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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RAHJIV SMITH, Defendant–Appellant.

DOCKET NO. A–5236–11T2

    Decided: April 04, 2014

Before Judges Simonelli and Fasciale.Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Defendant appeals from a January 20, 2012 order denying his petition for post-conviction relief (PCR).  He contends that he received ineffective assistance of trial counsel.   We reverse and remand for an evidentiary hearing.

In February 2004, a grand jury indicted defendant for murder, N.J.S.A. 2C:11–3a(1)–(2) (count one);  and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39–4a (count two).   A judge and jury tried defendant over four days in July 2005, and the jury found defendant guilty of both counts.   The judge merged count two with count one and sentenced defendant to fifty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Defendant appealed, arguing that the judge erred by not suppressing certain evidence, allowing the medical examiner to testify to an ultimate issue before the jury, and improperly imposing a NERA sentence.   We affirmed, and the Supreme Court denied certification.  State v. Smith, No. A–1485–05 (App.Div. Sept. 27, 2007), certif. denied, 194 N.J. 445 (2008).

In September 2010, defendant filed his petition for PCR. He argued, in relevant part, that trial counsel was ineffective by advising him not to testify and by failing to assert an intoxication defense on his behalf.   PCR counsel submitted a brief additionally arguing that trial counsel was ineffective by failing to call Dr. James Boudwin as a trial witness to testify about defendant's drug use at the time of the shooting.   PCR counsel contended that this testimony would have created reasonable doubt that defendant “purposely or knowingly shot” the victim.   At a minimum, PCR counsel maintained that defendant was entitled to an evidentiary hearing.

The PCR judge denied defendant's petition and rendered a written decision, stating that:

Under the Strickland [1] test, the [defendant] must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

[Defendant] argues that ․ [trial counsel was ineffective because he] advised [defendant] not to take the stand.   This argument is also meritless because [defendant] presents no evidence that [trial counsel] prevented him from taking the stand, causing the result of the trial to be different had [trial counsel] not advised him not to take the stand.   A lawyer's duty to his client is to give advice within the client's best interests with a certain degree of competency.

[Defendant] argues that [trial counsel] was ineffective when he did not call Dr. James Boudwin to testify at trial to provide information regarding [defendant]'s urine sample being positive for marijuana and PCP. The purpose would have been to corroborate [defendant]'s statement that he got high two times before the shooting, and thus, conveying to the jury that [defendant] was truthful about the incident and how it occurred.   The purpose would not have been to offer an intoxication defense.

[Defendant]'s argument is meritless because there is not a reasonable probability that but for [trial counsel]'s unprofessional error – i.e., not calling Dr. Boudwin to testify that [defendant] had marijuana and PCP in his system, ․ – the result of the proceeding would have been different.   [Defendant] does not argue that [trial counsel] is ineffective because he does not raise any intoxication defense despite his wishes.[]   ․ Further, the [c]ourt should keep in mind that after Dr. Boudwin's testimony during the Miranda [3]hearing ․ in which Dr. Boudwin testified as to the effects of PCP and marijuana and concluded that [defendant]'s judgment was impaired at the time of the incident, the [c]ourt ․ concluded that Dr. Boudwin's testimony is given very little weight as an expert.

[ (Internal citations and quotation marks omitted).]

The judge also rejected defendant's arguments that trial counsel was ineffective by failing to move to suppress defendant's statement to police, by not presenting evidence of defendant's grandfather's dementia and inability to consent to the search of defendant's home, by failing to object to a lesser-included charge, and by failing to call the State's primary witness's girlfriend to testify.

On appeal, defendant raises the following points:



A. Trial Counsel's Failure to Call Dr. Boudwin at Trial.

B. The Motion to Suppress Evidence Gained From Marion Smith's Consent.

C. Counsel's Advice That Defendant Should Not Testify.

After carefully considering the record and the briefs, we conclude that defendant's argument contained in Point IB is “without sufficient merit to warrant discussion in a written opinion.”   R. 2:11–3(e)(2).   We focus on defendant's remaining contentions that his trial counsel was ineffective by failing to produce testimony from Dr. Boudwin at trial and by advising defendant not to testify.

For a defendant to obtain PCR based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial.  Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed. at 693;  State v. Fritz, 105 N.J. 42, 58 (1987).   The court should presume that counsel “rendered adequate assistance and made all the significant decisions in exercise of reasonable professional judgment.”  Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed. at 695.   Defendant must establish with “reasonable probability” that the result would have been different if not for counsel's deficient performance.  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed. at 698.

Rule 3:22–10(b) provides, in pertinent part, that

[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

“It is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held.”  State v. Porter, 216 N.J. 343, 347 (2013).   In deciding whether a defendant “is entitled to an evidentiary hearing in connection with his petition for [PCR,] the facts should be ‘view[ed] in the light most favorable to a defendant.’ ”  State v. Parker, 212 N.J. 269, 282 (2012) (second alteration in original) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)).   Indeed, “[t]he development and resolution of ineffective assistance of counsel claims frequently call for an evidentiary hearing ‘because the facts often lie outside the trial record and because the attorney's testimony may be required.’ ”  Porter, supra, 216 N.J. at 354 (quoting Preciose, supra, 129 N.J. at 462).

Applying these well-settled standards, we conclude that an evidentiary hearing is warranted to resolve defendant's contentions that his trial counsel rendered ineffective assistance.

Dr. Boudwin gave the following testimony during the motion to suppress:

Q [Trial counsel]:  And what was the result of [your report of defendant's drug screening] based upon your training and experience, the analysis?

A: The result showed positive marijuana and positive PCP.

Q: What is PCP?

A: PCP is a psychoactive substance․  It affects the brain.   It also affects the body in various adverse ways.

Q: How does PCP ․ affect an individual's brain?

A: Well, it at low doses typically can cause euphoria, talkativeness, even confusion.   Some folks will become very aggressive.   It's been associated even at low doses, but more commonly at higher doses with psychotic states and violent behavior.

Q: Based upon your training and experience would the use of marijuana and [PCP] together, regardless of the dosages, cause any particular noticeable effect in the individual?

A: They would tend to have an additive effect when used together.

Q: And again, what effect does PCP have on an individual?

A: It – even at lower doses will impair their judgment, can cause hallucinations, may affect their blood pressure, their body temperature.   It can make them very aggressive or very happy, very talkative.

The doctor indicated that defendant's drug screen showed levels of PCP that were “relatively high,” that defendant may still not have been “in touch with reality” nearly two days after the shooting, and that he “would certainly expect [PCP] to have impaired [defendant's] judgment.”   Dr. Boudwin's testimony purportedly corroborated defendant's assertion that he was intoxicated at the time of the shooting.   Given this testimony, it is not clear from the record why trial counsel did not mount an intoxication defense.   Nor is it clear why he chose not to call Dr. Boudwin to testify at the trial.   This is especially so because the State introduced evidence that defendant had been drinking alcohol.

Additionally, we are unable to discern on this record why defendant did not testify at the trial.   At the time of the trial, defendant was twenty years old and had no criminal record.

Reversed and remanded for an evidentiary hearing consistent with this opinion.   We do not retain jurisdiction.


FN1. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984)..  FN1. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).

FOOTNOTE.  FN]. Defendant did raise this issue in support of his PCR petition.

FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).


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