In this recent appeal, the defendant’s trial attorney failed to state why he was not moving to sever defendant’s trial from that of his codefendant. This omission has already won the defendant an evidentiary hearing and could possibly lead to the reversal of his conviction.
State v. Ruel Russell, unpublished opinion, App. Div. Docket No. A-3249-08T4 (October 8, 2010) – Denial of PCR reversed, case remanded for evidentiary hearing.
“[Defendant] argues that his trial counsel was ineffective because he failed to move for a severance, failed to consult an expert toxicology witness, and conceded guilt on all but one charge without his consent…. Having duly made the argument concerning his trial attorney’s failure to seek a severance – the reason for that omission not having been disclosed during trial – the judge should have permitted an evidentiary hearing so that defendant’s trial attorney’s reasons for failing to seek a severance could have been developed. Certainly, the contention that defendant’s position at trial was at odds with Scott’s is suggested by the evidence adduced at trial. At that time, Scott asserted the defense of duress and testified that defendant threatened his and his family’s wellbeing if he refused to cooperate in committing the crimes…. Second, defendant contends that his trial attorney was ineffective because he failed to consult an expert about whether the elemental mercury was lethal…. The State’s expert, Andrews, opined without objection that elemental mercury is a toxic, poisonous substance that is lethal and can be absorbed into the skin…. Andrews was the only expert to testify about the lethality of the elemental mercury in the syringes. In seeking post-conviction relief, defendant provided an expert report, which opined that the contents of the syringes were not lethal. Certainly, it would have been more advantageous to defendant to have called such an expert at trial to contradict Andrews’ opinions rather than to attempt to rebut Andrews’ opinions through cross-examination…. Third, defendant contends that his trial counsel was ineffective because counsel conceded guilt to the lesser charges without defendant’s consent…. And in his closing statement he said, ‘In regards to what happened in Asbury Park, I’m going to confine myself to the charge of attempted murder.’ On remand, counsel should explain why guilt was conceded on the lesser charges and whether defendant consented to this trial strategy. Without an evidentiary hearing, we are unable to determine why counsel conceded the lesser charges or whether defendant consented.”