such matters are well-within the
common understanding of average jurors who must decide whether a
defendant's statements are reliable and truthful and well-within
the common understanding of judges who must decide the issues in
a suppression motions. State v. Kelly, 97 N.J. 178 (1984); see
generally State v. Rosales, 202 N.J. 549, 565-67 (2010); State
v. Free, 351 N.J. Super. 203, 220-21 (App. Div. 2002); cf. State
v. King, 387 N.J. Super. 522 (App. Div. 2006) (discussing an
expert report addressing defendant's particular mental condition
and psychological make-up).
An attorney who refrains from offering inadmissible
evidence is, quite obviously, well-within the range of
competence. Harris, supra, 181 N.J. at 496-97 (rejecting a
claim of ineffective assistance based on a failure to raise an
objection that had no legal basis). For that reason, we affirm
the denial of this claim.
Defendant's claims of ineffective assistance based on trial
counsel's failure to exercise a peremptory challenge to a juror
who disclosed his uncle-nephew relationship with the Monmouth
County Prosecutor (Point I.C.) and failure to request
defendant's inclusion in sidebar conferences during jury voir
20 A-5419-14T4
dire (Point I.E.) are related, because the second claim is based
solely on the judge's colloquy with that juror.
The juror, #735, readily disclosed the familial
relationship, said he thought the judge and "both sides should
be aware of it" and volunteered, "Won't bias my judgment, but I
think you should be aware of the . . . situation."
Addressing that juror, the judge named all potential
witness and attorneys involved in the case; the juror was not
familiar with any. He was a retired civil engineer, who had
returned to work as a consultant; no other member of his family
worked in law enforcement or law. A member of his household had
been arrested the year before, but the juror answered "No," when
asked whether having that experience in his background would
affect his ability to be fair and impartial. He also answered
"No," when asked whether he believed "male professional athletes
who participate in contact sports are more aggressive in their
personal lives than other people or more aggressive toward women
than other people in society." He further denied any racial
bias or bias against partners in an interracial relationship.
He confirmed he would be able to deal with the fact that
although a fetus died there would not be separate charge and
decide the case on the evidence at trial and the law as
explained by the judge.
21 A-5419-14T4
The judge inquired again about any bias or prejudice either
for or against members of law enforcement. The juror said, "I
have neither."
All of the foregoing occurred in open court. The only
portion of this juror's voir dire conducted at sidebar was a
discussion about the juror's "problem with the time element" of
the trial.
On PCR, defendant offered no evidence of bias or prejudice
apart from the uncle-nephew relationship. In his certification
in support of this claim on PCR, defendant asserted:
During jury selection, I asked my attorney
to strike Juror #735, because he was the
uncle of the county prosecutor. During the
jury selection, there were conversations
regarding jurors to which I was not privy.
When my attorney returned to counsel table,
he told me that Juror #735 would not have a
problem being impartial. I again requested
that he been [sic] stricken, but my attorney
refused.
Assuming the attorney disregarded defendant's desire to
strike the juror, there is no question that this was an
unassailable and presumptively reasonable professional strategic
decision based on the juror's balanced responses to the judge's
searching questions. As such, the attorney's decision is not a
viable basis for a finding of deficient performance.
Defendant's argument addressing exclusion from sidebar is
22 A-5419-14T4
not supported by the facts asserted in his certification or the
law. Apart from discussion of excusing this juror because of
his work schedule, which the judge did not do, the voir dire was
conducted in open court, and, as defendant's certification
indicates, sidebar proceedings were conducted in conformity with
the "lawyer-shuttle" method employed in this State until 2005
when the Supreme Court established a new rule of law on this
point in State v. W.A., 184 N.J. 45 (2005). See State v.
Colbert, 190 N.J. 14, 23-24 (2007).
Under the lawyer-shuttle employed before W.A., "what was
critical was that defendant had a real opportunity to
participate in decision-making at the voir dire stage of his
trial." Id. at 23. Defendant's certification and the
transcript of the voir dire establish that defendant had a real
opportunity to participate in decision-making at the voir dire
stage, and Colbert establishes that his attorney had no basis
for requesting greater participation in 2000, when this jury was
selected. See Harris, supra, 181 N.J. at 497.
Defendant's remaining claim, that trial counsel was
ineffective because he withdrew a request for an instruction on
passion/provocation manslaughter, does not require extensive
discussion. If counsel had made the request, the trial judge
could not have granted it "unless there [was] a rational basis
23 A-5419-14T4
for a verdict convicting" defendant of passion/provocation
manslaughter. N.J.S.A. 2C:1-8(e); see State v. Funderburg, 225
N.J. 66, 81 (2016). "[P]assion/provocation manslaughter is
comprised of four elements: "[1] the provocation must be
adequate; [2] the defendant must not have had time to cool off
between the provocation and the slaying; [3] the provocation
must have actually impassioned the defendant; and [4] the
defendant must not have actually cooled off before the slaying."
Funderburg, supra, 225 N.J. at 80 (quoting State v. Mauricio,
117 N.J. 402, 411 (1990) (citation omitted)).
"'The generally accepted rule is that words alone, no
matter how offensive or insulting, do not constitute adequate
provocation to reduce murder to manslaughter.'" Funderburg, 225
N.J. at 80 (quoting State v. Crisantos, 102 N.J. 265, 274,
(1986)). Accordingly, because the only evidence of provocation
in this case was defendant's statement asserting that he snapped
during a heated argument, he was not entitled to a charge on
this lesser form of homicide. As previously noted, a trial
counsel acts within the wide range of professional competence
when he refrains from urging a judge to take a course that has
no legal basis. Harris, supra, 181 N.J. at 497.
Affirmed.
24 A-5419-14T4