Opinion
DOCKET NO. A-1595-08T4
08-29-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. C. M., Defendant-Appellant.
James N. Butler, Jr., attorney for appellant. Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1434.
James N. Butler, Jr., attorney for appellant.
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the denial, in part, of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury on all six counts of an indictment that charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The victims of the sexual offenses were defendant's daughters, A.M. and T.M. It was alleged that the offenses against A.M. occurred during the period from June 1997 to September 1997 and those against T.M. occurred from October 1998 through October 1999.
After the verdict, defendant filed a motion for a new trial. A certification from his trial counsel was submitted in support of the motion which stated in part:
Counsel has learned subsequent to this verdict that A.M. and possibly, T.M. had undergone psychiatric treatment after the events of November 23, 1999, the day the allegations were made against their father. Counsel had requested on numerous occasions the medical records of these two girls and was supplied with medicals from Community hospital only dealing with the physical examination of the girls. Although it is recognized that records of this nature are not necessarily admissible, counsel for
defendant is certainly entitled to review same or at the very least, these records should have been made available to the Court for it's [sic] own in camera inspection. The State failed to disclose that any such records existed, notwithstanding their knowledge of same. Assuming arguendo and the State maintains that they did not have such knowledge, it is respectfully submitted that it was their duty to discover same and bring it to counsel's attention prior to the start of this trial, indeed, prior to the plea cut-off date.
(Emphasis added.)
The appendix also contains trial counsel's responses to questions posed by subsequent defense counsel regarding defendant's PCR, which included a statement that he "attempted time and time again to obtain the records [from East Mountain Lodge, Carrier Clinic regarding A.M.]. The state claimed that they gave me all that they had."
The court denied defendant's motion and imposed an aggregate sentence of 44 years, plus appropriate fines and penalties, on February 21, 2003.
Defendant appealed and argued that the prosecutor committed misconduct in summation, that his right to remain silent was eroded by cross-examination regarding his failure to reveal exculpatory information prior to trial, that he was entitled to a jury charge on attempt, and that he was denied the effective assistance of counsel. He contended that his counsel was ineffective in failing to: object to the prosecutor's summation, request a charge conference, and file pre-trial motions. We affirmed his convictions and sentence in an unpublished opinion. State v. C.M., Sr., No. A-3362-02 (App. Div. Apr. 5, 2004). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated in detail here.
Defendant petitioned for PCR and was assigned PCR counsel by the Office of the Public Defender. With the assistance of counsel, defendant requested and was granted an order for the production of the his daughters' medical records for in camera review. On December 17, 2007, the court ruled the information was not discoverable because it was not "relevant, material or probative in any way" to defendant's PCR petition. The judge stated even "with the standpoint of a fairly good understanding of what happened at trial, . . . there was nothing contained, even with the view of Monday morning quarterback, . . . where [he] would have granted an application to disclose [the records] to trial counsel at the time [of the trial]." Defendant has not sought any appellate review of that order.
PCR counsel submitted a supplemental memorandum in support of defendant's petition for PCR on or about June 27, 2008. By order dated October 21, 2008, the PCR court denied defendant's petition. However, the court granted defendant's motion to correct an illegal sentence and amended defendant's sentence to an aggregate of 37 years.
In this appeal from the October 21, 2008 order, defendant argues the PCR judge committed reversible error in denying his petition on the grounds of ineffective assistance of his trial and appellate counsel. He contends trial counsel was ineffective because he failed to obtain medical records regarding his daughters, failed to introduce a transcript from the Montel Williams show into evidence, and failed to discover two witnesses who could have provided testimony favorable to the defense. In addition, defendant argues that the PCR judge erred in failing to grant relief based upon the State's alleged failure to provide exculpatory material as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After carefully reviewing the record and briefs, we are satisfied that none of these arguments has merit.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and adopted in State v. Fritz, l05 N.J. 42, 49-58 (l987). Under this test, a reviewing court must determine: (1) whether counsel's performance "fell below an objective standard of reasonableness," making errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; and (2) whether 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. In evaluating a defendant's claim, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of the attorney's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Accord State v. Fisher, 156 N.J. 494, 500 (1998).
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test and therefore, an evidentiary hearing was not warranted. See State v. Marshall III, 148 N.J. 89, l58 (1997); State v. Preciose, 129 N.J. 451, 462-63 (1992).
We first address the argument that trial counsel was ineffective in failing to obtain medical records relating to defendant's daughters. Defendant makes various contentions regarding T.M.'s alleged psychiatric history that are unsupported by the record, are self-contradictory and, in some cases, contradicted by the record. In addition, he argues that trial counsel was ineffective in failing to secure medical records regarding A.M.'s surgery for scoliosis during the time period in which the sexual assaults occurred.
Defendant contends that, on "the eve of trial," "a defense investigator notified trial counsel that T.M. had been committed to East Mountain Lodge," and that he learned on the eve of trial "that T.M. was in a psychiatric facility and taking anti-psychotic medications to prevent hallucinations" but took no action with regard to these developments.
Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." However, defendant has presented no certification or any other documentation to support the assertions that T.M. was "committed" or taking anti-psychotic medications to prevent hallucinations.
The degree to which the lack of supporting evidence renders this argument merely speculative is highlighted by the fact that the record reflects it was A.M., and not T.M., who was at Eastern Mountain Youth Lodge at the time of trial. A.M. testified she resided at East Mountain, "a program for children with drug problems and family problems." East Mountain is located at the Carrier Clinic in Belle Meade. In contrast, T.M. testified that she was living at Collier's Group Home, a group home in Red Bank for "kids who don't live with their families," and had graduated from Red Bank Regional High School. Defendant has offered absolutely no evidence that T.M.'s testimony about being a resident of a group home in Red Bank was untrue, that T.M. was "committed" to East Mountain or that she was taking anti-psychotic medication at the time of trial.
Further, we note trial counsel stated in his certification that he learned "A.M. and possibly, T.M. had undergone psychiatric treatment after the events of November 23, 1999[.]" This reference to a possibility appears to be the only reference in the record to T.M. obtaining psychiatric treatment after November 23, 1999, which leads us to infer that the references to T.M. being "committed" and taking anti-psychotic medication may be erroneous. Even if the argument is made as to A.M., the absence of supporting evidence remains.
Moreover, defendant's claim that his trial counsel did nothing after acquiring knowledge of the "commitment" also rings hollow. Trial counsel's certification in support of the motion for a new trial reflects numerous attempts to secure medical records. Trial counsel's correspondence with PCR counsel reflects no confusion as to which victim was at East Mountain Lodge, since he states he was unaware that A.M. was "committed" to East Mountain Lodge. Although mistakenly referring to T.M. as the East Mountain Lodge resident, defendant appears to agree with this version of the facts in another part of his brief, stating, "[t]he State must have known [that T.M. had been committed] to be true but did not reveal this information to the defense despite the defense requests for this information."
When the question regarding psychiatric records is limited to T.M., the only evidence cited to support an alleged need for further inquiry by trial counsel relates to an incident that occurred earlier in 1999. Defendant brought T.M. to a crisis center after she had a fight with his wife. T.M. had a psychiatric evaluation and, following the hospital's recommendation, defendant had her admitted to Harbor House, which T.M. described as "a place for like runaway teens and like stuff." She remained there for approximately one and one-half weeks.
The other medical records in issue relate to A.M.'s scoliosis surgery. Defendant provided a certification from Karen Rokosny, his wife at the time. She stated that A.M. had surgery for scoliosis in late July 1997 and was in the hospital for a week thereafter. Rokosny certified that evidence of A.M.'s condition would have made her allegations that she had sex ten times from June to September 1, 1997, "highly unlikely if not impossible."
The PCR court rejected both arguments that trial counsel was ineffective in failing to secure the records in issue. Responding to the argument that trial counsel was ineffective in securing records regarding "T.M.'s commitment and use of anti-psychotic drugs," the court observed that another judge had conducted an in camera review of "all medical records involving T.M." in conjunction with the PCR application and held that the records were neither relevant nor discoverable. As a result, the PCR court concluded that defendant cannot show he was prejudiced by any failure of trial counsel to obtain the records.
Regarding records of A.M.'s surgery, the PCR court stated:
The defendant alleges that A.M. underwent surgery in July of 1997. He indicates such surgery would have made such attacks unlikely. On December 17, 2007, Judge Citta ruled that the medical records of both A.M. and T.M. were not relevant and not discoverable. As result, the Petitioner cannot show that he was prejudiced by counsel's failure to introduce evidence of surgery because such records would have been inadmissible.
In any event, assuming the facts regarding the vacation and surgery were established at trial, there was still the opportunity for the defendant to commit the offenses in the time frame alleged. Therefore, the defendant's claims are without merit and unsupported by the record. (9T33-34)
Rokosny also certified that the family, including T.M. and A.M., took a vacation to North Carolina from June 25, 1997, to July 7, 1997, and that counsel did not use this information to impeach A.M.'s testimony as to where she lived from June to September 1997.
We agree with the PCR court that defendant's claims regarding the failure to secure medical records lack merit. In the first instance, it appears that the arguments are properly directed only at psychiatric and medical records of A.M., with no records of any significance relating to T.M. However, it is undisputed that an in camera review was conducted of medical records for both T.M. and A.M. and the court held that all records involving both T.M. and A.M. were irrelevant and non-discoverable. PCR counsel stated he did not appeal from that decision "because it is probably not going any where [sic]." The lack of documentation regarding what trial counsel knew about the medical history of the two victims and the contents of the records precludes defendant from satisfying the first prong of the Strickland/Fritz analysis. Further, as the PCR court noted, defendant cannot satisfy the second prong in light of the finding that the records themselves were not relevant.
We next turn to the argument that trial counsel was ineffective in failing to offer a transcript of a television show into evidence. At trial, defendant's mother testified that T.M. and A.M. watched an episode of the Montel Williams show while visiting her on October 19, 1999. Defendant's mother stated that the show featured a family in which daughters had falsely accused their father of sexual abuse. She testified that she overheard T.M. say to A.M., "this is one way we could get even with dad and Karen." On cross-examination, A.M. denied seeing the show and T.M. did not recall seeing the episode. During summation, defense counsel argued that the Montel Williams show inspired A.M. and T.M. to falsely accuse defendant. The prosecutor questioned whether the show existed.
Defendant contended that effective counsel would have introduced a transcript of the Montel Williams show in question to corroborate that the television show was aired at the time and with the content described by his mother. In rejecting defendant's claim, the PCR court stated, "[t]he issue is not whether the program aired as alleged, but ultimately, whether the victims were falsifying their allegations." The PCR court concluded, "defendant cannot show that there is a reasonable probability that, had trial counsel attempted to introduce the transcript, the jury would have dismissed the victim's testimony as a fabrication."
As noted by the PCR court, the comment attributed to T.M. did not unambiguously reflect that the accusations were false and indeed, could be consistent with their veracity. The possibility that the transcript would have altered the result in this case appears remote since other, far more pertinent, evidence regarding the credibility of the accusations was presented to the jury. By way of example, defendant's mother testified that T.M. told her "she didn't believe [A.M.] was sexually abused. She said [A.M.] made it up because [T.M.] said it." In addition, defendant's son testified that he had a conversation with A.M. in which he asked her what was going on between her and defendant and she replied that the allegations were false. If this testimony did not create a reasonable doubt for the jury, it is highly unlikely that the transcript would have succeeded in doing so.
We are satisfied that the failure to introduce the Montel Williams transcript was a matter that lay within the discretion of the trial attorney that did not fall "below an objective standard of reasonableness," and further, that defendant has failed to show he suffered the requisite prejudice.
The last argument regarding trial counsel pertains to the alleged failure to conduct a proper investigation that would have identified Richard Aponte and Michael Harrigan as additional witnesses. Michael Harrigan submitted a certification in which he stated he had a conversation with A.M. about the charges against her father and asked her if she thought "it went far enough." He stated that she replied it had "gone too far" and walked away "with an attitude."
The first obstacle to this argument is that trial counsel in fact did identify Michael Harrigan on his list of potential witnesses for trial. The record does not inform us as to why he was not called as a witness. However, even if, arguendo, the failure to call him or Aponte as witnesses were deemed to satisfy the first prong of the Strickland/Fritz test, the ambiguous nature of A.M.'s response falls far short of proof her accusation was false. Therefore, defendant cannot show he was prejudiced by the failure to present this testimony.
Defendant next argues that his appellate counsel was ineffective. Specifically, he contends that appellate counsel should have included the fact he had located two new witnesses, Harrigan and Aponte, as additional grounds for defendant's motion for a new trial. However, defendant fails to show how testimony from these witnesses would have constituted "newly discovered evidence" warranting a new trial, see State v. Ways, 180 N.J. 171, 187 (2004); State v. Carter, 85 N.J. 300, 314 (1981); R. 3:20-1, particularly in light of the fact that Harrigan was listed as a witness at the time of defendant's trial. Like the PCR court, we are satisfied that their potential testimony did not constitute such evidence. Therefore, this argument lacks merit.
Finally, defendant argues he is entitled to relief based upon an alleged failure of the State to provide exculpatory evidence as required by Brady. Specifically, he contends "the Prosecutor presented evidence that victim T.M. was in a group home, when she was, in fact, institutionalized in a section of the Carrier Clinic which was deemed an inpatient psychiatric facility." He argues that if trial counsel had such information, "he would have requested any and all records pertaining to T.M.'s psychological/psychiatric status," and the result of the trial would have been affected. For the reasons previously stated, we are satisfied that this contention lacks any merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION