Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
5-4-2004
Affinito v. Hendricks Precedential or Non-Precedential: Precedential
Docket No. 01-2066
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "Affinito v. Hendricks" (2004). 2004 Decisions. Paper 670. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/670
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Peter C. Harvey PRECEDENTIAL Attorney General of New Jersey Nancy A. Hulett (Argued) UNITED STATES Deputy Attorney General COURT OF APPEALS P.O. Box 086 FOR THE THIRD CIRCUIT Office of Attorney General of New Jersey Department of Law & Public Safety No. 01-2066 Division of Criminal Justice Appellate Bureau Richard J. Hughes Justice Complex THOMAS AFFINITO, Trenton, NJ 08625 Attorneys for Appellee Appellant
v. OPINION OF THE COURT ROY HENDRICKS; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY AM BRO, Circuit Judge Thomas Affinito was convicted in On Appeal from the 1998 of murder and kidnapping in New United States District Court Jersey state court. After exhausting his for the District of New Jersey state court remedies, Affinito petitioned D.C. Civil Action No. 99-cv-02560 for a writ of habeas corpus in the United (Honorable Joseph A. Greenaway, Jr.) States District Court for the District of New Jersey. The District Court denied Affinito’s petition, but granted a Argued July 28, 2003 certificate of appealability as to whether Affinito received ineffective assistance of Before: SCIRICA, Chief Judge, counsel at his trial. While we conclude RENDELL and AMBRO, Circuit Judges that Affinito’s counsel failed to provide effective assistance, that failure was not sufficiently prejudicial to warrant granting (Opinion filed: May 4, 2004) a writ of habeas corpus. I. Factual and Procedural Jean D. Barrett, Esquire (Argued) Background Ruhnke & Barrett 47 Park Street On February 22, 1985, Affinito, Montclair, NJ 07042 John Cupsie, and Michael Perez were Attorney for Appellant drinking at a bar called Stash’s Tavern in Carteret, New Jersey. What follows was Affinito was sitting in the back seat, as he related primarily by Perez, who was an had on the car ride from Stash’s to City eyewitness to what occurred throughout Line. While parked outside his residence, that evening and the early morning hours Affinito pulled out a pipe and asked of February 23. Cupsie if he wanted to smoke marijuana. Cupsie responded in the affirmative. The three men were regular patrons Affinito, however, did not have any at Stash’s Tavern and had met one another marijuana. He pretended to put marijuana there. It appears, though, that they neither in the pipe and told Cupsie to pass the were good friends nor had they known pipe to Perez. At this point, Affinito each other very long. On the evening in grabbed Cupsie from behind and pulled question, they had been at Stash’s for him into the back seat of the car. Cupsie several hours and eventually began talking began struggling frantically, and the fight over a game of pool. They decided to spilled out of the car. During the course drive to another bar in Carteret called the of the fight, Affinito pinned Cupsie to the City Line. Cupsie drove. The three men ground and repeatedly punched his face arrived just before last call and ordered and head until he was bloodied and drinks. Almost immediately, Affinito and unconscious. Affinito then said he had to Cupsie began arguing for some unknown kill Cupsie and strangled him with a shirt reason, but the two seemingly reconciled until he began foaming at the mouth. their differences within a few minutes. With Perez’s help, Affinito put Cupsie in Shortly thereafter, Affinito and the trunk of the car and drove to a nearby Perez left Cupsie at the bar and walked junkyard.1 outside. Neither Affinito nor Perez By the time Affinito arrived at the wanted to go home, and the suggestion junkyard, however, Cupsie had regained was made that they could drive around in consciousness. When Affinito opened the Cupsie’s car. The two checked the car trunk, Cupsie punched him in the face in doors, but they were locked. Affinito then an attempt to fight his way out of the stated he could give Cupsie a “sleeper trunk. He was unsuccessful. Affinito hold” (a wrestling term), render him again strangled Cupsie, this time killing unconscious, and take his keys. Perez expressed uncertainty in the plan, but Affinito insisted he could knock Cupsie 1 Perez testified that he told out and do so without hurting him. Perez Affinito to stop several times, thought acceded. about running away, and did not wish to The two men soon rejoined Cupsie assist in putting Cupsie’s body in the inside, and he informed them of his desire trunk. But it appears Perez was either to go home. All three returned to Cupsie’s frozen by fear, in partial shock, or both. car, and he drove to Affinito’s house. After Affinito cursed at him, Perez agreed to help.
2 him. After throwing Cupsie’s body on the and quality of his acts or to know that they ground, Affinito drove the car from the were wrong.” junkyard. He and Perez wiped the car of In 1987, John P. Russell was fingerprints and abandoned it. Affinito substituted as Affinito’s defense counsel.3 also threw the shirts used to strangle Russell hired a different psychiatrist, Cupsie and clean the car into a sewer James Ferretti, M.D.4 Ferretti based his catch basin. He returned to his home around 4:30 a.m. on February 23. After finding Cupsie’s body in the 3 At Affinito’s Post Conviction junkyard later that day and conducting a Relief Act (“PCRA”) hearing, Bronson preliminary investigation, the police took testified that he “felt uncomfortable trying Affinito into custody. At police a death penalty case” and that his turning headquarters, Affinito gave two the case over to Russell had nothing to do statements. In the first, he admitted with the fact his fee had not been paid in leaving the bars with Cupsie, but he full. Bronson highly recommended that claimed that Cupsie dropped him off at Affinito accept Russell as his new home around 4:00 a.m. In his second counsel. At the PCRA hearing, Bronson statement, Affinito admitted that he killed stated his belief that Russell was more Cupsie. Affinito alleged, however, that he than capable because he had seen Russell attacked Cupsie only after Cupsie made “spellbind juries with his skills.” homosexual advances toward him.2 To bolster his argument about Larry Bronson, the counsel retained Russell’s ineffectiveness, Affinito points by Affinito’s family, hired Stanley L. out that, prior to the 1988 trial, Russell Portnow, M.D., to perform a psychiatric had committed several ethical violations. evaluation of Affinito. Portnow’s Further, Russell was disbarred in 1990 for evaluation of Affinito’s mental status at a misappropriating funds from his trust the time of the incident was based on two account in 1982. See Matter of Russell, interviews with him, numerous sets of 579 A.2d 1228 (N.J. 1990). Russell also medical and psychiatric records, and had been sanctioned twice prior to police statements given by Affinito and Affinito’s trial for tampering with a witnesses. Portnow concluded that witness and failing to perfect an appeal. Affinito suffered from a major psychiatric See Matter of Russell, 282 A.2d 42 (N.J. disorder that “substantially impaired his 1971); Matter of Russell, 541 A.2d 665 ability to know or appreciate the nature (N.J. 1988). 4 There is no evidence why Russell retained Ferretti, but it is alleged Portnow 2 As will become relevant later, refused to testify until the bill for his Affinito claims to suffer from auditory, evaluation of Affinito was paid. but not visual, hallucinations. Apparently neither Russell nor Bronson
3 evaluation on a single, fifty-five minute susceptible to the effects of intoxicants. interview with Affinito. During this Ferretti concluded that such a “vulnerable interview, Ferretti relied on Affinito to brain” – coupled with intoxication, the provide the facts of the crime. To described personality disorder and stress underscore his reliance, Ferretti provided from a fight – would result in a person a disclaimer in his report that the lacking the capacity to “knowingly and by “opinions and diagnosis recommendations design perpetrate a murder.” and commentary contained in this report On cross-examination, Ferretti are based on the assumption that the testified that his opinion might change if patient has been reasonably accurate and the facts were materially different from truthful in his narration. If this was not those provided by Affinito. The the case, my opinions and diagnosis prosecution then questioned Ferretti conceivably could be altered.” While regarding Affinito’s altercation and Ferretti later reviewed Affinito’s medical strangling of Cupsie in the junkyard. and psychiatric records, Russell never (Ferretti was not even aware of these facts provided Ferretti with Affinito’s post- because Affinito omitted mention of them arrest statements to the police. during their interview, and Russell had Affinito was ultimately charged failed both to mention them to Ferretti and with: (1) purposeful or knowing murder, provide him with Affinito’s statements to N.J. Stat. Ann. § 2C:11-3(a)(1) and (2); the police.) Ferretti responded that he (2) first-degree kidnapping, N.J. Stat. Ann. “would not apply diminished capacity at § 2C:13-1(b)(1) and(2); and (3) felony that point because I would think [Affinito] murder, N.J. Stat. Ann. § 2C:11-3(a)(3). formulated intent.” Ferretti reiterated this He stood trial in the New Jersey Superior position on redirect, though with the Court in September 1988. qualifying assumption that the additional facts were true. At trial, Russell used Ferretti’s testimony to present diminished capacity In its case in rebuttal, the State and intoxication defenses. Ferretti opined called Dr. Irwin N. Perr as a psychological during direct examination that Affinito: expert. After reviewing medical records (1) was intoxicated the night of the a n d interviewing Affinito f o r murder; (2) had a personality disorder of approximately three hours, Perr concluded the “epileptoid variety” which caused him that Affinito was not an epileptic per se to have “difficulty with impulse control”; and did not suffer from any type of brain and (3) had suffered permanent brain damage or cognitive disorder. tissue injury brought about by epilepsy A jury convicted Affinito on all and past alcohol abuse, making him more counts. The purposeful or knowing murder conviction was merged with the felony murder conviction, for which paid Portnow for his services.
4 Affinito received a sentence of life In early 1996 the Superior Court imprisonment with parole ineligibility denied Affinito’s request for relief, lasting thirty years. (He received a concluding that he failed to sustain his consecutive sentence of twenty-five years burden of proving ineffective assistance of for the first degree kidnapping counsel. Significantly, the Court found conviction.) Russell’s choice of Ferretti was strategic and that Affinito failed to prove whether In 1989 Affinito appealed his Portnow was available at the time of the convictions and sentences. In his brief to trial and prepared to testify. The Court the Appellate Division of the New Jersey also found that Affinito failed to Superior Court, Affinito alleged the trial demonstrate Portnow’s testimony would court committed several errors, including have differed from Ferretti’s had Portnow an improper jury charge regarding been called as Affinito’s expert. diminished capacity (erroneously placing on Affinito the burden of proving lack of Affinito appealed once more to the intent in establishing diminished capacity). Appellate Division of the Superior Court, In February 1991 the Appellate Division which affirmed for the same reasons. affirmed Affinito’s convictions and Later that year, the New Jersey Supreme sentences. Later that year, the Supreme Court, as it had done in the direct appeal Court of New Jersey denied Affinito’s of Affinito’s convictions, denied his petition for certification. request for certification. Nearly three years later Affinito Affinito then filed a petition filed in the Superior Court a petition for seeking a writ of habeas corpus in the post-conviction relief under New Jersey’s United States District Court for the Post-Conviction Relief Act (“PCRA”), District of New Jersey. He argued that his N.J. Stat. Ann § 2A:67-16. In the petition Sixth Amendment right to effective he alleged his trial counsel was ineffective assistance of counsel was violated for the by not presenting a viable diminished same reasons he asserted in the New capacity defense. Specifically, Affinito Jersey courts. As noted, the District Court argued Russell failed to prepare Ferretti denied Affinito’s petition. We granted a properly. At the PCRA hearing, Affinito certificate of appealability on the issue of offered the testimony of a criminal lawyer whether Russell provided ineffective as an expert. That expert opined that assistance of counsel.5 Russell was ineffective because he failed II. Standard of Review to provide, inter alia, Ferretti with a copy of Affinito’s statements to the police, did We exercise plenary review over not require Ferretti to consult with Portnow and called Ferretti as an expert instead of the (presumably) more prepared 5 We have jurisdiction under 28 Portnow. U.S.C. §§ 1291 and 2253(a).
5 the District Court’s decision denying indistinguishable facts.” Williams, 529 Affinito’s habeas petition. Stevens v. U.S. at 413; see also Werts, 228 F.3d 196. Del. Corr. Ctr., 295 F.3d 361, 368 (3d Cir. Further, “it is not sufficient for the 2002). Overlaying our review standard, petitioner to show merely that his however, is the Antiterrorism and interpretation of Supreme Court precedent Effective Death Penalty Act of 1996 is more plausible than the state court’s; (“AEDPA”). For matters of fact, a federal rather, the petitioner must demonstrate that court reviewing a habeas petition must Supreme Court precedent requires the “presume that the . . . findings of both contrary outcome.” Werts, 228 F.3d at 197 state trial and appellate courts are correct, (quoting Matteo, 171 F.3d at 888). a presumption that can only be overcome “If we determine that the state court on the basis of clear and convincing decision is not ‘contrary to’ the applicable evidence to the contrary.” Id. (citing 28 Supreme Court precedent, then we are U.S.C. § 2254(e)(1)); see also Williams v. required to advance to the second step in Taylor, 529 U.S. 362, 402-13 (2000). the analysis — whether the state court As for legal conclusions, Williams decision was based on an ‘unreasonable instructs that a federal court may only application of’ Supreme Court precedent.” grant habeas relief if the state adjudication Id. (citing Matteo, 171 F.3d at 888). Here, “resulted in a decision that was contrary “a federal habeas court [may] grant the to, or involved an unreasonable writ if the state court identifies the correct application of, clearly established Federal governing legal principle from [the Law, as determined by the Supreme Court Supreme] Court’s decision but of the United States.” Williams, 529 U.S. unreasonably applies that principle to the at 402-03 (quoting 28 U.S.C. § facts of the prisoner’s case.” Williams, 2254(d)(2)); see also Werts v. Vaughn, 529 U.S. at 413. In this inquiry, “we are 228 F.3d 178, 196 (3d Cir. 2000). Under not authorized to grant habeas corpus AEDPA, “we must first identify the relief simply because we disagree with the applicable Supreme Court precedent and state court’s decision or because we would determine whether it resolves the have reached a different result if left to our petitioner’s claim.” Werts, 228 F.3d at 197 own devices.” Werts, 228 F.3d at 197 (citing Matteo v. Superintendent, SCI (citing Matteo, 171 F.3d at 889); see also Albion, 171 F.3d 877, 888 (3d Cir. 1999)). Williams 529 U.S. at 411. Rather, the state A decision is “contrary to” clearly court’s application of Supreme Court established federal law “if the state court precedent must have been “objectively arrives at a conclusion opposite to that unreasonable.” Werts, 228 F.3d at 197 reached by [the Supreme] Court on a (citations omitted). In other words, a question of law or if the state court “federal habeas court should not grant the decides a case differently than [the petition unless the state court decision, Supreme] Court has on a set of materially evaluated objectively and on the merits,
6 resulted in an outcome that cannot standard is met if counsel’s performance reasonably be justified under existing “fell below an objective standard of Supreme Court precedent.” Id. reasonableness.” Id. at 688. Judicial scrutiny in this regard, however, is highly III. Affinito’s Ineffective Assistance of deferential. Id. at 689. Counsel Claim It is all too tempting for a Affinito alleges a violation of his defendant to second-guess Sixth Amendment right to effective counsel’s assistance after assistance of counsel. Although a number convic tion or advers e of issues are raised, Affinito essentially sentence, and it is all too argues that Russell provided ineffective easy for a court, examining assistance because he decided to use counsel’s defense after it Ferretti as the defense expert witness has proved unsuccessful, to rather than Portnow and failed to provide conclude that a particular Ferretti with all relevant discovery act or omission of counsel documents. We conclude that Russell’s was unreasonable. A fair performance was deficient. Nonetheless, assessment of attorney this does not require a contrary outcome, performance requires that even in the face of an erroneous jury every effort be made to instruction relating to diminished capacity. eliminate the distorting A. Ineffective Assistance of Counsel effects of hindsight, to Standard reconstruct the circumstances of counsel’s The Sixth Amendment right to challenged conduct, and to effective assistance of counsel is not evaluate the conduct from intended “to improve the quality of legal counsel’s perspective at the representation, although that is a goal of time. considerable importance to the legal system. The purpose is simply to ensure Id. (internal citation omitted). Therefore, that criminal defendants receive a fair a court “must indulge a strong trial.” Strickland v. Washington, 466 U.S. presumption that counsel’s conduct falls 668, 689 (1984). In Strickland, the within the wide range of reasonable Supreme Court established a two-prong professional assistance.” Id. test to determine when a defense counsel’s The second Strickland prong is representation was so inadequate as to reached only when the first exists. If so, a warrant reversal of a conviction. defendant must demonstrate a “reasonable A defendant first must establish his probability that, but for counsel’s c o u n s e l ’ s r e p r e se n t at io n wa s unprofessional errors, the result of the constitutionally deficient. Id. at 687. This proceeding would have been different.”
7 Id. at 694. In adopting this standard, the At the outset, we are unpersuaded Strickland Court determined that a that Ferretti was inherently unqualified as defendant must show more than “that the an expert witness or that hiring him was errors had some conceivable effect on the unreasonable. Strickland provides that outcome of the proceeding.” Id. at 693. counsel has wide latitude in making While a defendant need not show the error strategic and tactical decisions. 466 U.S. “more likely than not altered the outcome at 669. Determining which psychiatric in the case,” id. at 693, it nonetheless must expert to consult is such a decision, be it be “sufficient to undermine confidence in strategic or tactical.6 See United States v. the outcome.” Id. at 694. Kirsh, 54 F.3d 1062, 1072 (2d Cir. 1995). B. Application of the Strickland In order to circumvent the Standard teachings of Strickland, Affinito attempts to paint Ferretti as incompetent by Affinito argues the District Court isolating a single statement from his direct erred in concluding that the New Jersey testimony. Answering a question on Courts reasonably applied Strickland. As Affinito’s mental capacity, Ferretti stated stated previously, each individual that Affinito “was not acting with mature argument derives from Russell’s decision decision-making capacity and good to use Ferretti as an expert witness and judgment, [and] therefore had diminished failure to provide him with all relevant capacity.” Affinito claims this discovery documents. First, Affinito demonstrates Ferretti lacked an alleges Ferretti was not qualified to testify understanding of the legal definition of in support of a diminished capacity diminished capacity — a mental disease or defense and that Portnow’s prior defect that negates the relevant state of evaluation should not have been ignored. Affinito also claims it was unreasonable to have Ferretti testify when he had spent 6 Affinito argues that, because only fifty-five minutes interviewing Portnow refused to testify until he was Affinito, reviewed “no documents,” paid, the decision to retain Ferretti was a including Affinito’s “medical and mental financial, not strategic, one. Regardless health history,” and supported his whether financial considerations played testimony with the unknown diagnosis of some part in Russell’s decision, his choice “vulnerable brain.” Finally, Affinito remained a strategic one. (Affinito uses contends that Russell’s failure to provide “strategic” throughout his briefing, though Ferretti with Affinito’s statements to one could argue that the decision to use police fell below any objective standard of Ferretti, as opposed to Portnow, was a reasonableness. tactical means of carrying out the strategy 1) Was the Performance of Affinito’s of rebutting the prosecution’s case. In this Counsel Constitutionally Deficient? context, we use the words interchangeably.)
8 mind required for an offense (here intent). Affinito’s claim of no review is incorrect. See N.J. Stat. Ann. § 2C:4-2; State v. Ferretti admitted that he had no written Galloway, 628 A.2d 735, 743 (N.J. 1993). background information at the time of his examination. He testified, however, that But in answering the very next he reviewed “background material later question, Ferretti stated that — in light of on, and that involves virtually every aspect Affinito’s medical history, his intoxication of [Affinito’s] life, medical history, work at the time of the crime and the stress of a history, legal history and family history.” fight — Affinito lacked the capacity “to This background material, Ferretti opined, knowingly and by design perpetrate a supported his independent conclusions. murder.” This demonstrates Ferretti did understand the diminished capacity Further, selecting Ferretti to testify defense. In fact, Ferretti’s uncontroverted was a reasonable tactical decision because testimony establishes him as an expert his and Portnow’s evaluations, while not qualified in the field of psychiatry who has identical, are similar. Both noted Affinito testified in “several hundred” court cases. had seizures in the past and a personality In this context, retaining him was disorder that lowered his impulse control. reasonable. Both stated Affinito was an alcoholic and long-time abuser of various drugs. Both In addition, Ferretti’s examination based their conclusions on the fact that, on of Affinito was sufficient based on the the night of the murder, Affinito was record before us. One complaint of suffering from a convulsive disorder, was Affinito’s is that Ferretti interviewed him highly intoxicated and was attempting to for only fifty-five minutes. While Ferretti thwart a perceived homosexual advance may have interviewed Affinito for a from Cupsie. In addition, Ferretti’s use of shorter period of time than either Portnow the phrase “vulnerable brain” is not that or the State’s psychiatric expert, Affinito dissimilar from Portnow’s report does not state why, or even if, a fifty-five describing Affinito as a “congenitally minute interview is insufficient or contrary damaged individual” and a “central to professional standards. And as just nervous system damaged individual.” One stated, Ferretti’s uncontroverted testimony could take issue with Ferretti’s choice of establishes him as a psychiatric expert. words, but this does not demonstrate that While a short interview suggests the Russell’s reliance on Ferretti’s expert possibility of a less than thorough opinion was unreasonable. evaluation and an unprepared expert witness, Affinito fails to make a We conclude, however, that persuasive case that, even at this low Russell’s failure to provide Ferretti with threshold, his counsel was ineffective. Affinito’s statements to the police fell below any constitutionally required As for whether Ferretti reviewed standard of reasonable representation. any medical or personal documents, Affinito’s statement to the police differed
9 in several respects from the version of the mental health expert should be familiar. It incident told to Ferretti. Specifically, is almost inconceivable that Ferretti could Affinito failed to mention the second take the witness stand without knowing strangling at the junkyard. On cross- Affinito engaged in a second struggle with examination, Ferretti was asked a series of Cupsie at the junkyard and strangled him hypothetical questions to determine if his again. This was not a trial tactic, it was diagnosis of diminished capacity would gross incompetence. Even assuming the change, including the following: decision not to provide Ferretti these statements was deliberate, it satisfies the [I]f Affinito further threw first prong of Strickland. See United [the victim] in the trunk, States v. Tucker, 716 F.2d 576, 586 (8th drove him several blocks Cir. 1983) (stating that some “defense away from that location in a strategies may be so ill-chosen that they deserted area, opened the m a y r e n d e r c o u n s e l ’ s o v e r al l trunk and [the victim] was representation constitutionally deficient”).7 still alive and tried to get Any intimation to the contrary by the New out of the trunk and Affinito Jersey Courts is an unreasonable beat him and strangled him application of Strickland. and killed him at that spot, how about those factors? 2) Did Affinito Suffer Prejudice Because of His Counsel’s Error? Unbeknownst to Ferretti, this hypothetical mirrored the actual facts of the case. Having concluded that Russell’s Ferretti replied that, under those facts, he failure to provide Affinito’s statements to “would not apply diminished capacity at Ferretti was constitutionally deficient, we that point because I would think he examine whether this error satisfies the formulated intent.” second, or prejudice, prong of Strickland. To constitute prejudice, Russell’s error When the key issue in a criminal must undermine our confidence in the case is whether the defendant suffered outcome of the case. Strickland, 466 U.S. from diminished capacity, we can think of at 694. Admittedly, this error (leading to nothing more critical than ensuring that Ferretti’s reversal of opinion on cross- the defense’s psychiatric expert has as examination) de facto prevented Affinito complete and accurate a description of the facts and circumstances surrounding the crime as possible. The decision not to 7 avail Ferretti of Affinito’s statements All of this, of course, begs the defies logic. A defendant’s own question of why Russell did not simply tell statements to the police have to be some of Ferretti all the pertinent facts surrounding the most, if at times not the most, crucial Cupsie’s murder. This alone underscores documents with which an evaluating Russell’s lack of adequate assistance to Affinito.
10 from presenting any diminished capacity Portnow’s written report contained defense. many omissions and inconsistencies when compared to Perez’s eyewitness testimony. In the New Jersey Courts and In Portnow’s report, Affinito is quoted as before us, Affinito points to Portnow’s stating that Perez took out a pipe, put evaluation, made with full knowledge of white powder into it, and smoked it. But the facts of the case, as strong evidence Perez testified Affinito had pulled out a supporting his diminished capacity defense pipe and pretended to fill it with and undermining his conviction. In marijuana. Affinito is also quoted as response, the Appellate Division of the saying that Cupsie started “to climb out of Superior Court concluded on PCRA appeal his seat to get in the back with me.” Once that, had Portnow been called to testify, again, Perez testified that Affinito was “his conclusion would have been subject unprovoked and grabbed Cupsie unaware to a similarly damaging cross-examination from behind. Portnow’s report also fails to as was” Ferretti’s. Therefore, Affinito had address any of the specific facts that not demonstrated “a reasonable likelihood provide the context for Cupsie’s death — that a different result would have been such as Affinito’s expressed desire to take reached.” Under AEDPA, it is not for us the car, his talk of being able to render to determine whether we agree with, or Cupsie unconscious with a sleeper hold, would rule identically to, the New Jersey lulling Cupsie into a vulnerable position Courts. Our only inquiry is whether their with the ruse of smoking marijuna, the application of Strickland was objectively statement (when Cupsie was already unreasonable. It was not, even assuming bloody and unconscious) that Cupsie had that Portnow would have testified with full to be killed, the decision to dispose of the knowledge of the facts and would not have body in a junkyard, and the second abandoned the diminished capacity strangling upon discovering that Cupsie defense as Ferretti did.8 was not, in fact, dead. Unlike our dissenting colleague, we 8 We reject as unreasonable the believe these omissions and Appellate Division of the Superior Court’s inconsistencies terminally undermine conclusion on direct appeal that “it must A f f i n ito’ s def ens e. First, the be assumed that Dr. Portnow’s opinion is not based upon a complete recitation of the facts.” Portnow’s written report states have significantly discredited Portnow’s that Affinito’s and Perez’s statements to testimony), it is unreasonable nonetheless the police were a source of information. to assume Portnow had no knowledge of While it is certainly ironic that Portnow’s the information contained in these report omitted mention of the effect of statements, or that he would have those statements (and, as noted below, abandoned his diminished capacity cross-examination on this point would diagnosis as Ferretti did.
11 inconsistencies noted in the preceding the overwhelmingly one-sided nature of paragraph involve physical actions (who the evidence in this case and the failure of did what), not Affinito’s alleged auditory Portnow’s report to address this evidence hallucinations (who said what). (Per adequately, Affinito has failed to meet his Portnow’s report, Affinitio “denies visual demanding burden to demonstrate that the hallucinations and paranoid ideation.”) PCRA Court unreasonably applied Further, Portnow premised his opinion on Strickland. Cupsie initiating the altercation, writing in C. Erroneous Jury Instruction the “Conclusions” section of his report that “Cupsie made a physical advance towards On direct appeal, the prosecution Affinito which sparked off a seizure like conceded that Affinito was erroneously rage in Affinito.” But as just discussed, required to prove diminished capacity by a Perez testified that Cupsie made no preponderance of the evidence, violating physical advances in the car and was the his due process right to have the victim of an unprovoked attack. Because prosecution prove intent beyond a Affinito admittedly was not suffering from reasonable doubt. See Humanik v. Beyer, visual hallucinations, the lynchpin of 871 F.2d 432, 443 (3d Cir. 1989).10 The Portnow’s entire analysis is suspect. In Superior Court found harmless error, addition, Perez’s testimony is internally largely based on Ferretti’s admission on consistent, painting the story of a joyriding cross-examination that the actual facts of plan gone horribly wrong. Portnow’s the case were inconsistent with diminished report makes little attempt to put the capacity. But this only covers one events of the evening in context. cons titutional error (the incorrect Affinito had the opportunity to call Portnow, or another psychological expert, appropriate records . . . , it would have had to testify at the PCRA hearing, but failed a significant [e]ffect on the jury.” Yet the to do so (for whatever reason). In this preceding discussion demonstrates that context, we will not speculate on the Portnow’s report leaves much to be outcome of th eoretical testimony, desired. As Affinito had the opportunity especially when many of Affinito’s to put the opinion of a second expert in arguments on appeal are based on the play, we decline to offer him a third bite at supposed thoroughness and quality of the apple. We are not, however, Portnow’s evaluation and report. 9 Given unsympathetic to Affinito’s position. Were other psychological evidence favorable to Affinito in the record, our 9 For example, Affinito argues in conclusion might have been different. his brief that “had counsel . . . called an 10 expert witness, like Dr. Portnow, who was As noted by the Superior Court, capable and qualified to support the Affinito did not object to the jury defense and who had been provided with instruction at trial.
12 instruction) with another (the failure to (1946)).12 Overwhelming evidence that a provide Ferretti with all the facts of the defendant acted with intent may also case). Indeed, our dissenting colleague render an erroneous jury instruction argues that “[h]ad a properly prepared harmless. See id. at 118. expert testified, Affinito would have Based on the strong evidence in the obtained a new trial based on the record, and with scant evidence putting a erroneous diminished capacity instructions contrary outcome in play, we conclude that that infected his first trial.” the trial court’s erroneous instruction did This interrelating (some might say not have a substantial and injurious effect compounding) of errors, however, is on the jury’s verdict (even absent Ferretti ultimately harmless.11 “Humanik does not giving up Affinito’s diminished capacity compel or even permit us to grant [a writ defense). As detailed in the previous of habeas corpus] without considering section, the written report of Dr. Portnow whether the error was harmful. A contrary c o n t a in ed ma ny, a n d m a j o r, holding would violate well-settled inconsistencies and omissions when Supreme Cou rt precedent that ‘a compared to Perez’s uncontroverted constitutional error does not automatically eyewitness testimony. require reversal of a conviction.’” Further, the testimony of Dr. Perr, Kontakis v. Beyer, 19 F.3d 110, 115 (3d the State’s psychological expert, was Cir. 1994) (quoting Arizona v. Fulminante, comprehensive.13 Based upon extensive 499 U.S. 279, 306 (1991)). An error is harmless unless it “had [a] substantial and injurious effect or influence in determining 12 As we recognized in Kontakis, the jury’s verdict.” Id. (quoting Kotteakos the Supreme Court has ruled that in a v. United States, 328 U.S. 750, 776 habeas case, as opposed to a direct appeal, federal courts should apply the Kotteakos “substantial and injurious effect” test as opposed to the Chapman v. California, 386 U.S. 18 (1967), “beyond a reasonable 11 Despite AEDPA, we conduct an doubt” test used by the Superior Court. independent harmless error analysis See Brecht v. Abrahamson, 507 U.S. 619, because the Superior Court’s analysis was 637-38 (1993). based on an improper consideration — i.e., 13 Ferretti’s cross-examination testimony. While the record does not contain See Cone v. Bell, No. 99-5279, 2004 U.S. Dr. Perr’s written evaluation, his trial App. LEXIS 3882 at *33-34, 359 F.3d testimony covers seventy-five pages in the 785 (6th Cir. Mar. 1, 2004) (concluding record. Contrary to our dissenting the AEDPA standard of review did not colleague’s assertion, we believe this apply when no state court had considered testimony covers broadly, and at times in the particular issue to be decided). depth, Affinito’s medical health history.
13 testing and evaluation, Dr. Perr concluded IV. Conclusion that Affinito was of normal intelligence, Despite the two constitutional had issues with impulse control, and had errors before us, we nonetheless conclude an anti-social personality. Perr concluded, that the evidence of diminished capacity however, that Affinito did not suffer from was so threadbare, and the evidence of brain damage of any kind or from any knowing and purposeful intent to murder disorder that prevented him from forming so strong, that the jury’s guilty verdict was the requisite intent to commit knowing or not undermined. The errors — slipshod as purposeful murder. In addition, Perr noted they were and normally requiring a new that Affinito was not an epileptic per se, trial — in the circumstances of this unique had suffered only one possible seizure in case were harmless. Accordingly, we the seven years prior to the murder, and affirm the District Court’s denial of was not more susceptible to the influence Affinito’s petition for a writ of habeas of drugs and/or alcohol as a result of his corpus. past seizures. Finally, this conclusion was not in any way based upon the second strangling.14 RENDELL, Circuit Judge - dissenting. In this context, the evidence of As the majority notes, I disagree Affinito’s diminished capacity is so with its analysis of prejudice. In my view, underwhelming and remote that, even with but for the ineffectiveness of counsel, Ferretti’s concession aside and a correct there is a reasonable probability that the jury instruction in place, we perceive no outcome of Affinito’s trial would have reasonable likelihood of it prevailing. been different – namely, that Affinito Thus we disagree with the dissent’s would have been convicted of conclusions that Affinito had a “seemingly manslaughter, rather than murder.15 At the ironclad” winning argument on direct appeal and that there is a reasonable probability Affinito would have been 15 convicted of a lesser included offense at a I note that diminished capacity new trial. would only be a defense to those crimes where his mental disease or defect effectively negated the required mental state. N.J. Stat. Ann. § 2C:4-2 (2003). Here, it would appear to be a defense to 14 The following exchange occurred crimes requiring intent or knowledge, such on redirect examination: “Q. So, for your as murder and kidnapping, see id. §§ purposes you didn’t care if John Cupsie 2C:11-3, :13-1, but it would not shield died at Liberty Street or at the junkyard? Affinito from a conviction for some form A. That’s correct, that’s irrelevant to my of manslaughter where the requisite mens evaluation of the person, that is correct.” rea is recklessness, see id. § 2C:11-4.
14 very least, our confidence in the outcome why the woeful preparation of Ferretti, is undermined by the combined errors that leading to his abandonment of Affinito’s plagued his trial – an expert who major theory of defense, was so very abandoned Affinito, sealing his fate, and damaging. an erroneous jury instruction. As such, Several aspects of the way in which these errors were prejudicial, the state the trial played out as a result of counsel’s appellate court’s determination in ineffectiveness compel the conclusion I connection with the prejudice prong was reach. First, an expert psychiatrist in unreasonable, and habeas relief should possession of all relevant documents had have been granted. previously rendered an opinion stating that When we assess “reasonable A f f i n i t o e x p e r i e n c ed a u d i t o ry probability,” we are of necessity hallucinations, suffered from a major hypothesizing, or speculating to a certain psychotic disorder, and was congenitally extent, about another likely outcome. We damaged. This raises the distinct must imagine what alternative scenario probability that a similar opinion was might have played out if the claimed error obtainable (with proper preparation) and had not occurred. In a situation such as should have been offered. Moreover, this, the requisite mental state of intent and Portnow’s opinion referred to previous its relationship to any mental disease or hospitalizations and diagnoses of “major defect of the defendant is admittedly an affective disorder” and “borderline issue requiring expert testimony. The psychotic disorder.” This was quite unlike question of intent was critical here, and I the opinion of Dr. Perr, which the majority cannot help but believe that the outcome found to be comprehensive, as Perr would have been different if Affinito’s referenced no such mental health history mental condition and history had been or previous diagnoses. In addition, explained by an expert who had been counsel’s cross examination of Perr was properly prepared, to a jury that had been totally inept, concentrating only on properly instructed. sustained drug and alcohol use as the possible root of Affinito’s problems. The majority’s contention that there Absent the aid of a defense expert who was compelling evidence from which could provide an opinion supporting the intent could be determined is faulty. idea that Affinito suffered from Certainly, there were Affinito’s actions – diminished capacity, counsel was left with gruesome, cruel actions, which were no other basis for attacking Perr’s described to the jury by Perez. But do conclusions or challenging his testimony. these actions alone necessarily speak to Affinito’s state of mind at the time the The majority questions whether crime took place? The difficulty here is Portnow would have been effective on that without an expert to explain cross examination because the version of otherwise, they do. And that is precisely events outlined in the body of his report,
15 where he describes the story as related to the majority when asked about them at him by Affinito, differed from the version trial. relayed by Perez in his testimony. But to Further, the Superior Court me, any such variations between the two completely discounted the effect of accounts – and especially Affinito’s counsel’s obtaining another expert, such recounting of hearing voices, with the as Portnow, to testify. It incorrectly, and “sexy” voices getting louder and louder, as unreasonably, assumed that Portnow based described in Portnow’s report – would not his opinion on something other than a cast doubt on the basis for Portnow’s complete factual record. Such a opinion; rather, they would bolster the fact determination is clearly unfounded, since that, although he may not have been Portnow’s report explicitly indicates that experiencing visual hallucinations, he considered all of the pertinent Affinito perceived the events differently material.16 Having reached that incorrect from Perez. And, that was precisely the conclusion, the state court unreasonably point of Affinito’s diminished capacity stopped short of considering how an defense. explanation of the relevant history and Moreover, we should not assume, diagnoses by a qualified expert would based on the fact that Portnow primarily have impacted the trial. Such testimony, recounts the incident as Affinito described which I would by no means characterize it, that Portnow did not also take Perez’s as evidence that is underwhelming or version of the events into account. We do remote, would have provided a basis for know from his report that Portnow – the jury to find that Affinito’s actions were unlike Ferretti – did review Perez’s the product of his compromised mental statement to the police. If he did, then the functioning. inconsistencies in Affinito’s tale would The prejudice caused by the not be problematic as far as Portnow’s ineffectiveness of Affinito’s counsel was opinion is concerned. Since he was compounded by the trial court’s already aware of the contents of Perez’s instructions to the jury, which incorrectly statement, Portnow would presumably placed the burden of proof regarding state on cross examination that, while he mental state on Affinito. The trial court referenced Affinito’s account in the body of his report, he considered the facts relayed by Perez as well when he formed 16 his opinion. Unless Perez’s trial testimony The majority concedes as much, differed dramatically from the story he yet curiously still defends as reasonable told police initially, it is not a stretch to the state court’s assumption that Portnow assume that Portnow would have been would have been susceptible to the same prepared to explain or reconcile any of the damaging cross examination as Ferretti perceived inconsistencies referenced by based on his failure to explicitly reference certain facts in the body of his report.
16 expounded at length – for nearly seven erroneous instructions by the trial court pages of the trial transcript – on the law of doomed Affinito, when he had presented diminished capacity, repeatedly stating no expert opinion to fulfill his purported that it was the defendant’s burden to prove “burden” of proving mental state. Thus, that his mental disease or defect had Ferretti’s testimony not only robbed prevented him from forming the intent Affinito of a defense, it also robbed him of required by the murder and kidnaping a seemingly ironclad argument on direct statutes. In other words, the trial court appeal based on the improper allocation of instructed the jury that the defendant had the burden of proof on this very issue! to disprove the mental state elements of Had a properly prepared expert the crimes charged. This instruction was testified, Affinito would have obtained a admittedly erroneous in light of our new trial based on the erroneous decision in Humanik, because it diminished capacity instructions that improperly relieved the prosecution of the infected his first trial. And, had a proper burden of proving an element of the crime, jury instruction been given at his new trial, as the Superior Court recognized. requiring the Commonwealth to prove that Additionally, with Ferretti’s collapse and Affinito’s crime was not the result of a no expert testimony supporting a mental disease or defect, there is a diminished capacity defense, the defense reasonable probability that, given had offered no proof whatsoever with Portnow’s diagnosis of his mental regard to mental state. disorder, the jury would have convicted Here, again, the Superior Court Affinito of a lesser included offense. failed to comprehend the significance of Thus, the error here was not clearly the combined effect of these two errors. harmless, as the majority concludes. Since On direct appeal, the court determined that the state court’s analysis and the jury instruction error was harmless. d e t e r m i n a t i o n r e g a r d in g t h e The court based this conclusion on its ineffectiveness of Affinito’s counsel was observation that Ferretti’s testimony, an unreasonable application of Strickland, offered by the defense, had proven that I submit that the writ should issue Affinito had formed intent, presumably affording Affinito a new trial. meeting the Commonwealth’s burden. Then, during the state post-conviction proceedings, the Superior Court unreasonably determined that any ineffectiveness on the part of Affinito’s trial counsel had not caused Affinito prejudice, without considering how the proceedings on direct appeal were impacted by counsel’s incompetence. The court failed to realize that the prolonged 17