Affinito v. Hendricks

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Precedential or Non-Precedential: Precedential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

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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