STATE OF NEW JERSEY VS. WOODROW MILLER (10-06-1174, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5562-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WOODROW MILLER,
Defendant-Appellant.
________________________
Argued October 7, 2019 – Decided November 13, 2019
Remanded by Supreme Court June 1, 2021.
Resubmitted June 22, 2021 – Decided July 12, 2021
Before Judges Fasciale, Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 10-06-1174.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the briefs).
PER CURIAM
We previously reversed a May 24, 2018 order denying defendant's petition
for post-conviction relief (PCR). See State v. Miller, No. A-5562-17 (App. Div.
Nov. 13, 2019) (concluding defendant's trial counsel rendered ineffective
assistance by failing to conduct a meaningful pre-trial investigation). On
September 9, 2020—while the State's petition for certification was pending—
the Supreme Court granted the State's motion to remand the matter to the trial
court to conduct a "supplemental [PCR] evidentiary hearing, to make factual
findings regarding . . . new information and material provided to the Supreme
Court in the first instance." The Court retained jurisdiction because "the petition
for certification and [the State's] motion to expand the record remain[ed]
pending."
On remand to the trial court, the PCR judge took testimony from several
witnesses, considered documentary evidence, and rendered written findings of
fact. The judge explained that she needed to determine if defendant's trial
counsel consulted a forensic pathologist in defense of the charges, and whether
counsel "requested and was denied permission by the Office of [the] Public
Defender [(OPD)] to retain a forensic pathologist." 1 With this focus, the judge
1
In our previous opinion—which the State did not challenge on remand—we
pointed out that the ineffectiveness included not consulting or calling other
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found that the OPD retained Mark L. Taff, M.D., a forensic pathologist, but that
there existed "no evidence that [defendant's trial counsel] requested the retention
of a second expert in the field of forensic pathology in accordance with OPD's
guidelines, nor was a second forensic pathologist in fact consulted or retained
in [d]efendant's case."
On June 1, 2021, the Supreme Court granted the State's petition for
certification, and summarily remanded this matter to us to reconsider our
November 13, 2019 judgment "in light of the [PCR] judge's remand opinion and
the record, as expanded" by the Court. We permitted counsel to submit
simultaneous merits briefs addressing their respective positions on this remand.
On this remand, the State argues:
POINT I
THE REMAND [JUDGE'S] FINDINGS
UNEQUIVOCALLY DEMONSTRATE THAT TRIAL
COUNSEL CONSULTED WITH A FORENSIC
EXPERT.
A. Dr. Mark Taff, M.D., Authored A Report And
Consulted With Trial Counsel Prior To The
Commencement Of [Defendant's] Trial.
experts too, such as a forensic psychologist, a blood-spatter expert, and a
ballistics expert. Id. at 14-20. These failures were part of the inadequate pre-
trial investigation as explained in our prior opinion. Ibid.
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B. Trial Counsel Was Not Required To Consult
With Or Retain A Second Expert.
i. [Defendant] is barred from raising
this issue for the first time on
remand.[2]
ii. [Defendant] has provided no
evidence that trial counsel was
required to retain a second expert.
Having considered the expanded record and new findings, especially as to the
PCR judge's findings that defendant's trial counsel failed to follow OPD protocol
when pursuing expert opinions, we remain convinced that defendant received
ineffective assistance of counsel.
The expanded remand record demonstrates that the OPD initially retained
Hope Mitchell to represent defendant. The PCR judge found her credible. She
testified that she hired Dr. Taff and he submitted a report, which she remembered
being in defendant's file when trial counsel, then a pool attorney, took over for
her as defendant's trial counsel due to a conflict of interest. When the OPD
2
The State's assertion that defendant is barred from raising the issue of whether
trial counsel was required to consult a second expert is misplaced. The Supreme
Court remanded this case to the PCR judge for additional findings of fact
regarding defendant's counsel's purported discussions with Dr. Taff ahead of
trial. The PCR judge determined that trial counsel failed to follow OPD
guidelines to retain a second expert. The issue is therefore properly before us
on appeal.
4 A-5562-17
transferred the file to trial counsel, Mitchell discussed the case with him,
including Dr. Taff's report. Indeed, trial counsel—who the PCR judge also
found credible—testified that he reviewed the report of Dr. Taff and "recalled
that it was not helpful to [d]efendant." On remand, the report could not be
located. Trial counsel remembered consulting with Dr. Taff in preparation for
the trial. We have no reason to second guess the PCR judge's finding that trial
counsel consulted with Dr. Taff in preparation for the trial. 3
Accepting that trial counsel consulted Dr. Taff in advance of the trial, we
remain steadfast in our conclusion that trial counsel rendered ineffective
assistance of counsel by failing to call an expert, particularly a forensic
pathologist, to testify at trial, instead relying on his ability to cross-examine Dr.
Shaikh. And as we previously noted, trial counsel's cumulative errors, including
the failure to call or consult a blood-spatter, ballistic, or psychological expert—
especially where time and manner of death were at issue—denied defendant a
fair trial.
3
We do point out, however, that in our previous opinion, we stated that trial
counsel, who testified at the first PCR hearing, "could not recall whether he ever
consulted—informally or formally—with a forensic pathologist in this case."
Id. at 15. This is different than his testimony during the remand hearing, but we
will not second guess the judge's credibility findings.
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Additionally, as the PCR judge found, trial counsel testified that he had
an informal conversation about "the retention of a second expert" with Joseph
Russo, who was at that time an assistant public defender in charge of the
statewide appellate section of the OPD. Russo did not recall having that
conversation but testified during the remand proceedings about the OPD
guidelines for retaining experts. Trial counsel testified that he was familiar with
the requirements and admitted that he had failed to submit written requests for
an expert. The PCR judge explicitly found that trial counsel failed to follow the
guidelines.
This [PCR judge] finds that [trial counsel] failed to
properly request the retention of a second forensic
pathologist in [d]efendant's matter, in contravention of
the OPD [g]uidelines. Section VIII of the New Jersey
[OPD] Pool Attorney Guidelines provides, "[n]o expert
or other service provider may be retained without prior
written approval from Public Defender Management
through Regional Deputy Defender or Managing
Attorney. A request to hire an expert not routinely used
by the [OPD] should be accompanied by a copy of the
expert's curriculum vita[e]."
Although the witnesses provided more detail about the guidelines for retaining
an expert, we have no reason to second guess the PCR judge's finding that trial
counsel did not properly make the request. Indeed, the PCR judge further found
that "there is no evidence presented that any due diligence was conducted for
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the purpose of obtaining a second expert." Importantly, the PCR judge found
there was no evidence that "a second forensic pathologist [was] in fact consulted
or retained in [d]efendant's case."
This is not a situation where counsel's ineffectiveness amounts to solely a
failure to consult with or retain a second pathologist. As we pointed out in our
earlier judgment, "neither side undertook a psychological investigation of the
victim, including her diary entries." Id. at 20. As part of his petition for PCR,
defendant produced testimony from and a report by a forensic pathologist and
neuropathologist, Dr. Zhongxue Hua, M.D., PhD. As to Dr. Hua, we quote from
our previous opinion.
Dr. Hua said that the death was not a homicide.
Based on the available investigative material, he
instead concluded that the manner of death was
indeterminate. He noted the police investigation was
poorly executed because there was no DNA analysis,
ballistic testing, nor blood-[spatter] analysis. He said
that it was undetermined whether the single "recovered
projectile could be from either the fatal shot to [the
victim's] head, the non-fatal shot to [the victim's] left
hand, or [the] non-fatal shot to [defendant's] left
forearm."
Dr. Hua said it was possible that three shots were
fired from the gun: into defendant's left forearm, into
the victim's left hand, and into the victim's head. He
indicated that the State did not measure the distance
from the wound to the victim's hand, and that it was not
examined properly or addressed by "gross examination,
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histopathology examination, and/or gunpowder residue
testing." He noted that Dr. Shaikh did not perform a
histopathology to determine the age of the victim's
bruises to rule out "the probability of any pre-existing
bruises," which Dr. Hua stated could have "occurred
before, during, or after [the victim's] two gunshot
wounds."
Dr. Hua admonished Dr. Shaikh [the State's
pathologist] for disregarding the diary before or during
a final determination of the manner of death. Dr. Hua
emphasized that Dr. Shaikh dismissed the notebooks
without offering any scientific basis or forensic
reasoning. Instead, Dr. Hua recommended a formal
consultation regarding the books with a forensic
psychologist or psychiatrist. He said Dr. Shaikh
ignored the victim's state of mind, and that his
conclusion as to the manner of death was simply
"wrong."
Dr. Hua examined over 300 photographs and
placed significant importance on three, which depicted
the clothing that defendant wore during the shooting.
Blood drips appeared only on the left side, which Dr.
Hua found significant because defendant's gunshot
wound was on that side. But Dr. Hua believed that the
pictures did not support the State's theory—that
defendant had the victim in a headlock and shot her.
According to Dr. Hua, if that theory was correct, blood-
[spatter] would have appeared on the right side of his
clothing. The physical evidence therefore did not show
that defendant—as the State contended—laid on top of
the victim, placed the victim in a headlock, and shot her
on the right side of her head.
Although Dr. Shaikh opined that the death was
instantaneous, Dr. Hua said that, scientifically, that
could not be correct. Dr. Hua explained that there was
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no direct damage to the main portion of the victim's
brain structure, meaning that involuntary breathing and
blood circulation would have continued after the head
wound. Indeed, defendant told the 9-1-1 dispatcher that
the victim was still breathing, and the record reflects
that hospital personnel treated her for hours. Dr. Hua
concluded that the bruising could have occurred after
the victim was shot. According to Dr. Hua, the timing
of the victim's neck wounds would have been common
knowledge to qualified medical examiners.
Trial counsel also testified at the PCR hearing,
verifying that his defense was that the victim
committed suicide. Even though trial counsel conceded
that Dr. Shaikh was not a "strong expert," he did not
consult a blood-[spatter] expert. He admitted that a
blood-[spatter] expert would have helped the defense to
show where defendant was standing when the victim
shot him, and he stated that he did not consult ballistic
or psychological experts.
....
. . . Dr. Hua arguably undermined the scientific
basis for Dr. Shaikh's opinions as to the manner and the
time of death due to the lack of forensic evidence. He
stressed the importance of blood only appearing on the
left side of defendant's clothing, indicating that
defendant was shot in the arm while standing. Dr. Hua
emphasized that the absence of blood-[spatter] on
defendant's right side signified he was not laying on top
of the victim, as the State contended. And he
highlighted the victim's own words in her diary in
which she stated she wanted to kill herself and
defendant. Such evidence would have likely raised
reasonable doubt even before introducing rebuttal
testimony from a forensic psychologist, a ballistic
expert, or a blood-[spatter] expert.
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[Id. at 8-16]
We are troubled by the PCR judge's written findings of fact pertaining to
the informal conversation trial counsel had with Russo about retaining or
consulting with a second pathologist. Trial counsel remembered the
conversation; Russo did not. Even though counsel testified he talked to Russo
about "the retention of a second expert," the PCR judge stated that whether the
conversion occurred was "of no moment." Instead, the PCR judge stated that
"[i]f [trial counsel] believed that a second expert should have been retained,"
[counsel] did not follow the protocol for doing so. That begs the question of
whether trial counsel believed consulting with a second expert was warranted.
Under the totality of the circumstances of this case, however, we conclude
trial counsel's failure to call a forensic pathologist and failure to properly request
second pathologist amounted to ineffective assistance of counsel, which
determination is further supported by trial counsel's failure to consult with a
forensic psychologist, a ballistic expert, or a blood-spatter expert, as we
explained in our prior decision.
Having considered the remand proceedings, the supplemented record, and
the PCR judge's findings of fact, we stand by our earlier determination and
remand for a new trial.
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Reversed and remanded for a new trial. We do not retain jurisdiction.
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