Opinion
DOCKET NO. A-0278-12T4
02-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSE TIMMENDEQUAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 94-10-1088. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jesse Timmendequas was convicted of knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and four); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count three); and first-degree aggravated assault, N.J.S.A. 2C:14-2(a)(1) and (3) (counts five, six, seven, and eight). On July 20, 1997, the jury also sentenced defendant to death. The death penalty was repealed on December 17, 2007, resulting in the commutation of defendant's sentence to life without parole. Defendant's convictions and sentence had been earlier affirmed by the Supreme Court in State v. Timmendequas, 161 N.J. 515 (1999) (conviction and sentence), and 168 N.J. 20 (proportionality of sentence), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Defendant's petition for post-conviction relief (PCR) promptly followed the United States Supreme Court's denial of certification on his appeal from our Supreme Court's affirmance of his sentence. The Law Division dismissed the petition as moot since defendant no longer faced the death penalty. On appeal, however, we affirmed in part and remanded in part, finding that six of defendant's points remained viable. State v. Timmendequas, No. A-3355-07 (App. Div. June 14, 2011) (slip op. at 4).
On remand, Judge Robert C. Billmeier denied the petition in its entirety, concluding that since defendant failed to demonstrate a prima facie case, no evidentiary hearing was necessary. This appeal followed. We affirm.
I
The details of the child victim's brutal murder need not be repeated here. After the crime, defendant hid the victim's body in an empty toy box, drove to a nearby park, then concealed it in some tall weeds. He attempted to wipe away any traces of the killing with cleaning fluids.
At the time, defendant held a job, lived with roommates, and owned a pickup truck, a boat, and a puppy. Although he dropped out of school in the eleventh grade, while ranked in the very bottom of his class, defendant later obtained a GED. While interviewing the victim's neighbors, including defendant, about the child's disappearance, police observed him to be "shaking and perspiring." Police inquired about his prior record, which included two sex offense convictions. He consented to an interview at the station and, on arrival, signed a written waiver of his Miranda rights as well as a consent to the search of his truck. Defendant made no inculpatory statements, and officers found no inculpatory evidence in his vehicle. He was released and drove himself home.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Later the following morning, while officers were conducting a consent search of defendant's new boat, kept parked outside his home, they noticed three garbage cans had been placed on the curb. Defendant consented to a search of the garbage cans, which produced incriminating items, including scraps of the victim's clothing.
On return to the station, defendant signed new waivers of his Miranda rights and was re-interviewed. He confessed, signed a written statement, and directed police to the body. When the autopsy results were disclosed to him a while later, he gave an even more detailed confession.
Early in the guilt phase of the trial, counsel made the "alias motion," an application for the victim and her family to be identified by aliases because of the killing's notoriety. The motion generated "public outcry." As a result, the Office of the Public Defender removed the attorney who initiated the motion from the defense team, and defendant's remaining counsel withdrew it.
During the guilt phase, the State introduced, in addition to defendant's statements and the clothing scraps, extensive forensic evidence. This included the victim's DNA, taken from the rug in defendant's bedroom and from a leather belt. Bite marks on his hand matched the child victim's teeth.
In the penalty phase, defendant introduced expert forensic psychiatric testimony that he functioned in the borderline mental retardation range based on his childhood I.Q. score of 74. On July 27, 2004, years after his first report, defendant's expert authored a second report that defendant relied upon in his PCR application. The expert did not meet with defendant in order to prepare either report.
We use the term employed at trial.
In this second report, defendant's expert characterized him as functioning within the mental retardation range as currently defined. He opined that defendant's limited intellectual functioning would impair his ability to waive his Miranda rights and questioned whether defendant could "provide an accurate recitation of the events . . . orally and in writing."
The forensic psychologist who testified for the State in the penalty phase said defendant's I.Q. did not indicate mental retardation, only placing him in the borderline range. The State's expert also testified that defendant's conduct after the murder and his early statements were steps taken by a person acting logically to conceal the crime and prevent detection.
We do not have copies of either expert report prepared for the penalty phase of defendant's trial. The information we have gleaned is taken from the briefs.
In his direct appeals, defendant alleged numerous instances of prosecutorial misconduct in both the guilt and penalty phases of trial. Our Supreme Court agreed that some of these were indeed "flagrant misconduct," but found overall that "[i]n most instances of misconduct, the court sustained proper objections by defense counsel and offered curative instructions." Timmendequas, supra, 161 N.J. at 588. As the Court ultimately concluded, in the context of the overwhelming evidence against defendant, none of the alleged misconduct deprived him of a fair trial. Id. at 589.
Defendant also contended that his Miranda waivers were invalid, based in part on his "mental limitations." Id. at 605. Defendant's argument, that the totality of the circumstances in which his statements were obtained required suppression, included consideration of his mental condition. Ibid. The Court found overall that the evidence did not support any claim that he was intellectually incapable of consenting to searches and waiving his Miranda rights. Id. at 580, 618.
After the trial, defendant sought to be transported to a neurologist for MRI and CT scans because defendant's expert interpreted a 1995 physical examination as "potentially" indicating a problem with defendant's brain, such as a "vascular insult," a "congenital abnormality," or a "post[-]traumatic insult." This request was also denied at both PCR hearings. The testimony regarding the results of the physical examination was also mentioned in the Court's opinion. Id. at 547.
Defendant's PCR petition requested that he be permitted to interview the jurors who sentenced him to death. This claim was based on reports that some were crying as they rendered the verdict.
The PCR application also sought to compel review of the prosecutor's entire file. Prior to the first PCR hearing, however, the State made its file available with the exception of work product.
II
Judge Billmeier heard argument on all the issues identified in our remand as surviving the death penalty's abolition. They are the same points now raised on appeal:
POINT I
TRIAL DEFENSE COUNSEL WERE INEFFECTIVE, UNDER STANDARDS SET BY THE FEDERAL AND STATE CONSTITUTIONS, IN THAT THEY DID NOT OFFER PROOF OF DEFENDANT'S MENTAL RETARDATION DURING EITHER THE JACKSON-DENNO HEARING OR THE GUILT PHASE OF TRIAL. U.S. CONST., AMEND VI, XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
POINT II
TRIAL DEFENSE COUNSEL WERE INEFFECTIVE UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS, IN NOT OBJECTING TO PROSECUTORIAL MISCONDUCT DURING THE GUILT PHASE OF THE TRIAL, AS THEIR FAILURE TO OBJECT CAUSED THE NEW JERSEY SUPREME COURT TO EVALUATE THAT MISCONDUCT UNDER A "PLAIN ERROR" STANDARD. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
POINT III
THE PCR COURT ERRED IN DENYING DEFENDANT'S MOTIONS TO INTERVIEW JURORS AND TO INSPECT THE PROSECUTOR'S FILE.
POINT IV
TRIAL DEFENSE COUNSEL WERE INEFFECTIVE, UNDER STANDARDS SET BY THE FEDERAL AND STATE CONSTITUTIONS, IN WITHDRAWING THEIR MOTION TO HAVE THE VICTIM AND HER PARENTS IDENTIFIED BY ASSUMED NAMES DURING THE TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
POINT V
THE PCR COURT ERRED IN DECLINING TO ORDER THAT THE DEFENDANT BE TRANSPORTED FOR NEUROLOGICAL EXAMINATIONS.
POINT VI
THE CUMULATIVE EFFECT OF THE ERRORS NOTED IN DEFENDANT'S PETITIONS REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.
We review claims of ineffective assistance of counsel under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must demonstrate both that his counsel's performance was deficient and that "a reasonable probability [exists] that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A defendant must demonstrate his right to relief by a preponderance of the credible evidence, and must demonstrate his right to an evidentiary PCR hearing by establishing a prima facie case. Rule 3:22-10(b); State v. Preciose, 129 N.J. 451, 459-63 (1992). We review the Law Division judge's legal decisions de novo. State v. Nash, 212 N.J. 518, 540-41 (2013). After doing so, in light of the record, we agree with Judge Billmeier's conclusions.
A.
Like Judge Billmeier, we question the reliability of defense expert's post-death-sentence second report, which concluded that defendant was mentally retarded and unable to meaningfully waive his Miranda rights or to consent to the various searches. Although based on the same information, this new report came several years after the first. The expert did not testify in such a fashion at the penalty phase of defendant's trial.
Even if the definition of mental retardation changed in the intervening years, defendant's expert did not explain in his second report the reason his subsequent opinion regarding defendant's cognitive functioning was not contradicted by defendant's lifestyle. By that we mean that defendant: (1) having dropped out of eleventh grade, was able to obtain a GED, (2) maintained a driver's license, (3) purchased a pickup truck, (4) lived independently with roommates, (5) maintained employment, and (6) entered into a financing arrangement in order to purchase a boat. Additionally, the expert's report does not explain how defendant, despite his alleged retardation, was able to take careful steps to conceal his crime. Other than his reliance on the expert's second report, defendant does not draw our attention to any portion of the pre-trial record supporting his claim of an inherent inability to meaningfully waive his Miranda rights or to consent to the searches of his vehicle and boat.
In the context of defendant's independent, seemingly unremarkable lifestyle, his childhood I.Q. of 74, standing alone, does not place in doubt his capacity to make voluntary, knowing, and intelligent waivers. That assessment is supported by federal law. See Colorado v. Connelly, 479 U.S. 157, 161, 165-67, 107 S. Ct. 515, 519, 520-22, 93 L. Ed. 2d 473, 480-81, 483-84 (1986) (citation omitted) (even though defendant suffered from "command hallucinations" that interfered with his "volitional abilities[,]" his waiver was voluntary since, "while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry" because "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary'"); Murphy v. Ohio, 551 F.3d 485, 514 (6th Cir. 2009) (holding that since (1) "[defendant]'s low intelligence alone does not make the officers' actions in questioning him coercive[,]" and (2) "[defendant] has failed to submit any other reasons that his statements were involuntary, absent police coercion, we find reasonable the conclusion . . . that [defendant] voluntarily waived his Miranda rights."); Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) ("That [defendant] had borderline retardation [] or 'low average intellect' [] is not dispositive. . . . Under the totality of the circumstances, the state courts' finding that [defendant's] waiver was knowing and intelligent was not unreasonable."); United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998) (holding that defendant's borderline I.Q. did not prevent knowing and intelligent waiver); Rice v. Cooper, 148 F.3d 747, 751 (7th Cir. 1998) (holding that mildly retarded defendant gave valid waiver where police had no reason to suspect that he did not understand the warnings); Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (determining that, despite defendant's I.Q. of 78, he gave a valid waiver because he received warnings several times both while in custody and for prior crimes).
Clark v. Mitchell, supra, collected the latter three federal cases. 425 F.3d at 284.
The conclusion that a childhood I.Q. of 74, without more, does not per se raise doubts about a person's capacity to make voluntary, knowing, and intelligent waivers is also supported by New Jersey law. State v. Cabrera, 387 N.J. Super. 81, 97-98, 102 (2006) (an eighteen-year-old defendant's approximate I.Q. of 65 did not render his Miranda waivers involuntary under the totality of the circumstances); State v. Carpenter, 268 N.J. Super. 378, 384-86 (1993) (a twenty-two-year-old defendant with an I.Q. of 71 and "the mental comprehension of a ten-year[-]old child" understood the simplified Miranda warnings provided and thus "knowingly and intelligently waived his privilege").
Furthermore, the Court, in discussing defendant's confessions and consents to search, observed that there was no "evidence indicating that defendant was so mentally deficient as to be incapable of comprehending his constitutional warnings." Timmendequas, supra, 161 N.J. at 618. Instead, the Court found, "[b]ased on the totality of the circumstances," that "defendant understood his rights and intelligently, knowingly[,] and voluntarily waived those rights over and over again. The record reveals a defendant who was alert and responsive and who confessed by his own free will." Ibid.
Defense expert's second report purports to invalidate defendant's ability to intelligently waive his Miranda rights because of its updated characterization of his I.Q. score. But this characterization, placing defendant within the range of mental retardation, does not meet the legal standard to nullify his waivers without more.
This new characterization did not alter the Court's analysis. Knowing defendant's background, the Court nonetheless found he had the capacity to intelligently, knowingly, and voluntarily waive his rights. Id. at 618. Thus, Rule 3:22-5 bars consideration of this point: "A prior adjudication upon the merits of any ground for [PCR] relief is conclusive."
B.
Defendant also contends that counsel's failure to object to unspecified "instances of misconduct during the guilt phase," "highly inflammatory testimony concerning the defendant's purported emotional state," and "the vast majority of the prosecutor's summation," establishes ineffective assistance of counsel. There were many instances of prosecutorial misconduct to which counsel did object. See Timmendequas, supra, 161 N.J. at 588-89. When the trial judge agreed, he sustained objections, at times giving curative instructions to the jury. Ibid.
Defendant's brief reiterates instances of prosecutorial misconduct that the trial judge addressed after objection and as a result of which the Court in its decision employed the harmless error standard of review. R. 2:10-2. Defendant argues on appeal, however, that because counsel failed to make additional objections, the Court applied the more-stringent standard of plain error, and therefore counsel was ineffective. Yet defendant does not specify instances where prosecutorial misconduct occurred without objection.
In any event, plain error review and harmful error review are both designed to avoid prejudice "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. As the comment following the rule indicates, they are "effectively interchangeable principles." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2015). The ultimate question is always whether the error complained of causes a reasonable doubt that the trial was fair. R. 2:10-2; State v. Macon, 57 N.J. 325, 338 (1971).
In fact, the Court broadly concluded, in addressing the instances of prosecutorial misconduct defendant raised on direct appeal, that, "[i]n view of the overwhelming evidence against defendant," no alleged instance of prosecutorial misconduct was "so prejudicial as to deprive defendant of a fair trial." Timmendequas, supra, 161 N.J. at 589 (guilt phase); id. at 596 (penalty phase).
To the extent the argument on appeal includes material already reviewed by the Court, Rule 3:22-5 bars further review by way of PCR: PCR relief will not be granted on grounds previously adjudicated on the merits. The few specific examples of prosecutorial misconduct defendant raises in this appeal are identical to those previously ruled upon in his direct appeals.
Furthermore, as the Court found, the strength of the State's proofs made it unlikely that the prosecutor's prejudicial comments had any effect on the jury's decision. Timmendequas, supra, 161 N.J. at 589 (guilt phase); Id. at 596 (penalty phase). Defendant states some generalities on appeal, such as that the "vast majority" of the prosecutor's closing statement was objectionable. Without elaboration, such a statement does not raise a reasonable doubt that the trial was fair. It does not provide us with instances where the Court's review would have employed a more stringent standard. Counsel did object to multiple specific instances of alleged prosecutorial misconduct, and, in any event, the objections would not have affected the outcome.
C.
Defendant also contends that the PCR court erred in denying as moot his requests to interview jurors and to inspect the prosecutor's file. The request to interview jurors mirrors the application made to the trial judge after defendant's conviction but before the death penalty was abolished. The original request stemmed from newspaper articles describing jurors crying during the penalty-phase verdict. That jurors would display emotion when rendering a death verdict is unremarkable. Since the jury's death sentence has been commuted to life without parole, the same sentence defendant would have received had he not been sentenced to death, we agree with Judge Billmeier that this point is now moot. See Transamerica Ins. Co. v. Nat'l Roofing, Inc., 108 N.J. 59, 64 (1987) ("When a court dismisses a matter as moot, it has found there is nothing to adjudicate.").
Pursuant to the murder statute effective at the time of defendant's sentencing in July 1997,
A person convicted of murder and who is not sentenced to death under this section shall be sentenced to a term of life imprisonment without eligibility for parole if the murder was committed under all of the following circumstances:
(a) The victim is less than [fourteen] years old; and[N.J.S.A. 2C:11-3(b)(3).]
(b) The act is committed in the course of the commission, whether alone or with one or more persons, of a violation of N.J.S.A. 2C:14-2 [(sexual assault)] or N.J.S.A. 2C:14-3 [(criminal sexual contact)].
Judge Billmeier also found moot defendant's application to inspect the prosecutor's file. Apparently, that was accomplished years earlier, with the exception of work product. Defendant does not identify any reason the judge's conclusion was erroneous. Neither point warrants further discussion. R. 2:11-3(e)(2).
D.
Defendant reasserts that his defense team's withdrawal of the alias motion constituted ineffective assistance. First, the Court stated that the trial court conducted many weeks of "extensive and careful" voir dire of potential jurors. Timmendequas, supra, 161 N.J. at 570. This included familiarizing the panel with defendant's prior criminal history. Id. at 535. After reviewing this voir dire process, the Court found that defendant "was tried by a fair and impartial jury at both the guilt and penalty phases of the trial." Id. at 572.
The facts of the case and the names of the parties involved were known to all but a few potential jurors. The extensive publicity surrounding defendant's crime made his name virtually synonymous with the victim's. For this reason, the trial judge gave all prospective jurors an overview of the case and its victim, to ensure defendant would not suffer the "gross prejudice" that would result from a juror making the connection later in the trial process. Id. at 569-70.
Potential jurors were also exhaustively queried regarding their ability to be fair despite the information they had gleaned from pre-trial publicity and the voir dire process itself. Given those circumstances, withdrawal of the alias motion was not prejudicial: it did not affect the outcome. Any concern regarding a juror's familiarity with the matter was ameliorated by the trial judge's searching screening of potential jurors, which would have eliminated those who could not be fair because of what they knew. Even if the motion had been granted, references to the victim's family by alias would have accomplished nothing.
E.
Defendant's application for neurological examination was originally made before the first PCR judge, who denied it. The Supreme Court denied defendant's motion to appeal the order or have it summarily reversed. Therefore, we agree with Judge Billmeier that this ground for PCR has already been adjudicated, and a final decision made on the merits. Further consideration is barred by court rule. See R. 3:22-5.
The order was not included in the appendix, although its issuance appears undisputed.
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F.
Lastly, defendant contends that the cumulative effect of the alleged errors requires reversal of his convictions. See State v. Orecchio, 16 N.J. 125, 134 (1954). Since we find no error occurred, harmless or otherwise, no cumulative error prejudiced the outcome. No prima facie case of ineffective assistance of counsel was established warranting any PCR relief, including a plenary hearing. R. 3:22-10(b); Preciose, supra, 129 N.J. at 462-63.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Thus, even if the jury had declined to find defendant death-eligible, defendant would still have been sentenced to life without parole, as the murder fulfilled both of the above conditions.