Opinion
DOCKET NO. A-5232-12T3
09-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.D., Defendant-Appellant.
Vincent J. Sanzone, Jr., attorney for appellant. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Haas. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-0370. Vincent J. Sanzone, Jr., attorney for appellant. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant D.D. appeals from a June 13, 2013 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel without an evidentiary hearing. We affirm on the basis of the thorough, well-reasoned opinion of Judge Walter L. Marshall, Jr., who presided over defendant's trial.
Defendant was convicted by a jury of two counts of first-degree and one count of second-degree sexual assault on three boys all under the age of twelve, N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b). He was also convicted of three counts of child endangerment, N.J.S.A. 2C:24-4(a). After appropriate mergers, defendant was sentenced to an aggregate term of forty years, with an eighty—five percent period of parole ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In our unpublished decision affirming his convictions and sentence on direct appeal, we set forth the facts adduced at trial in detail. State v. D.D., No. A-1682-09 (App. Div. Jan. 27, 2012) (slip op. at 1-21). We summarized the facts as follows:
This criminal episode spanned several years, from approximately January 2001 to September 2004; occurred at defendant's hometown of . . . where he lived with his wife and two daughters, as well as other locales; and involved three boys — J.W., J.F. and B.M. — who were between six and nine years old when they first met defendant, and who were thereafter sexually abused by him until they were about ten or eleven years old. Up to then, the boys frequently played at defendant's house, where the rules were more lenient than at their homes, and on weekends slept overnight
in the basement, where much of the sexual abuse took place. They also played at least one season on the soccer team that defendant coached. Defendant and his wife became friendly with their parents who trusted him and had no qualms about letting their children spend time with him. Defendant bought gifts for the boys, and took them to restaurants (J.F., J.W., and B.M.), the mall (J.W. and J.F.), amusement parks (J.W.), and campgrounds (J.W.). At time of trial, J.W. and B.M. were fifteen years old and J.F. was fourteen years old.
[Id. at 2-3.]
On direct appeal, defendant raised the following points:
I. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO PRESENT HIS VERSION OF THE FACTS AND TO CONFRONT WITNESSES AGAINST HIM [AND HIS RIGHT OF CONFRONTATION] WAS VIOLATED WHEN THE COURT EXCLUDED THE DEFENSE FROM CROSS-EXAMINING J.F. AND HIS MOTHER ON THE "BLACKMAIL" TAPE WHICH J.F.'S MOTHER SECRETLY RECORDED TO EXTORT MONEY FROM THE DEFENDANT. (Raised Below).
A. THE AUDIO TAPE OF J.F. RECORDED BY HIS MOTHER, [D.W.] BECAME AN IMPORTANT PIECE OF EVIDENCE FOR THE STATE WHEN THE DEFENDANT COULD NOT CONTEST ITS CONTENTS THUS DENYING THE DEFENDANT A FAIR TRIAL. (Raised Below).
II. THE YAHOO CHATS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE NO PROPER FOUNDATION WAS LAID, AND NO CHAIN OF CUSTODY WAS ESTABLISHED. (Not Raised Below).
III. THE STATE WITHHELD IMPORTANT EXCULPATORY INFORMATION IN THIS CASE BY NOT DISCLOSING IMPORTANT IMPEACHMENT INFORMATION REGARDING [R.P.]'S SENTENCING CONSIDERATIONS WITH HIS OPEN FEDERAL AND STATE CRIMINAL CHARGES. (Not Raised Below).
IV. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO PRESENT HIS THEORY AND VERSION OF THE FACTS WHEN HE WAS DENIED HIS ABILITY TO CROSS-EXAMINE J.W. ON J.W.'S PRIOR ALLEGED HOMOSEXUAL EXPERIENCE WITH ANOTHER YOUNG BOY. (Raised Below).
V. THE TRIAL COURT ERRED IN NOT ALLOWING DEFENSE COUNSEL TO RECALL J.W. FOR THE PURPOSE OF IMPEACHING HIM WITH THE AUDIO VISUAL TAPE OF D.M. (Raised Below).
VI. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DURING THE TESTIMONY OF J.W. PROSECUTOR DANA PALEY GAVE HEAD, FACIAL AND HAND SIGNALS TO THE WITNESS IN THE ATTEMPT TO COACH THE WITNESS AND ELICIT FAVORABLE TESTIMONY FOR THE STATE. (Not Raised Below).
VII. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE PROSECUTOR DANA PALEY ENGAGED IN WITNESS TAMPERING FOR THE SECOND TIME WHEN SHE VIOLATED THE SEQUESTRATION ORDER BY INFORMING A DEFENSE WITNESS WHAT THE TRIAL TESTIMONY WAS AS IT RELATED TO HIM, AND CRIMES THAT HE MAY HAVE COMMITTED. (Not Raised Below).
VIII. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DETECTIVE JASMIN CALDERON WHO TESTIFIED AS A FACTUAL WITNESS, IN FACT TESTIFIED AS AN EXPERT WITNESS FOR THE STATE, AND GAVE AN ULTIMATE OPINION REGARDING THE CREDIBILITY OF THE ALLEGED VICTIMS, AND ABOUT CHILD ABUSE ACCOMMODATION SYNDROME. (Not Raised Below).
A. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE DETECTIVE CALDERON TESTIFIED AS AN EXPERT WITNESS BUT NO EXPERT WITNESS JURY CHARGE WAS GIVEN BY THE TRIAL COURT. (Not Raised Below).
IX. DEFENSE COUNSEL'S TRIAL ERRORS WERE SO NUMEROUS THAT HIS PERFORMANCE WAS PER SE
INEFFECTIVE THUS DENYING THE DEFENDANT A FAIR TRIAL. (Not Raised Below).
A. DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE WAS NOT FAMILIAR WITH THE COURT RULES AND WAITED UNTIL THE DAY OF TRIAL TO INFORM THE COURT AND STATE THAT THE DEFENSE WOULD BE CALLING TWO EXPERT WITNESSES TO TESTIFY ON BEHALF OF THE DEFENDANT. (Not Raised Below).
B. DEFENSE COUNSEL WAS INEFFECTIVE AS A MATTER OF LAW BECAUSE HE WAS UNFAMILIAR WITH JUDGE FARRELL'S PREVIOUS RULING IN THIS CASE. (Not Raised Below).
C. DEFENSE [COUNSEL] WAS INEFFECTIVE WHEN HE PLAYED AUDIO TAPES OF THE ALLEGED VICTIMS WHICH JUDGE FARRELL HAD PREVIOUSLY RULED WERE INADMISSIBLE BECAUSE THEY WERE HIGHLY PREJUDICIAL AND CONTAINED IMPERMISSIBLE HEARSAY. (Not Raised Below).
D. DEFENSE COUNSEL WAS SO INEFFECTIVE THAT HE ATTEMPTED TO ADMIT INTO EVIDENCE HIGHLY PREJUDICIAL HEARSAY POLICE REPORTS. (Not Raised Below).
E. DEFENSE COUNSEL WAS SO DEFICIENT AND INEFFECTIVE THAT HE DID NOT COMPLY WITH THE RAPE SHIELD LAW, AND HENCE, THE DEFENDANT WAS NOT PERMITTED TO INTRODUCE A PRIOR SEXUAL EXPERIENCE OF J.W. (Not Raised Below).
F. DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO CRITICAL LEADING QUESTIONS BY THE PROSECUTOR DURING THE DIRECT EXAMINATION OF B.M. (Not Raised Below).
X. THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE OR IN THE ALTERNATIVE AN EVIDENTIARY HEARING WHILE CRITICAL WITNESSES
WERE AVAILABLE FOR TESTIMONY. (Not Raised Below).
XI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
XII. THE COURT ERRED BY DENYING DEFENDANT HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL. (Defendant's supplemental pro se Point I).
XIII. THE STATE'S BRIEF WAS SUBMITTED OUT OF TIME. (Defendant's supplemental reply pro se Point I) (Not Raised Below).
Defendant's first point on direct appeal involved an inconsistency between a ruling by the motion judge, Judge Timothy G. Farrell, and Judge Walters. Judge Walters did not permit the use of a tape recording on cross-examination at trial. Judge Farrell had earlier found the tape partially inaudible, but nevertheless ruled that it would be admissible for cross-examination only. In rejecting defendant's argument to reverse his convictions on the basis of these somewhat inconsistent rulings, we stated:
There was overwhelming evidence of defendant's guilt, and any prejudice caused by the failure to allow defendant to use this tape during cross-examination of witnesses was unlikely to mislead the jury into arriving at a result it otherwise might not have reached.
[Id. at 31 (citations omitted).]
When rejecting defendant's argument in Point VIII, which concerned the testimony of Detective Calderon, we stated:
In the first place, Calderon was called as a defense witness. She testified extensively on direct examination about her background and training in Finding Words, RATAC ("rapport building, anatomy inquiry, touch inquiry, abuse scenario and closure"), and the CSAAS [Child Sexual Abuse Accommodation Syndrome] syndrome. She explained that it is often difficult for children to disclose sexual abuse, and that they are frequently forced into secrecy because of shame, fear, guilt, or threats. Children also feel entrapped and helpless, and boys worry about being labeled homosexuals.
[Id. at 37.]
We detailed the strength of the State's case in considering defendants arguments on direct appeal and noted that any error in the trial did not lead to an unjust result.
In his PCR appeal defendant raises the following issues:
POINT ONE: THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S PCR BASED ON THE NUMEROUS TRIAL ERRORS WHICH RENDERED HIS REPRESENTATION INEFFECTIVE. (Raised Below).
POINT TWO: THE TRIAL COURT ERRED IN HOLDING THAT TRIAL COUNSEL'S FAILURE TO KNOW JUDGE FARRELL'S PREVIOUS ORDER WAS HARMLESS. (Raised Below).
POINT THREE: TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO FILE A MOTION UNDER THE RAPE SHIELD LAW AND THE TRIAL COURT'S FINDING THAT IT WAS NOT INEFFECTIVE IS CONTRARY TO THE COURT'S ORIGINAL FINDING AT TRIAL. (Raised Below).
POINT FOUR: TRIAL COUNSEL WAS PER SE INEFFECTIVE WHEN HE DID NOT OBJECT TO DETECTIVE JASMIN ROMAN-CALDRONE TESTIFYING
AS AN EXPERT WITNESS FOR THE STATE WHO GAVE AN ULTIMATE OPINION REGARDING THE CREDIBILITY OF THE ACCUSERS AND ABOUT CHILD ABUSE ACCOMMODATION SYNDROME, AND BEING ASKED 43 LEADING QUESTIONS BY THE STATE WITHOUT ONE OBJECTION. (Raised Below).
POINT FIVE: DEFENSE COUNSEL'S TRIAL ERRORS WERE SO NUMEROUS THAT HIS PERFORMANCE WAS PER SE INEFFECTIVE THUS DENYING THE DEFENDANT A FAIR TRIAL. (RAISED BELOW)
A. DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE WAS NOT FAMILIAR WITH THE COURT RULES AND WAITED UNTIL THE DAY OF TRIAL TO INFORM THE COURT AND STATE THAT THE DEFENSE WOULD BE CALLING TWO EXPERT WITNESSES TO TESTIFY FOR THE DEFENDANT. (Raised Below).
B. DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE PLAYED AUDIO TAPES OF THE ALLEGED VICTIMS WHICH JUDGE FARRELL HAD PREVIOUSLY RULED WERE INADMISSABLE BECAUSE THEY WERE HIGHLY PREJUDICAL AND CONTAINED IMPERMISSIBLE HEARSAY. (Raised Below).
C. DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO CRITICAL LEADING QUESTIONS BY THE PROSECUTOR DURING THE DIRECT EXAMINATION OF B.M. (Raised Below).
D. DEFENSE COUNSEL WAS SO INEFFECTIVE THAT HE ATTEMPTED TO ADMIT INTO EVIDENCE HIGHLY PREJUDICIAL HEARSAY POLICE REPORTS. (Raised Below).
A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987). An evidentiary hearing is only necessary if defendant has made a prima facie demonstration of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992). A defendant must set forth more than "bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Judge Marshall in his opinion reviewed the failure of counsel to file a motion pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7, to allow him to cross-examine one of the victims about a purported homosexual relationship he had with another male child "to show that J.W. had an alternative source of knowledge regarding homosexual sex and explain[] the source of his trial testimony regarding his homosexual acts with [][d]efendant." J.W.'s father believed his son engaged in sexual conduct with another boy and beat them both. He also relayed his suspicions to the other boy's father. The victim denied in his testimony on the stand that any such sexual activity occurred between himself and the other child. Thus the evidence of homosexual conduct between the two boys was not strong and does not meet the requirement that "evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact." State v. Schnabel, 196 N.J. 116, 130 (2008)(quoting State v. Garron, 177 N.J. 147, 172 (2002)). "The probative value of the prior acts depends on clear proof that they occurred . . . ." State v. Budis, 125 N.J. 519, 533 (1991).
The judge instructed the jury to disregard all testimony regarding this incident.
Defendant also claims that his attorney was ineffective in not calling expert witnesses. On the first day of trial, defense counsel sought an adjournment to secure the presence of two expert witnesses. Defense counsel indicated that he wanted to call these witnesses to rebut the State's expert, who had been recently placed on the witness list. Because the State did not call its expert witness, we agree with Judge Marshall that this claim is without merit. Additionally, defendant called Detective Calderon to proffer testimony similar to one of the proposed defense experts concerning how young children can be easily influenced.
We thus affirm substantially for the reasons expressed in Judge Marshall's thorough written opinion of June 13, 2013, which addressed the issues we have discussed above as well as the remaining issues raised by defendant in his PCR petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION