Opinion
DOCKET NO. A-4214-13T3
02-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHERLOCK BAPTISTE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0526. Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Sherlock Baptiste appeals from an order entered by the Law Division on February 11, 2014, denying his petition for post-conviction relief (PCR). We affirm.
I.
We briefly summarize the relevant facts and procedural history. Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2b (count three); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count four); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (count five); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count six).
Defendant was tried before a jury. At the trial, evidence was presented which established that defendant resided with A.T., her mother M.T., and her younger twin siblings. M.T. would take A.T. to school, and defendant would pick her up at the end of the school day. M.T. worked until 5:00 p.m., and she usually returned home around 6:00 p.m., after she picked up the twins.
A.T. testified that defendant sexually abused her first in January or February 2005, when she and defendant were home alone. According to A.T., defendant sexually abused her again the following day, and repeated the sexual abuse approximately twice a week for the remainder of the school year. A.T. was in the sixth grade at the time. That summer, A.T. stayed with relatives in South Carolina. When she returned to New Jersey and school resumed in the fall, defendant's sexual abuse continued, although in November 2005, the abuse was less frequent because, at that time, A.T. would stay at a teacher's house after school until M.T. picked her up.
In January 2006, A.T. reported to a school counselor that defendant had been "touching" her. M.T. was called and informed of what A.T. had reported. M.T. confronted defendant with A.T.'s allegations, which he denied. M.T. did not believe defendant and demanded that he leave the house. When M.T. picked up A.T. at school that day, she told her mother about the sexual abuse.
M.T. and A.T. reported the matter to the police and a warrant was issued for defendant's arrest. When the police went to defendant's work place to take him into custody, he fled on foot. The officers called out to defendant, telling him to "stop." Defendant continued to run, and the officers apprehended defendant as he attempted to enter a wooded area.
Defendant was taken to police headquarters, and informed of his Miranda rights. He signed a waiver of his rights, and he was questioned by detectives. They confronted him with A.T.'s allegations. Defendant claimed he had only "played" with A.T. Defendant said he did not think he had "penetrated her." He acknowledged, however, that he may have come into contact with A.T.'s private parts. Defendant also admitted putting his face down upon A.T., but said he really did not "penetrate her vagina."
At trial, defendant denied sexually assaulting A.T. He admitted that he had "played" with and "tickled" her, but denied these touchings were sexual in nature. Defendant stated that he fled from the police because he owed $15,000 in child support arrears and did not want to be arrested. He denied hearing the officers tell him to "stop."
Defendant claimed he first heard of A.T.'s allegations when he was brought to the police station. He acknowledged that M.T. told him to move out of her home. Defendant stated that he moved out because M.T. was receiving housing assistance, the housing inspectors were coming to the residence, and he was not supposed to be residing in her home. He admitted, however, that he did not return to M.T.'s home.
Defendant was found guilty of all charges. The court sentenced defendant to an aggregate term of fifteen years of incarceration, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed from the judgment of conviction dated June 13, 2008, and raised the following arguments:
POINT I
THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY VOUCHING FOR THE CREDIBLITY OF FOUR OF ITS FIVE WITNESSES, INCLUDING PLEAS TO THE JURY THAT A YOUNG VICTIM OF SEXUAL ASSAULT WOULD NOT LIE, THE VICTIM'S MOTHER WOULD NOT LIE TO HELP HER DAUGHTER, AND POLICE OFFICERS DO NOT LIE (NOT RAISED BELOW)
POINT II
THE STATE DEPRIVED DEFENDANT OF A FAIR TRAIL BY COMMENTING ON DEFENDANT'S FAILURE TO PRODUCE CERTAIN EVIDENCE (NOT RAISED BELOW)
POINT III
THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY MISREPRESENTING TO THE JURY WHAT WITNESSES SAID WHILE TESTIFYING (NOT RAISED BELOW)
POINT IV
THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY HIGHLIGHTING IN ITS CLOSING ARGUMENT THAT DEFENDANT'S EXERCISING HIS RIGHT TO TESTIFY WAS SOLELY TO "COME IN HERE AND LIE" BECAUSE HE HAD NO OTHER WAY TO DEFEND AGAINST THE CHARGES (NOT RAISED BELOW)
POINT V
DEFENDANT'S FIFTEEN YEAR SENTENCE IS EXCESSIVE AND REQUIRES A REMAND FOR RESENTENCING AND, REGARDLESS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
POINT VI
THE TRIAL COURT ERRED IN UNDULY RESTRICING THE SCOPE OF THE RULE 104 HEARING ON TESTIMONY OF PRIOR FALSE ALLEGATIONS OF SEXUAL ABUSE (NOT RAISED BELOW)
In an unpublished opinion, we affirmed defendant's convictions and sentence. State v. Baptiste, No. A-3035-08 (App. Div. Sept. 2, 2010).
II.
Defendant filed a pro se petition for PCR dated November 21, 2012, alleging that trial counsel: (1) did not have the time or resources to investigate and prepare the defense adequately; (2) erred by failing to seek an adjournment of the trial; (3) did not communicate adequately with defendant; (4) did not meet with defendant in jail or accept his phone calls, or the calls of family members; (5) was ineffective in failing to investigate and raise relevant defenses; (6) was ineffective in failing to investigate the veracity of the victim, who had a history of making similar allegations against individuals in the past; (7) was ineffective because he failed to retain an expert witness to support relevant defenses at trial; (8) did not investigate the testimony of defendant's sister, who would have informed the jury that A.T.'s allegations were false; (9) did not present a defense of diminished capacity; (10) was ineffective in failing to object to prosecutorial misconduct during trial and closing arguments; and (11) failed to raise and argue zealously all pertinent arguments at sentencing, leading to an excessive sentence. In addition, defendant claimed he had been denied the effective assistance of appellate counsel.
The trial court appointed counsel for defendant, and counsel filed an amended petition, alleging that: (1) defendant's counsel did not confer with defendant in a meaningful way, which materially contributed to defendant's conviction; (2) counsel failed to present exculpatory testimony at trial, which denied defendant his right to present a defense; (3) appellate counsel was ineffective because counsel did not raise ineffectiveness of defense counsel on direct appeal; (4) the court should conduct an evidentiary hearing because defendant has established a right to PCR by a preponderance of the evidence; and (5) the court should consider all arguments raised by defendant in his pro se petition.
The PCR court filed a letter opinion dated February 6, 2014, finding that defendant's claims were meritless. The court entered an order dated February 11, 2014, denying PCR. This appeal followed.
On appeal, defendant raised the following arguments:
POINT I
TRIAL DEFENSE COUNSEL FAILED TO CONFER WITH [DEFENDANT] IN A MEANINGFUL MANNER PRIOR TO TRIAL, CONTRARY TO HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, THEREBY CONTRIBUTING TO HIS CONVICTION, AND AN
EVIDENTIARY HEARING SHOULD HAVE BEEN ORDERED BY THE TRIAL COURT TO ALLOW [DEFENDANT] TO ESTABLISH HIS CLAIM.
POINT II
THE PCR COURT IMPROPERLY RELIED UPON THE REPUTATION OF TRIAL DEFENSE COUNSEL WHEN THE COURT DENIED [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF, AND IT SHOULD NOT HAVE DENIED RELIEF BASED UPON THE FAILURE OF [DEFENDANT] OR TRIAL DEFENSE COUNSEL TO EXPRESS ANY CONCERNS.
POINT III
ALL OTHER CLAIMS RAISED BY [DEFENDANT] SHOULD BE CONSIDERED BY THE COURT AS PER STATE v. WEBSTER, 187 N.J. 254 (2006).
III.
Defendant argues that he was denied the effective assistance of trial counsel because his trial attorney failed to confer with him in a meaningful manner. Defendant contends trial counsel did not have sufficient time to prepare for trial, and erred by failing to seek an adjournment of the trial. He contends he was denied "his right to effective cross-examination and an effective presentation of a defense."
We are convinced that defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we note the following.
Defendant's claim that he was denied the effective assistance of trial counsel is considered under the two-part test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We are convinced that the record supports the PCR court's determination that defendant failed to establish he was denied the effective assistance of counsel under the Strickland test. Defendant did not show that his attorney's handling of the case fell below an objective standard of reasonableness.
Although trial counsel did not seek an adjournment of the trial, there is no indication that counsel required additional time to prepare. The record shows that counsel conferred at times with defendant before the trial commenced, and counsel had an opportunity to discuss with defendant his decision on whether to testify. Defendant failed to show that counsel's purported failure to discuss the case with him rose to the level of constitutionally-inadequate representation.
In addition, there is no merit to defendant's contention that his attorney was ineffective because counsel failed to present defendant's daughters as witnesses. Defendant's sexual abuse of A.T. allegedly occurred at M.T.'s home, over the course of many months, while defendant was alone with A.T. Defendant's daughters visited the home at various times; however, they were not present when the abuse was alleged to have occurred. Thus, the testimony of defendant's daughters would not have significantly aided the defense.
Defendant's claim that his counsel failed to conduct an adequate cross-examination of A.T. also finds no support in the record. The record shows that during cross-examination, defense counsel challenged A.T.'s credibility. Although defendant asserts that counsel should have confronted A.T. with the fact that she did not report the abuse to his older daughter, A.T. might have been reluctant to report the alleged abuse to defendant's daughter. Moreover, defendant's counsel questioned A.T. about her conflicts with defendant regarding homework, and defendant's attempts to discipline her.
We note that any effort by counsel to undermine A.T.'s credibility was substantially undermined by defendant's statement to the police, in which he admitted, among other things, that he may have come in contact with A.T.'s private parts, but did not think he had "penetrated her." Thus, even if counsel's cross-examination of A.T. was less rigorous than it might otherwise have been, defendant failed to show that further questioning of A.T. would have undermined A.T.'s credibility to such a degree that it would have probably led to a different result.
Defendant further argues that the PCR court erred by relying on the reputation of trial counsel in denying relief. In his letter opinion, the PCR judge observed that defendant's attorney was a "noted criminal defense attorney with vast experience." That observation was not, however, essential to the court's decision, which was based on its review of the trial record. Thus, even if the judge erred by commenting upon trial counsel's reputation, the error was harmless.
We also reject defendant's contention that the PCR judge erred by failing to conduct an evidentiary hearing on his petition. An evidentiary hearing is required only when a defendant establishes a prima facie case in support of PCR; the court determines that there are material issues of fact that cannot be resolved by review of the existing record; and an evidentiary hearing is required to resolve defendant's claims for relief. State v. Porter, 216 N.J. 343, 355 (2013) (citing R. 3:22-10(b)). Here, the existing record provided a sufficient basis for resolution of defendant's claim of ineffective assistance of counsel, and defendant failed to establish a prima facie case for PCR. Thus, an evidentiary hearing was not required.
We have also considered the arguments raised by defendant in his pro se submissions, and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).