STATE OF NEW JERSEY v. ALFRED R. BISHOP

In March 2005 defendant pled guilty to aggravated

manslaughter, terroristic threats and unlawful possession of a

handgun, which arose out of three events that occurred in a

single day. Defendant is serving an aggregate twenty-seven year

term of imprisonment; twenty years to be served without parole.1

In our first review of defendant's PCR petition, we found

the judge's decision to dismiss the majority of the claims to be

appropriate but we remanded for an evidentiary hearing on

defendant's claim that "defense counsel provided ineffective

assistance of counsel because he failed to consult with an

expert concerning defendant's mental health." State v. Bishop,

No. A-0358-09 (App. Div. Jan. 3, 2011) (slip op. at 9).2

On remand, defendant, his trial counsel and David Bogacki,

Ph.D., testified at the hearing. Defendant described his mental

health history as beginning at age nine or ten when he began to

hear voices that would tell him to hurt himself or others. He

was prescribed medication that caused the hallucinations to

disappear. He was arrested several times as a juvenile, and

while in detention regularly took his medication and "was fine."

He continued to receive psychiatric care for several years but

then stopped taking the medication at age twenty-one and the

hallucinations returned.

On the day he committed the offenses, defendant stated he

only recalled the one event in which he pulled the trigger of a

gun that killed a young woman. He said he was in a "trance" and

described it as if he was "in a world outside of the norm. . . .

It's like something's taking over me." He remembered a voice

telling him to play with a gun and as he did so, it went off,

shooting the victim. He recalled leaving the house, and calling

a cab to go to his brother's home. He then went to his aunt's

house in Washington D.C. where he was subsequently found and

arrested.

Defendant recalled telling his brother right after the

shooting that he "got into some trouble" and telling a friend

that he had just done "the worst thing you [can] do." He called

another friend, telling her he needed "to get out of town

because [he had done] something bad." Finally, defendant

acknowledged that during his statement to the police he never

told them he was in a trance or that a voice had told him to

shoot the gun. As to conversations with his defense counsel,

defendant testified that he told his attorney that he had mental

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health issues to which counsel responded that his mental health

would not be a defense.

Defense counsel, admitted to the bar for twenty-four years,

stated he was privately retained by defendant, having

represented him in several previous criminal matters. Counsel

was aware of defendant's mental health history. After a

consideration of whether to have defendant undergo a mental

health evaluation, counsel advised against it. He explained

that the facts which would have been presented at trial would

have negated any potential mental capacity defense because of

the behavior defendant "exhibited during, immediately after and

going through the time line after the offense." He did not

believe that diminished capacity or insanity were viable

defenses.

Counsel further explained that there was an opportunity

for defendant to resolve the matter with a lesser sentence and

that he did raise the subject of defendant's mental health

history in his conversations and negotiations with the

prosecutor. He concluded: "I was very confident that the risks

in trying to present a defense of diminished capacity and/or

insanity, while likely being unsuccessful, would expose Mr.

Bishop to a tremendously longer state prison sentence."

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Bogacki conducted a psychological evaluation of defendant

in 2012 and presented testimony on his findings at the hearing

in July 2013. Although the doctor was aware of defendant's

history of psychotic symptoms, the testing and evaluation did

not reveal such symptoms and the doctor found his regime of

medications to be stabilizing. He noted defendant had been

previously diagnosed with a schizoaffective disorder and

paranoid schizophrenia when hospitalized but that his

incarceration had permitted him to take his medications

regularly, thus stabilizing his condition.

Based upon defendant's long-term history of psychiatric

problems, Bogacki concluded that at the time of the shooting

defendant was suffering from a mental illness in the psychotic

spectrum of disorders. The doctor agreed that defendant's

behavior following the shooting was indicative of someone who

was aware that their actions were wrong. Bogacki acknowledged

that in the nine hundred pages of medical records he reviewed,

there were no statements made by defendant that a voice had told

him to shoot the victim. In fact, at all times defendant

claimed the shooting had been an accident.

In a comprehensive oral decision delivered on January 2,

2104, Judge Kyran Connor found trial counsel to be "an

experienced practitioner of criminal law who had handled mental

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health-related defenses over the course of 20 years of practice.

I find he was a man with the experience to know when an insanity

or diminished capacity defense would play well before a jury."

Judge Connor noted the "infirmities" relating to defendant's

mental health defense.

[T]here is no diagnosis or opinion that squarely holds that Mr. Bishop at the time of this crime labored under such a defect or reason from a disease of the mind that he did not know the nature and quality of his action or that if he did know it, he did not know that what he was doing was wrong.

The judge commented that in his review of the voluminous medical

information, never had defendant said that he was in a trance or

responding to a voice when he shot the victim. He always

referred to the shooting as an accident.

In assessing the effectiveness of counsel under the two

prongs set forth in Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the judge

found that trial counsel was a

fully credible witness. I conclude that he exercised his best professional judgment in assessing Mr. Bishop's options in that he reasonably excluded a mental health defense as a viable option based on all the factors to which I've already averted, but most especially based on defendant's confessions and his clear demonstrations of a consciousness of guilt.



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Because of his findings on the first prong, it was not

necessary for the judge to reach the second prong but he

addressed it nevertheless, finding that defendant received a

favorable plea offer and counsel's use of the mental health

history was a factor in obtaining the offer from the prosecutor.

He rejected defendant's argument that he was prejudiced by

counsel's failure to obtain a mental health evaluation.

On appeal defendant argues:

PCR COURT ERRED IN DENYING THE PETITION BECAUSE TRIAL COUNSEL'S FAILURE TO RETAIN A MENTAL HEALTH EXPERT BEFORE NEGOTIATING A PLEA ELIMINATED THE MAXIMUM EFFECTIVE USE OF BISHOP'S MENTAL HEALTH DEFENSES.

We are not persuaded by this argument. The standard for

determining whether counsel's performance was ineffective for

purposes of the Sixth Amendment was formulated in Strickland,

supra, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674, and

adopted by our Supreme Court in State v. Fritz, l05 N.J. 42

(l987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of

establishing both that: (l) counsel's performance was deficient

and he or she made errors that were so egregious that counsel

was not functioning effectively as guaranteed by the Sixth

Amendment to the United States Constitution; and (2) the defect

in performance prejudiced defendant's rights to a fair trial

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such that there exists a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, supra, 466 U.S. at 687,

694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We are satisfied from our review of the record that

defendant failed to meet his burden of proof as to a showing of

ineffectiveness of trial counsel within the Strickland-Fritz

test. Trial counsel assessed whether defendant's mental health

history could be a viable defense to the charges and concluded

that insanity and diminished capacity would not be supported by

the admissible facts. Defendant's actions after the shooting

demonstrated that he was aware and understood that what he had

just done was wrong. Furthermore, in the extensive discussions

with mental health professionals in the years following this

incident, not once had defendant offered that he was in a trance

at the time of the shooting or being directed by voices; he had

always described it as an accident.

We find that Judge Connor's conclusion that trial counsel's "representation was well within the range of adequacy, which the Sixth Amendment guarantees,"

was supported by the credible evidence in the record.



Affirmed.