STATE OF NEW JERSEY VS. SUZETTE HINDS-MOHAMMED (06-12-0973, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0789-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SUZETTE HINDS-MOHAMMED,
Defendant-Appellant.
__________________________________________
Submitted May 2, 2017 – Decided May 25, 2017
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
06-12-0973.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Abbasi, Designated
Counsel, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (James L.
McConnell, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Suzette Hinds-Mohammed appeals from an order
entered by the Law Division on March 26, 2015, denying her petition
for post-conviction relief (PCR) without a hearing. We affirm.
Defendant was charged with first-degree attempted murder of
Devon Robinson, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1);
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b). Defendant was tried before a jury.
At the trial, the State presented evidence, showing that
defendant and Robinson had a romantic relationship that dated back
to 1999. The relationship deteriorated when defendant suspected
Robinson was involved with other women. In October 2006, defendant
confronted Robinson with her suspicions, and dumped a jug of water
on him. Two days later, Robinson obtained a temporary restraining
order against defendant, which barred her from his apartment and
imposed other restraints. Defendant moved to a hotel.
Several days later, defendant called Robinson and asked to
meet him. She met Robinson and told him she needed money. They
went in defendant's car to look at an apartment in Somerville that
defendant wanted to rent. On the way there, defendant apparently
became lost. She got off the highway and parked briefly in a dark
alley. Defendant re-entered the highway and exited at a scenic
overlook. Defendant told Robinson she needed to use the restroom.
She got out of the car. The area was otherwise empty.
Defendant returned to the car and asked Robinson to open the
rear hatch. She approached Robinson on the passenger side to ask
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for tissues. Robinson turned to the center console and then turned
back toward defendant. Defendant shot Robinson in the right side
of his head. According to Robinson, defendant said, "you won't
fuck me over anymore." Robinson reached for the gun, and defendant
shot him again in the hand.
Robinson managed to exit the car. He wrestled defendant to
the ground and gained control of the gun. He ran to the car and
got into the driver's seat. Defendant also entered the car.
Robinson took the car keys and gun and started to walk down the
incline to the highway.
Defendant followed him. Robinson called 9-1-1 to report the
shooting and dropped the gun in the process. He saw defendant
trying to flag down passing cars. Robinson got back into the car
and drove to a hospital. The trauma surgeon determined that one
bullet had entered Robinson's right ear, traveled downward, and
lodged in his jaw. The bullet could not be removed without the
risk of causing serious damage.
A police officer, responding to a report that someone was
walking along the highway, found defendant crouched behind a
guardrail on the highway. She waved the officer down. The officer
handcuffed and frisked defendant. He asked if she was injured and
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inquired about the location of the gun. The officer informed
defendant of her Miranda rights.1
Defendant was transported to the police station and again
informed of her Miranda rights. She waived those rights and gave
a statement to the investigating officers. She gave an account of
the shooting that differed from Robinson's account. She stated
that she had been driving with Robinson and stopped at the scenic
overlook to use the restroom. According to defendant, as they
exited the car, Robinson choked and punched her.
Defendant said she tried to get back into the car, and
Robinson tried to force her out. She pulled the gun from the glove
compartment and shot Robinson. The fight continued. Robinson
kicked and punched her while trying to take the gun. Robinson
grabbed the gun and walked away, as defendant fled down the
incline.
Defendant stated that she obtained the gun at a gun shop,
while she was residing in Georgia. She said she purchased the gun
for her protection. She kept the gun in a leather storage bag in
the glove compartment of her car, where it remained unused until
the night of the shooting.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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On the driveway leading to the scenic overlook, the police
located a .22 caliber, five-shot, single-action revolver with
three spent cartridges and two live rounds. The leather storage
bag for the gun was later recovered from underneath the driver's
seat in the car.
At the trial, defendant repeated the account that she provided
to the investigating officers. She said Robinson had repeatedly
asked her to marry him to avoid deportation, and on the night of
the shooting, they argued over her refusal to marry him. She also
claimed that when Robinson attacked her, he accused her of allowing
him to be deported.
Robinson denied ever asking defendant to marry him. He said
defendant had proposed to him, but he rejected the proposal after
he spoke with an immigration attorney, who told him that getting
married would not help him with his immigration issues. Robinson's
immigration attorney testified that Robinson had been a lawful
resident of the United States since the 1980s, and he had a valid
defense to his deportation under the immigration laws.
The jury evidently credited the State's proofs, rejected
defendant's claim of self-defense, and found defendant guilty of
attempted murder and the weapons charges. The judge sentenced
defendant for the attempted murder to fifteen years of
incarceration, subject to the eighty-five percent period of parole
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ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-
7.2, and imposed a concurrent seven-year prison term for the
second-degree weapons offense.
Defendant appealed from the judgment of conviction dated June
28, 2010. We affirmed defendant's convictions and the sentences
imposed. State v. Hinds-Mohammed, No. A-2429-10 (App. Div. Oct.
16, 2012). Thereafter, defendant filed a petition for
certification with the Supreme Court. The Court denied the
petition. State v. Hinds-Mohammed, 213 N.J. 538 (2013).
On July 15, 2013, defendant filed a pro se petition for PCR.
The trial court assigned counsel to represent defendant, and
counsel filed an amended PCR petition, alleging that defendant had
been denied the effective assistance of trial counsel. Defendant
sought an evidentiary hearing on the petition.
The PCR court filed a written opinion and order dated March
26, 2015, in which the court concluded that defendant had not
presented a prima facie claim of ineffective assistance of counsel,
and defendant was not entitled to an evidentiary hearing on the
petition. This appeal followed.
On appeal, defendant raises the following argument:
THE PCR COURT ERRED IN DENYING HINDS-MOHAMMED
AN EVIDENTIARY HEARING, DESPITE THE FACT THAT
SHE DEMONSTRATED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
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We have thoroughly reviewed the record and conclude that
defendant's arguments are without sufficient merit to warrant
extended discussion. R. 2:11-3(e)(2). We affirm the order denying
PCR substantially for the reasons stated by the PCR court in the
opinion dated March 26, 2015. We add the following comments.
A hearing on a PCR petition is only required when a defendant
establishes "a prima facie case in support of [PCR]," the court
determines that there are disputed issues of material fact "that
cannot be resolved by reference to the existing record," and the
court finds that "an evidentiary hearing is necessary to resolve
the claims for relief." R. 3:22-10(b); see also State v. Porter,
216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), an
evidentiary hearing on a PCR petition is only required when a
defendant presents a prima facie case for relief).
As stated previously, defendant raised a claim of ineffective
assistance of counsel. To prevail on such a claim, a defendant
must meet the two-prong test established in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland
test requires a defendant to show that his or her attorney's
performance was deficient. Strickland, supra, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693.
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To do so, a defendant must establish that counsel's alleged
acts or omissions "were outside the wide range of professionally
competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.
2d at 695. This requires a showing "that counsel made errors so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693.
To satisfy the second prong of Strickland, the defendant
"must show that the deficient performance prejudiced the defense."
Ibid. The defendant must establish "a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698.
Here, defendant claims her trial attorney was deficient
because counsel: failed to effectively cross-examine the State's
witnesses; did not object to the parties' history of domestic
violence; failed to retain an expert; did not object to the State's
use of a mannequin to demonstrate how the shooting took place; did
not object to the testimony of Robinson's immigration attorney;
and failed to object to the alleged "net opinion" by the State's
expert witness, Dr. Howard Gilman.
The PCR judge rejected these claims. The judge found that
defense counsel's cross-examination of the State's important
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witnesses was "comprehensive and systematic." The judge determined
that defense counsel's use of the parties' history of domestic
violence was a trial strategy that allowed defense counsel to
attempt to show that "defendant was right to fear the victim and
[support] the defendant's argument that she acted in self-
defense."
The judge rejected defendant's claim that trial counsel was
deficient because he did not retain a forensic, ballistic, or
medical expert to counter the testimony of Dr. Jaroslaw W.
Bilaniuk, Robinson's treating surgeon, with regard to the location
of the shot and the likelihood it would result in death. The judge
noted that there was overwhelming evidence presented by the State's
two expert witnesses concerning the trajectory of the bullet,
which was corroborated by a CAT Scan.
The judge observed that it would have been "very difficult"
for defense counsel to retain an expert to counter the testimony
of the State's experts. Furthermore, because the experts'
testimony largely corroborated Robinson's version of the events,
the judge found that it was a reasonable trial strategy for defense
counsel to argue instead that the "use of deadly force was needed
in self-defense."
The judge also rejected defendant's claim that her attorney
erred by failing to object to the use of the mannequin to
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demonstrate how the shooting occurred, and by using the mannequin
in support of the defense case. The judge noted that in defendant's
direct appeal, we rejected defendant's contention that the State's
use of the mannequin was improper. Hinds-Mohammed, supra, No. A-
2429-10 (slip op. at 17-18). The judge pointed out that defense
counsel had used the mannequin in an attempt to prove that Robinson
took the gun from defendant and used it to fire at her.
In addition, the judge found that defense counsel did not err
by failing to object to the testimony of Robinson's immigration
attorney. The judge noted that it appeared there was no reason for
defense counsel to object. The attorney's testimony was not hearsay
because it was not offered for its truth. Moreover, the record
indicates that the State presented the testimony to show that
Robinson believed he would not gain any immigration benefit if he
married defendant.
The judge further found that trial counsel's failure to object
to the alleged "net opinion" of Dr. Gilman was not erroneous. The
judge noted that Dr. Gilman's alleged improper opinion was provided
in response to a question posed by defense counsel on cross-
examination, not in response to a question on direct examination.
The judge nevertheless stated that it appeared that Dr. Gilman did
not offer a "net opinion."
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We are therefore convinced that the PCR judge correctly found
that an evidentiary hearing was not required on defendant's
petition. The record supports the judge's findings and his
conclusion that defendant did not present a prima facie case of
ineffective assistance of counsel. Moreover, there were no
disputed issues of fact that the judge could not resolve by
reference to the existing record, and an evidentiary hearing was
not required to address defendant's claims. Porter, supra, 216
N.J. at 355 (citing R. 3:22-10(b)).
Affirmed.
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