STATE OF NEW JERSEY VS. JANEAN OWENS(07-01-00155 AND 07-01-00158, MIDDLESEX COUNTY AND Â 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NOT FOR PUBLICATION WITHOUT THE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-3871-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JANEAN OWENS,
Defendant-Appellant.
______________________________
Submitted November 7, 2016 – Decided June 8, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 07-01-00155 and 07-01-00158.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kisha M. Hebbon, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Janean Owens appeals from a January 29, 2015
Criminal Part order denying her petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm.
In January 2007, a Middlesex County grand jury charged
defendant and a co-conspirator in a ten-count indictment with
murder and other offenses for shooting the homicide victim in the
back of the head and disposing of his body. In 2009, a jury found
defendant guilty of first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a); third-degree conspiracy to commit theft by unlawful
taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3; two counts of third-
degree theft by unlawful taking, N.J.S.A. 2C:20-3; second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
and fourth-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(a). On the aggravated manslaughter count, the court
sentenced defendant to a custodial term of twenty-five years
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). The
court imposed four-year terms on counts three, five and six,
concurrent to each other but consecutive to the sentence for
aggravated manslaughter; a concurrent ten-year term with five
years of parole ineligibility on count eight; a concurrent five-
year term on count nine; and a consecutive eighteen-month custodial
term on the certain persons not to have weapons count.
On direct appeal, we affirmed defendant's convictions,
reversed the decision to make the four-year aggregate sentence for
the theft offenses consecutive to the sentence on the aggravated
2 A-3871-14T3
manslaughter count, and vacated the sentence for possession of a
weapon for an unlawful purpose, which should have been merged.
State v. Owens, No. A-0803-09 (App. Div. Sept. 4, 2012) (slip op.
at 2). The Supreme Court denied certification. State v. Owens,
215 N.J. 485 (2013).
Five months after the Supreme Court denied certification,
defendant filed her PCR petition. In her petition, she alleged
her trial counsel was ineffective because he failed to forcefully
advocate on her behalf when she was sentenced. She also alleged
her due process rights were violated when a defense witness
testified in "clearly identifiable prison clothing," and her right
to a fair and impartial jury was violated because Juror Number 1
fell asleep several times during the trial.
After defendant filed her PCR petition, the court appointed
counsel, who filed a memorandum on behalf of petitioner in support
of her petition. The memorandum raised two additional points:
trial counsel was ineffective for failing to raise the defenses
of diminished capacity and duress. Defendant sought an evidentiary
hearing on these issues. Following oral argument, the court denied
defendant's petition in a January 29, 2015 order.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MERITORIOUS PETITION FOR POST[-]CONVICTION
3 A-3871-14T3
RELIEF OR, AT LEAST, AFFORDING HER AN
EVIDENTIARY HEARING TO DETERMINE THE MERITS
OF HER CONTENTION THAT SHE WAS DENIED THE
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. The Prevailing Legal
Principles Regarding Claims Of
Ineffective Assistance Of Counsel,
Evidentiary Hearings And Petitions
For Post[-]Conviction Relief.
B. Trial Counsel Rendered
Ineffective Legal Representation By
Virtue Of His Failure To Raise The
Defense Of Diminished Capacity As A
Result Of Defendant's Intoxication
During The Incident In Question.
C. The Trial Counsel Rendered
Ineffective Legal Representation By
Virtue Of His Failure To Raise The
Defense Of Duress Which Resulted
From Defendant's Relationship With
Co-defendant [].
D. Defendant Is Entitled To A
Remand To The Trial Court To Afford
Her An Evidentiary Hearing To
Determine The Merits Of Her
Contention That She Was Denied The
Effective Assistance Of Trial
Counsel.
For the reasons that follow, we reject these arguments and
affirm.
The facts underlying defendant's convictions are detailed in
our previous opinion and need not be recounted in their entirety.
We repeat only those facts relevant to the issues on this appeal:
On the evening of Thursday, October 19,
2006, Owens went to a bar in Carteret for
4 A-3871-14T3
drinks with Timisha Sanford, whom she had
known for about ten years. Robert Funderberk,
also known as "EZ," was at the bar and bought
drinks for Owens. She knew Funderberk and
told Sanford that "he liked her."
When the bar closed at 2:00 a.m., Owens
and Sanford left together but headed in
different directions. After Sanford had
walked a few blocks, Owens "rode up" to her
in a gray Suburban driven by Funderberk.
Owens asked Sanford to ride with them to
purchase cigarettes. Funderberk drove them
to Owens' apartment to pick up co-defendant
Keith McBride, also known as "Special" or
"SP."
When they arrived at the apartment, Owens
went upstairs to get McBride. They returned
about six or seven minutes later. Owens and
McBride then stood behind the Suburban talking
"for a minute or two." Sanford exited the
vehicle "to see what they [were] talking
about. What was going on." McBride told
Sanford "to handle it" and "[g]ave her
something wrapped up in a red towel." Based
on the weight, Sanford thought the towel
contained a gun. She said that she "wasn't
doing it," and Owens "snatched" the package
from her and told her "she was going to get
[Funderberk]." Sanford thought they were
talking about a robbery.
Owens got back into the Suburban and sat
in the back seat behind Funderberk, next to
Sanford. McBride sat in the front passenger
seat. While Funderberk was driving, Sanford
saw that Owens "had a gun in the back of
[Funderberk's] head and she asked [McBride]
should she pull it." He said "trill," which,
according to Sanford, is slang for "yes."
Owens then pulled the trigger. Funderberk
"[s]lumped to the side," "ran off the road,"
and the vehicle stopped.
5 A-3871-14T3
McBride "said what the fuck did you do."
Owens helped McBride move Funderberk to the
front passenger seat. Owens and McBride then
got in the back seat, and McBride told Sanford
to drive to Newark. According to Sanford,
Owens was acting "[l]ike herself" and was
"[n]ot really too bothered."
After they arrived in Newark, McBride
told Sanford to stop the Suburban near a
building because it was a "good place" for the
body. Owens assisted McBride in getting the
body out of the vehicle and placing it next
to a dumpster. They drove away, but
eventually abandoned the Suburban and walked
to the home of Owens' aunt.
[Owens, supra, No. A-0803-09 (slip op. at 2-
4) (alterations in original).]
Defendant confessed to police after they arrested her, though
she claimed the gun "just really went off" while she and McBride
were robbing the victim. Id. (slip op. at 7). She later moved,
unsuccessfully, to suppress her confession. During the hearing
on her motion, she presented the testimony of Dr. Gerald Cooke, a
clinical and forensic psychologist.
According to Cooke, Owens had a borderline
personality disorder with antisocial and
paranoid features, alcohol and drug
dependency, and "adjustment disorder with
mixed anxiety and depressed mood." He opined
that Owens was "very susceptible to being
manipulated by others, though she can also
manipulate others as well." He also described
her as "easily distracted," and as having
"very great difficulty sustaining her
attention." He testified that, if Owens
wanted to terminate questioning, she "doesn't
know how to go about actually doing that, to
6 A-3871-14T3
be assertive to follow through on what she
wants."
Cooke outlined the results of IQ testing,
which placed Owens in "the borderline range
of intellectual functioning," "at about the
fifth percentile of the population." But
because she had a tendency to "give[] up
almost before she starts," Cooke concluded
that the IQ score "really underestimate[d] her
ability" and that she was "brighter than
that." He estimated Owens' intellectual
function as in the low average range.
[Id. (slip op. at 9) (alterations in
original).]
On appeal, defendant asserts she should have been granted an
evidentiary hearing on her arguments asserting her trial counsel
was ineffective for failing to assert defenses of diminished
capacity and duress; and the trial court erred by finding to the
contrary. We disagree.
We review defendant's arguments under well-known standards.
To prove ineffective assistance of counsel, a defendant must
satisfy the Strickland two-part test by demonstrating "counsel's
performance was deficient," that is, “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment"; and "there is 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, 687, 694, 104 S. Ct. 2052,
7 A-3871-14T3
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v.
Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima
facie claim of ineffective assistance of counsel, they are entitled
to a hearing on their claims. State v. Preciose, 129 N.J. 451,
462 (1992); R. 3:22-10(b).
A defendant must establish by a preponderance of the credible
evidence that he or she is entitled to the relief requested in the
PCR petition. State v. Nash, 212 N.J. 518, 541 (2013) (citations
omitted). To sustain that burden, the defendant must allege and
articulate specific facts that "provide the court with an adequate
basis on which to rest its decision." State v. Mitchell, 126 N.J.
565, 579 (1992). In other words, a defendant must do more than
make bald assertions that he was denied effective assistance of
counsel; he must allege specific facts sufficient to demonstrate
counsel's alleged substandard performance. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199(1999).
Here, defendant first argues her trial counsel was
ineffective for failing to raise the defense of diminished capacity
"as a result of [her] intoxication during the incident in
question." She asserts she informed an expert as well as the
police during her interrogation that she had consumed large
quantities of alcohol immediately before the shooting and that she
8 A-3871-14T3
consumed alcohol and drugs on a daily basis. Her specific
allegation is her attorney "at no time . . . call[ed] the expert,
namely, Dr. Gerald Cooke, to testify at trial about defendant's
intoxication."
It is difficult to determine whether defendant is claiming
her trial counsel should have pursued a defense based on diminished
capacity, intoxication, or both. Defendant cites N.J.S.A. 2C:4-2
and asserts the statute governs the diminished capacity defense.
The statute permits a defendant to admit evidence she "suffered
from a mental disease or defect . . . whenever it is relevant to
prove that the defendant did not have a state of mind which is an
element of the offense." Ibid. Defendant identifies no mental
disease or defect specifically, but rather discusses her
intoxication on the night of the homicide, and asserts her trial
attorney should have called Dr. Cooke as a witness to testify
about her intoxication.
Defendant's argument overlooks N.J.S.A. 2C:2-8(c), which
provides that "[i]ntoxication does not, in itself, constitute
mental disease within the meaning of chapter 4." To the extent
defendant is asserting trial counsel should have asserted a defense
of intoxication, the defense fails for two reasons. First, though
Dr. Cooke diagnosed defendant with alcohol and drug dependency,
he did not opine she was intoxicated to the extent her "mental or
9 A-3871-14T3
physical capacities . . ., because of the introduction of
intoxicating substances into the body, [were] so prostrated as to
render [her] incapable of purposeful or knowing conduct." State
v. Cameron, 104 N.J. 42, 58 (1986). Rather, he opined, "[u]nder
the circumstances of intoxication, combined with being surprised
by the plan to rob [the victim] and the presence of a gun, it is
consistent that she would have felt threatened and intimidated by
[the co-defendant], and that this would have been a contributing
factor to her commission of the offense." Second, "[w]hen
recklessness establishes an element of the offense, if the actor,
due to self-induced intoxication, is unaware of a risk of which
he would have been aware had he been sober, such unawareness is
immaterial." N.J.S.A. 2C:2-8(b); see also, State v. Baum, 224
N.J. 147, 162 (2016). Defendant has not explained how intoxication
would have changed the outcome of her conviction for aggravated
manslaughter.
Defendant's second argument — her attorney was ineffective
for failing to assert the defense of duress by the co-defendant —
is without sufficient merit to warrant extended discussion. R.
2:11-3(e)(2). The trial court, before trial, excluded Dr. Cooke's
testimony concerning defendant's mental health as to the defense
of duress. The court did not exclude the doctor's testimony
concerning certain other issues. Defendant has not appealed the
10 A-3871-14T3
trial court's pre-trial ruling. Moreover, "[i]n a prosecution for
murder, the defense of duress is only available to reduce the
degree of the crime to manslaughter." N.J.S.A. 2C:9-3(b).
Defendant's speculation the jury might have found her guilty of a
lesser degree of manslaughter is precisely the type of bald
assertion that is inadequate to sustain an ineffective-assistance
claim. Cummings, supra, 321 N.J. Super. at 170.
Affirmed.
11 A-3871-14T3