STATE OF NEW JERSEY VS. BERNARD E. GREEN (14-02-0153, CAPE…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2420-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BERNARD E. GREEN, a/k/a
PEANUT, GAILS, GAILS
GREEN, PEANUT GREEN,
BERNARD E. GALES,
JASON, NUT, and BERNARD
E. GRANT,

     Defendant-Appellant.
___________________________

                   Submitted October 13, 2020 – Decided October 23, 2020

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 14-02-
                   0153.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven J. Sloan, Designated Counsel, on the
                   brief).
              Jeffrey H. Sutherland, Cape May County Prosecutor,
              attorney for respondent (Gretchen A. Pickering, Senior
              Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Bernard E. Green pled guilty in 2014 to a reduced charge of

aggravated manslaughter. He appeals the trial court's October 22, 2018 order

denying his petition for postconviction relief ("PCR") without an evidentiary

hearing. For the reasons that follow, we affirm.

                                        I.

      The following background and procedural history are pertinent to our

discussion.

      In the early hours of November 20, 2012, Lower Township police

responded to the home of Cynthia Callahan in the Villas section of the Township

after receiving reports that a man had been shot there. Upon arriving, police

observed the deceased victim, Christopher Turner, lying face down in the front

entrance of the residence.

      The police interviewed Callahan, who witnessed the shooting. According

to Callahan, Turner was a friend of hers who had come to her home the evening

of November 19 with a woman named Crystal.




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                                        2
      Defendant, who Callahan knew by the name of "Jason," came to the house

in the early hours of November 20 and asked for Crystal. Perhaps sensing

danger, Callahan told him Crystal was not there. According to Callahan, when

defendant was told this, he forced his way in, armed with a handgun.

      Defendant then brought Crystal outside the house and they briefly spoke.

Crystal remained outside while defendant re-entered the house. He confronted

Turner, asking him, "Where is the money at?" According to Callahan, Turner

replied that there was no money, at which point defendant pointed the gun at

Turner. A physical altercation ensued, during which defendant shot Turner four

times. An autopsy of Turner confirmed that the cause of death was multiple

gunshot wounds.

      During their investigation, police identified "Jason" as defendant and

"Crystal" as his wife, Crystal Green.     Crystal provided the police with a

statement in which she confirmed that defendant had come to Callahan's house

looking for her. Crystal explained she had recently told defendant that she no

longer wanted to be in a relationship with him. According to Crystal, defendant

went to Callahan's house to confront her about her relationship with Turner,

whom she had recently met.




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                                      3
      Crystal stated that she heard an altercation inside the house and at least

one gunshot. She then drove defendant and another man1 to another house in

the Villas area before going to her own residence.

      An arrest warrant was consequently issued for defendant, charging him

with murder and other offenses.      On November 26, defendant surrendered

himself at the Cape May County Correctional Facility, where he gave

investigators a statement.

      Defendant admitted to going to Callahan's house on November 20 to find

his wife, but "adamantly denied carrying a handgun." He denied knowing

Turner, but admitted that he and Turner had engaged in a physical altercation

during which he claimed Turner produced a firearm. Defendant claimed the gun

had discharged during the fight, killing Turner.

      Defendant stated he left the premises with Crystal and the other man, but

could not recall where they went or what they did thereafter. The only thing

defendant could remember was that he woke up in the bushes at some

unspecified location allegedly as a result of being intoxicated. When further



1
  The investigation initially suggested the other man had brought defendant to
Callahan's residence but remained outside the entire time the events were taking
place. As part of the plea negotiations, defendant exculpated that individual,
and criminal charges against him were subsequently dismissed.
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                                       4
questioned by the investigators about his actions after the altercation occurred,

defendant refused to provide any additional details.

      A grand jury charged defendant with first-degree murder and numerous

other offenses. Plea negotiations ensued.

      On September 11, 2014, defendant entered a guilty plea to amended Count

One, first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), pursuant to

a negotiated plea agreement.       In exchange for the guilty plea, the State

recommended a custodial sentence of twenty-four years, subject to the No Early

Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A.

2C:43-6(c), eighty-five percent of which must be served without the possibility

of parole.

      On October 31, 2014, Judge Patricia M. Wild sentenced defendant in

accordance with the negotiated plea, imposing the maximum sentence

negotiated of twenty-four years.

      At his plea hearing, defendant testified that he went to Callahan's

residence armed with a loaded gun and searching for Crystal, "who admitted she

was having an affair and doing drugs with Turner." Defendant told the court he

had confronted Turner, gun in hand, and they engaged in a physical struggle

during which defendant admittedly shot Turner four times.


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                                        5
      Defendant denied to the court going to the house with the intent to shoot

Turner. However, he agreed that he had "recklessly caused Turner's death under

circumstances manifesting extreme indifference to the value of human life."

      Defendant appealed his sentence on the excessive sentencing calendar.

On March 10, 2015, we issued an order affirming defendant's sentence. The

Supreme Court denied defendant's petition for certification.     223 N.J. 283

(2015).

      Defendant thereafter filed a PCR petition, alleging his plea counsel had

been ineffective in various respects. After hearing oral argument, Judge Sarah

Beth Johnson issued a letter opinion on October 22, 2018 denying defendant's

petition. This appeal followed.

                                      II.

      Defendant presents the following arguments in his brief:

            THE PCR COURT MISAPPLIED THE LAW IN
            DENYING THE DEFENDANT'S PETITION FOR
            POST   CONVICTION    RELIEF    WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS THIS CONTENTION HE
            WAS    PROVIDED    WITH     INADEQUATE
            ASSISTANCE OF COUNSEL.

            1. Defendant's alleged statements to the police that he
            shot the victim should have been suppressed as the



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                                      6
              statements were in violation of Miranda[2] once
              defendant invoked his Fifth Amendment right to remain
              silent.

              2. Plea counsel was ineffective for failing to pursue a
              diminished capacity defense and the decision to
              abandon the diminished capacity defense was
              objectively unreasonable.

              3. Defendant should have been permitted to withdraw
              his plea bargain to correct a manifest injustice and to
              pursue a passion/provocation defense as the assertion
              of same may have influenced the outcome.

        The applicable law for evaluating these arguments is well settled.

        Under the Sixth Amendment of the United States Constitution, a person

accused of crimes is guaranteed the effective assistance of legal counsel in his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a

deprivation of that right, a convicted defendant must satisfy the two-part test

enunciated in Strickland by demonstrating that: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced the accused's

defense. Id.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

        The United States Supreme Court has extended these principles to the

representation provided by a criminal defense attorney to an accused in


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                             A-2420-18T4
                                         7
connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63

(2012); Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that "the two-part

Strickland v. Washington test applies to challenges to guilty pleas based on

ineffective assistance of counsel").

      In reviewing claims of ineffectiveness, courts apply a strong presumption

that defense counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Strickland, 466

U.S. at 690. Strategic choices by counsel generally "will not serve to ground a

constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (citations omitted);

see also State v. Perry, 124 N.J. 128, 153 (1991); Hill, 474 U.S. at 59

(articulating the "reasonable probability" test where a defendant claims his

counsel did not properly advise him before entering a guilty plea).

      "[B]ald assertions" of deficient performance are insufficient to support a

PCR application. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999); see also R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013)

(reaffirming these principles in evaluating whether any of a defendant's various

PCR claims warranted an evidentiary hearing).

      Here, defendant alleges his former counsel was ineffective in two

respects: (1) failing to file a motion under the Miranda doctrine to suppress his


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                                          8
incriminating statements to the investigators who interviewed him; and (2) not

pursuing a defense of diminished capacity. We reject both of these claims,

substantially for the sound reasons expressed in Judge Johnson's written

decision. We amplify that analysis with some brief discussion.

                                      A.

      First, we are unpersuaded that if trial counsel had filed a suppression

motion it would have had merit.      Defendant alleges that the investigators

wrongfully engaged in substantive discussion with him about the facts of the

case after he had already received Miranda warnings and invoked his right to

counsel. As Judge Johnson correctly recognized, however, the discussion took

place after defendant himself re-initiated further conversation with the

investigators.

      The record shows the investigators asked defendant if he was aware of the

location of the missing gun that had been used in the shooting, to which

defendant responded that he did not know and denied possessing a gun. That

limited inquiry was arguably permissible under the "public safety" exception t o

Miranda, out of a concern the missing weapon could be picked up by a child or

another third party and cause harm. See State v. Melendez, 423 N.J. Super. 1,




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                                       9
27 (App. Div. 2011).      In any event, defendant gave no self-incriminating

response to that gun location query, so the exchange was not prejudicial.

      The investigators next attempted to obtain basic identifying information

from defendant, such as his date of birth and address. This line of inquiry did

not seek to "elicit an incriminating response." Id. at 31 (citations omitted). At

that point, defendant spontaneously changed the subject and asked the

investigators, "What's the purpose of you guys speaking to me like, you know

what I mean?" In reply, the investigators explained to defendant they were not

allowed to talk with him about the case because he had asked for an attorney.

Nevertheless, defendant said he wished to converse with the officers "man to

man" and provide his version of the events. The investigators then took a break

to allow defendant to think over his desire to talk.

      When the investigators returned, they reiterated to defendant that he had

a right to an attorney.    Defendant responded, "Come on, let's talk."         The

investigators then re-read defendant his rights and he signed a Miranda waiver

form. Defendant then proceeded to divulge incriminating information to the

officers, although he continued to deny bringing a gun to the residence.

      Given the totality of these circumstances, we agree with Judge Johnson

that any motion to suppress defendant's incriminating statements was likely to


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                                       10
fail. The Supreme Court of the United States has made clear that when a suspect

who has received warnings voluntarily re-initiates discussion with law

enforcement officers, there is no Miranda violation. See, e.g., Edwards v.

Arizona, 451 U.S. 477, 477 (1981); see also Maryland v. Shatzer, 559 U.S. 98,

109 (2010) (reaffirming the Edwards principles). That is what occurred here.

The investigators gave defendant a reasonable interval to think over his desire

to talk, but he chose to press ahead, even after being re-warned that his words

could be used against him. The record shows defendant "evince[d] a willingness

and a desire for a generalized discussion about the investigation . . . ." State v.

Fuller, 118 N.J. 75, 82 (1990) (quoting Oregon v. Bradshaw, 462 U.S. 1039,

1045-46 (1983)).

      In short, it is highly speculative to believe that defendant would have

prevailed on a motion to suppress his statements. The PCR judge correctly

analyzed the situation in light of the applicable law. Moreover, it cannot be

assumed the State's comparatively favorable plea offer – downgrading the

murder count to manslaughter – would have remained on the table if a

suppression motion had been unsuccessful.




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                                       11
                                       B.

      We likewise concur with Judge Johnson that the assertion of a diminished

capacity defense would not have proved beneficial to defendant. The record

reflects that defendant had consumed an unspecified amount of alcohol on the

night of the shooting. No blood alcohol reading to show his level of impairment

exists. Nor has defendant presented any sworn certifications from witnesses

about his perceived degree of impairment.

      As N.J.S.A. 2C:2-8 and case law instruct, voluntary intoxication is only a

viable defense to criminal charges where the intoxication is so severe that it

cancels out an element of an offense. The defense requires a "prostration of

faculties" and not merely the intake of a large quantity of alcohol. State v.

Cameron, 104 N.J. 42, 54 (1986). Defendant claims he passed out in shrubbery

after the shooting but he cannot identify the time or location or corroborate the

events.

      The PCR court rightly concluded that defendant had not presented

sufficient proof to substantiate a diminished capacity defense to a jury.

Furthermore, even if such a defense were supported by ample evidence, it most

likely only would have negated the charge of intentional murder. The negotiated

outcome of aggravated manslaughter was achieved by defense counsel without


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                                      12
risking the presentation of a diminished capacity defense that a jury may well

have easily rejected.     Again, there is no prima facie showing of counsel's

ineffectiveness, and no evidentiary hearing was required. State v. Cummings,

321 N.J. Super. at 170.

                                        C.

      Defendant's third and final point is that the trial court should have allowed

him to withdraw his guilty plea in order to pursue a passion/provocation defense

to a jury. This argument plainly has no merit. Defendant expressly denied in

his statement to the officers that he "snapped" because he found his wife with

another man. In addition, the eyewitness accounts reflected that defendant's

argument with the victim that preceded the shooting focused on money, not on

defendant's wife. A passion/provocation defense would have been severely

undermined by this evidence.

      Further, as we noted earlier, the negotiated manslaughter plea effectively

downgraded the murder charge, and provided defendant with a more certain

reduction of his sentencing exposure with a twenty-four-year cap as compared

with the thirty-year minimum for murder. See N.J.S.A. 2C:11-3(b)(1).

      All other arguments presented by defendant lack sufficient merit to

warrant discussion. R. 2:11-3(e)(2).


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                                       13
Affirmed.




                 A-2420-18T4
            14
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