Opinion
DOCKET NO. A-1156-13T3
12-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GIBRIL BANGURA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-04-0531. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On appeal from the May 17, 2013 order denying his petition for post-conviction relief (PCR), defendant's attorney raises the following issues:
POINT I: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN PROCEEDINGS BEFORE THE TRIAL COURT (U.S. CONST., Amend. VI, XIV; N.J. CONST. (1947), Art. I, par. 10).
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO PRIOR BAD ACTS EVIDENCE AND INADMISSIBLE HEARSAY.
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE A TIMELY MOTION FOR SEVERANCE OF THE COUNTS INVOLVING S.C. AND J.K. (NOT RAISED BELOW).
C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CROSS EXAMINE J.K. REGARDING SIGNIFICANT DISPARITIES BETWEEN HIS VIDEOTAPED STATEMENT AND HIS TRIAL TESTIMONY.
D. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE AN EFFECTIVE CLOSING STATEMENT AS SHE NEGLECTED TO PROVIDE ANY GUIDANCE TO THE JURY AS TO INCONSISTENCIES IN THE TESTIMONY OF J.K.
POINT II: THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BASED ON COUNSEL'S FAILURE TO RAISE THE ISSUE OF ACCESS TO THE DYFS FILES.
POINT III: THE PCR COURT SHOULD HAVE HELD THAT THE CUMULATIVE EFFECT OF TRIAL AND APPELLATE COUNSELS' ERRORS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
POINT IV: DEFENDANT'S PETITION FOR PCR SHOULD HAVE BEEN GRANTED BASED ON THE ADDITIONAL ARGUMENTS SET FORTH IN DEFENDANT'S PRO SE BRIEF.
Defendant raises the following additional issues in his pro se supplemental brief:
(1) TRIAL COUNSEL ERRED IN FAILING TO SEEK AN EVIDENTIARY HEARING, CONSTITUTING INEFFECTIVE ASSISTANCE OF COUNSEL.After reviewing the record in light of the contentions advanced on appeal, we affirm.
(2) DEFENDANT'S STATEMENT TO THE POLICE WAS NOT MADE AFTER A KNOWING AND VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT BECAUSE HE SUFFERED FROM A MENTAL DISEASE AND WAS MISLED BY THE INVESTIGATING OFFICER'S PROMISE TO OBTAIN HELP IN EXCHANGE FOR HIS STATEMENT.
(3) DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM BASED ON THE COURT'S DENIAL OF ACCESS TO THE DYFS RECORDS.
(4) THE TRIAL COURT ERRED IN NOT SEVERING THE INDICTMENT INTO TWO SEPARATE TRIALS.
(5) DEFENDANT WAS NOT PROPERLY ADVISED OF HIS MIRANDA RIGHTS BEFORE GIVING ANY STATEMENT TO POLICE.
(6) THE STATE FAILED TO PROVIDE DEFENDANT ADEQUATE NOTICE OF THE CHARGES AGAINST HIM VIOLATING HIS RIGHT TO PREPARE AN ADEQUATE DEFENSE.
(7) WITNESS J.K.'S HEARSAY STATEMENTS SHOULD HAVE BEEN EXCLUDED.
(8) THE VERDICT ON COUNT V MUST BE REVERSED BECAUSE IT VIOLATES STATE V. GREY, 14 7 N.J. 4 (1999).
(9) REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS 1 THROUGH 9.
I
On direct appeal we summarized the facts as follows:
The record discloses that defendant was the neighbor of S.C., age thirteen, and her brother, J.K., age nine. Defendant was twenty-five years of age at the time of the incidents, which occurred in February 2006. Shortly after S.C. and J.K. moved to Plainsboro with their mother, they came in contact with defendant, and soon became friendly with him. During the month of February 2006, defendant fondled S.C.'s breasts and vagina and attempted to penetrate her and, while the girl was at defendant's apartment, he displayed in plain sight the pornographic covers of DVDs and videos and a full-sized, blow-up sex doll named Evelyn. J.K. likewise saw the pornographic DVD and video covers and doll. Additionally, defendant told J.K. in explicit language how to use the sex doll, he demonstrated that use to the boy, he explained sexual reproduction, and he permitted the child to see defendant committing oral sex on the doll.
When, as the result of J.K.'s withdrawal, bedwetting and other disturbing behaviors, as well as his tears when asked about defendant's actions, the children's mother began to suspect that something was amiss, she contacted the police. J.K. was interviewed and, eventually, told Investigator Paul Miller what had occurred. S.C. did not disclose sexual abuse at the time but did confirm the presence of the sex doll in defendant's apartment.
As the result of J.K.'s statement, defendant was arrested, a consent search of his
apartment was conducted, and the pornographic films in their cases and sex doll were found. Following Miranda warnings and interrogation by Investigator Miller, defendant confessed to a sexual encounter with S.C. He denied any sexual conduct in connection with J.K. and the blow-up doll.
In a re-interview after defendant's confession, S.C. acknowledged the sexual assault.
At trial, defendant took the stand in his own defense. He stated initially that S.C. and J.K. had each visited the apartment he was sharing with a roommate on three occasions but then testified that they visited every other day. He contended no pornography was ever displayed before them, and no blow-up doll was present. Indeed, according to defendant, he had never seen a blow-up sex doll in his life — although at one point he mentioned the doll by name — and he did not know that his roommate possessed pornography. Defendant testified that S.C., not he, initiated sexual activity between the two of them, but that he resisted because of her age. He denied ever touching S.C. in a private area. Throughout defendant's testimony, he maintained that he could not be guilty of a crime because a DNA test conducted on semen found on the blow-up doll matched that of his roommate, not him.
[State v. Bangura, No. A-1458-08 (App. Div. Dec. 28, 2010) (slip op. at 3-5) (footnote omitted).]
On direct appeal defendant raised the following issues:
POINT I: DEFENDANT'S STATEMENT TO THE POLICE WAS NOT A KNOWING VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT AS PROVIDED FOR IN MIRANDA v. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
POINT II: [J.K.'s] HEARSAY STATEMENTS SHOULD HAVE BEEN EXCLUDED.
POINT III: THE TRIAL COURT ERRED IN NOT SEVERING THE INDICTMENT INTO TWO SEPARATE TRIALS.
POINT IV: THE VERDICT ON COUNT FIVE MUST BE REVERSED BECAUSE IT VIOLATED THE DICTATES OF STATE v. GREY, 147 N.J. 4, (1996).
POINT V: DEFENDANT'S SENTENCES WERE EXCESSIVE.
1. The sentence on Indictment No. 06-04-00531-I was excessive.
2. The sentence on the violation of probation on A-539-12-03 was excessive.
3. The restitution order violated N.J.S.A. 2c:44-2(b).
II
We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel. See R. 3:22-2(a). To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-part Strickland test, which requires that: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) the deficient performance truly "prejudiced the defense." See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 457 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52, 58 (1987) (adopting the Strickland two-part test in New Jersey). Prior adjudication on the merits of any issue, particularly on appeal, bars PCR. R. 3:22-5.
There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
A PCR judge should only grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of postconviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, "defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." Id. at 463. A defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "He must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.
III
Defendant claims that his attorney was ineffective at trial. He criticizes trial counsel's failure to object to the testimony of the children's mother, L.C., arguing the testimony offered inadmissible hearsay and prior bad act evidence. During L.C.'s direct examination, L.C. explained that S.C. told L.C. that defendant "had hit [J.K.] with a snowball." L.C. also stated,
[S.C.] said [defendant]'s a stalker. . . . She said [defendant]'s at the bus stop every day. Every day that we go to school he's at the bus stop. When we come home, he's at the bus stop.
Defendant asserts that his lawyer also "failed to cross-examine S.C. effectively regarding the inconsistencies in her accounts." Defendant points out four inconsistencies between S.C.'s testimony and her statements to the police. One inconsistency concerns the date that the child said she met defendant. The second inconsistency involves the date of their first sexual encounter. S.C. testified that her sexual encounter with defendant occurred "a couple of weeks" after their meeting. However, S.C., in a police statement, stated that their first sexual encounter was only a week after their first meeting. Third, S.C. testified that she waited "in the living room" for defendant. However, S.C. told the police that she was waiting in her bedroom. Lastly, defendant points out that while the police report indicates that S.C. said that defendant "had a condom," S.C. left that fact out of her testimony at trial.
Defendant also criticizes his lawyer's failure to effectively cross-examine J.K. During J.K.'s cross-examination defense counsel asked only a few questions, such as whether: 1) J.K. "saw some stain on the doll"; 2) J.K. only went to defendant's residence three times; 3) J.K. was throwing the doll around; and 4) defendant "took the doll away from" him. Lastly, defendant complains that his lawyer's summation was not effective.
These complaints about defense counsel's trial methods involve trial strategy, and in no way overcome the presumption of the exercise of sound professional judgment. See Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The fact that defendant was not acquitted of all charges does not prove that his trial attorney was ineffective.
IV
Defendant claims that his trial counsel was ineffective in failing to move earlier to sever the counts relating to the two children. Rule 3:15-2(b) provides that the trial court may sever counts into separate trials "or direct other appropriate relief" if the court finds that the defendant would be prejudiced by a "joinder of offenses." R. 3:15-2(b). "The decision on a motion for a severance pursuant to R. 3:15-2 is addressed to the sound discretion of the trial court." State v. Johnson, 274 N.J. Super. 137, 149 (App. Div.) (citing State v. Laws, 50 N.J. 159, 175 (1967), cert. denied, Laws v. New Jersey, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968)), certif. denied, 138 N.J. 265 (1994). "When the crimes charged arise from the same series of acts, and when much of the same evidence is needed to prosecute each defendant, a joint trial is preferable." State v. Brown, 118 N.J. 595, 605 (1990).
We held on direct appeal that "the [trial] judge did not abuse her discretion in denying defendant's motion." Bangura, supra, (slip op. at 18-19). We stated:
Defendant's counsel did not bring the motion until the jury had been sworn and after it had been told that two victims were involved in the prosecution. Indeed, defense counsel conceded that the motion should have been brought "like two years ago." Further, defendant's conduct with the two children was intertwined and his acts with respect to each provided evidence of a common scheme or plan. Severance would have required considerable duplication of evidence.
[Ibid. (internal citations omitted).]
Thus, although the severance motion should have been raised earlier, the result would not have been any different had the application been more prompt.
V
Defendant also claims that his appellate counsel was ineffective in not raising on appeal the trial judge's decision to preclude the defense from obtaining a copy of Division of Youth and Family Services (DYFS) files relating to the two victims. An appellate court applies "to claims of ineffective assistance of appellate counsel the standard for assessing ineffective assistance of trial counsel claims established in Strickland and adopted by the New Jersey Supreme Court in State v. Fritz." State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008). Appellate counsel, "as a matter of professional judgment," may choose not to present non-frivolous issues. Jones v. Barnes, 463 U.S. 745, 750-52, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.").
The trial judge reviewed the DYFS files in camera and determined "that there was nothing contained in any of [the] records" that was necessary "for a determination of any issue before the [jury]." Defendant has presented no foundation for his argument that this decision was faulty or that his argument would have prevailed had it been raised on direct appeal. When denying access to the DYFS files, the trial court stated that "approximately . . . 90 percent of [the DYFS] documents, if not more, related to the other uninvolved sibling." The information that did relate to the victims also appeared elsewhere, and was either discoverable, or had been ruled not discoverable, for reasons unrelated to the DYFS files. Defendant has demonstrated no legal error in any of trial or appellate counsel's complained-of actions and he is therefore unable to prove cumulative error. See Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52 (2009) (holding "that the cumulative effect of small errors may be so great as to work prejudice").
VI
In his pro se supplemental brief, defendant raised an issue in point one that was raised by his PCR appellate counsel. He also raised five issues that had already been raised on direct appeal: points two, four, five, seven, and eight. The remaining issues in defendant's supplemental brief, points three, six, and nine, have insufficient merit to require discussion in a written opinion. See 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