Opinion
DOCKET NO. A-4496-13T4
05-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN W. OATMAN, a/k/a BOBBY OATMAN, a/k/a JOHN OATMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0293. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant John Oatman appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
We previously set forth the facts in this matter in State v. Oatman, No. A-5395-09 (App. Div. Nov. 28, 2011), certif. denied, 210 N.J. 262 (2012), and briefly restate the facts and procedural history that we discern from the record.
Defendant was charged in an indictment with first-degree aggravated sexual assault by committing an act of sexual penetration through the use of physical force, N.J.S.A. 2C:14-2(a)(6) (count one), and first-degree aggravated sexual assault by committing an act of sexual penetration when defendant knew the victim was physically helpless and/or unconscious, N.J.S.A. 2C:14-2(a)(7).
During defendant's jury trial, the evidence established that just prior to 5:00 a.m. on November 4, 2006, defendant made a 911 call to the Roselle Park Police Department (RPPD) and reported there was an unconscious woman in an apartment. RPPD Officer Juan Papica responded to the apartment and met defendant, who led Papica to a bedroom where Papica observed a woman, later identified as M.S., lying on the floor. No one else was present in the apartment. Paramedics arrived on the scene and determined that M.S. was dead.
Defendant told Papica that he arrived at M.S.'s apartment at 8:30 p.m. and that at around 9:30 p.m. M.S. said she was not feeling well. He explained that at around midnight he attempted to carry her from the living room to the bedroom but she was too heavy so he placed her on the floor of the bedroom where she passed out. Defendant told Papica that M.S. was bleeding from her mouth and vagina, and he attempted to revive her with ice and cold water.
RPPD Sergeant Bradley Downing arrived on the scene and spoke with defendant. Defendant said he brought M.S. into the bedroom and placed her on the bed. When Downing asked defendant if he had moved M.S. from the bed to the floor, defendant said M.S. was on the floor because she passed out prior to getting to the bed.
Defendant denied moving M.S. after she passed out, but the officers noticed blood stains on the sheets of the bed, the box spring, and the mattress. In the bathroom the officers observed two bloody towels, blood on the soap and soap dish, and diluted blood on the sink basin, shower curtain, bathtub, and the walls.
Defendant was taken to police headquarters, was informed of his Miranda rights, and provided a statement in response to questioning by the police which was recorded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant admitted to having a sexual relationship with M.S. for the previous five years. He stated that he arrived at M.S.'s apartment at around 8:30 p.m. on November 3, 2006, he and M.S. drank beer, and M.S. used cocaine. Defendant explained that he did not attempt to have sex with M.S. According to defendant, between 11:00 p.m. and 1:00 p.m. M.S. began to feel ill and she vomited. Defendant said that M.S. began to walk toward her bedroom and suddenly passed out.
On November 6, 2006, Morris County Medical Examiner Dr. Carlos Fonseca performed an autopsy that revealed M.S. suffered multiple bruises and swelling to the left side of her head and face, which had been inflicted within six hours of M.S.'s death. Dr. Fonseca testified at trial that the bruises on M.S.'s face were caused by blunt force trauma.
Dr. Fonseca also observed bruises on M.S.'s lower back, right shoulder blade, arms, and hands which he opined were caused by blunt force trauma. He noted that M.S. suffered injuries to the perineum, which extends from the anus to the vagina, fresh tears to the vagina, and a large laceration in the anus. A muscle in M.S.'s anal area had been ripped open, with a tear of about one and three quarters of an inch deep that could cause significant bleeding. M.S.'s anal cavity had been penetrated at a depth of at least six inches, which Dr. Fonseca concluded was inconsistent with digital penetration.
On November 6, 2006, after their receipt of the autopsy results, the police spoke to defendant, who said he tried to have sex with M.S. but could not do so because he was "completely out of it." He admitted attempting to vaginally penetrate M.S. after she passed out because he "wanted to."
Defendant stated he tried to have vaginal intercourse with M.S. for about fifteen minutes but could not get an erection. He admitted inserting his fingers in her vagina and anus and noticing blood on his fingers when he removed them from her anus. He said he then went to the bathroom to wash his hands, but that M.S. continued bleeding.
Defendant said that he tried to revive M.S., that her heart was beating when he attempted to have sex with her, and that he did not have sex with M.S. when she was unconscious. He said that he felt her heartbeat slowing and then he did not feel any pulse. Defendant said he did not request help because he panicked and he thought M.S. would awaken. He acknowledged placing the 911 call at 4:47 a.m.
Prior to defendant's jury trial, the court held a Miranda hearing and determined that defendant's November 3 and 6, 2006 statements to the police were admissible at trial. The court's decision was not challenged on defendant's direct appeal. Oatman, supra, slip op. at 6. Officers testified regarding defendant's statements, and recordings of portions of the statements were played for the jury during the trial.
The jury found defendant guilty on the two counts of first-degree aggravated sexual assault charged in the indictment. The court sentenced defendant to concurrent seventeen-year custodial terms on each count, with the requirement that he serve eighty-five percent of the terms without eligibility for parole and concurrent five-year periods of parole supervision upon release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court ordered defendant to comply with the requirements of Megan's Law, N.J.S.A. 2C:7.1 to -23, and imposed the special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4.
Defendant appealed his conviction and sentence. On appeal, defendant argued:
POINT I:As noted, defendant's arguments were rejected, we affirmed his conviction and sentence, Oatman, supra, slip op. at 12, and his petition for certification was denied, State v. Oatman, 210 N.J. 262 (2012).
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON DEFENDANT'S FIFTH AMENDEMENT PRIVILEGE (NOT RAISED BELOW).
POINT II:
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On September 20, 2012, defendant filed a pro se PCR petition and was assigned counsel. In an amended verified petition and brief, defendant alleged that trial counsel was ineffective because she failed to review the crime scene photographs with defendant prior to trial. Defendant further alleged that counsel's failure resulted in defendant's decision not to testify at trial. Defendant claimed that he would have testified at trial if counsel had reviewed the photographs with him.
Defendant also argued that counsel failed to adequately advise him regarding his right to testify at trial and failed to investigate third-party guilt. Defendant claimed that his right to be present at trial and participate in his defense was violated because he was unable to hear what occurred during three sidebar conferences using the headphones that were provided to him. He also argued that his counsel was ineffective by failing to confer with him regarding what occurred during those sidebar conferences.
On appeal, defendant does not challenge the PCR court's rejection of the claim that his trial counsel was ineffective by failing to investigate third-party guilt. We therefore do not address that portion of the PCR court's decision.
After hearing oral argument, the PCR court found that, prior to defendant's election not to testify, he had observed the crime scene photographs during the course of the trial as they were displayed and admitted into evidence. The judge further detailed his questioning of defendant during the trial regarding defendant's election not to testify and defendant's responses confirming that he conferred with counsel and had made a knowing and voluntary decision not to testify.
The PCR court also found that defendant failed to establish that but for his counsel's alleged errors there is a reasonable probability that the result of the trial would have been different. The court denied defendant's petition without an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following issues:
POINT I:
DEFENDANT PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITION, THEREFORE, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING AND ITS RULING SHOULD BE REVERSED.
A. The Standard of Review is De Novo.
B. Trial Counsel Was Ineffective In Failing To Consult With Defendant Prior To Trial To Prepare His Case.
C. Trial Counsel Was Ineffective In Failing To Advise Defendant Of His Constitutionally Protected Right To Testify.
POINT II:
THE LOWER COURT ERRED IN ITS APPLICATION OF THE R. 3:22-4 PROCEDURAL BAR TO DEFENDANT'S CLAIM THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL BY FAULTY COURTROOM EQUIPMENT, BECAUSE THIS WAS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
II.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be 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. A petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52; Nash, supra, 212 N.J. at 542. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies to mixed questions of fact and law. Harris, supra, 181 N.J. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.
We first address defendant's contention that his counsel did not review crime scene photographs with him prior to trial and, had counsel done so, he would have testified at trial. The PCR court rejected defendant's argument, finding that he failed to establish the second prong of the Strickland standard because he did not demonstrate that but for his counsel's alleged errors there is a reasonable probability that the result of the trial would have been different.
"Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). In our assessment of whether the outcome "would have been different, we are guided, in part, by the standard applicable to claims of newly discovered evidence, that is, 'that the evidence "would probably change the jury's verdict if a new trial were granted."'" State v. Allegro, 193 N.J. 352, 370 (2008) (quoting State v. Ways, 180 N.J. 171, 187 (2004)).
We are convinced the PCR court correctly concluded that defendant did not satisfy the second prong of the Strickland standard. Defendant's contention that he would have testified if he had reviewed the photographs prior to the trial is undermined by the record. The court's finding that the photographs were admitted into evidence, displayed, and observed by defendant during the trial is supported by the record.
The last group of crime scene photographs was admitted in evidence and displayed on January 27, 2009, seven days before defendant advised the court that he elected not to testify. The evidence supports the PCR court's conclusion that defendant was fully aware of the photographs at the time he elected not to testify, and any purported failure of his counsel to confer with him regarding the photographs prior to trial could not have affected his decision not to testify.
Contrary to defendant's assertions, the PCR court was not required to resolve any factual disputes regarding defendant's claim that his counsel failed to review the photographs with him. It was unnecessary for the PCR court to make any findings regarding the first prong of the Strickland standard because defendant failed to demonstrate that if his counsel had reviewed the photographs with him and he chose to testify, his testimony regarding the photographs would have changed the outcome of the trial. As correctly noted by the PCR court, defendant did not provide any details regarding the testimony he would have provided, other than a vague allegation that the crime scene photos were inaccurate. Defendant therefore failed to demonstrate there is a reasonable probability that his testimony would have changed the outcome of the trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We also reject defendant's more general contention that his attorney's purported failure to adequately confer with him regarding his election not to testify constituted ineffective assistance of counsel under the Strickland standard. As found by the PCR court, defendant's assertion is belied by the record. In response to questioning by the trial court, defendant testified that he conferred with counsel regarding his decision not to testify, had enough time to do so, did not need more time to do so, and counsel had answered all of his questions.
Moreover, even assuming that counsel's advice was in some manner deficient under the first prong of the Strickland standard, defendant failed to demonstrate that there is a reasonable probability the result of the trial would have been different if he had testified. Ibid. In his petition, defendant claimed he would have testified that there were inaccuracies in the crime scene photographs and his statements to the police were coerced. His putative testimony consisted of conclusory assertions, unencumbered by any facts. He failed to detail the alleged inaccuracies and the manner in which evidence regarding them would have affected the outcome of the trial. Similarly, he did not provide any facts supporting his conclusory assertion that his statements to the police were coerced. Defendant's putative testimony consisted of bald assertions that did not satisfy his burden under the second prong of the Strickland standard. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), ("[I]n order to establish a prima facie claim" of ineffective assistance of counsel, "a petitioner must do more than make bald assertions . . . . He must allege facts sufficient to demonstrate counsel's alleged substandard performance."), certif. denied, 162 N.J. 199 (1999).
We are also convinced the court properly concluded defendant did not satisfy the second prong of the Strickland standard because the evidence against defendant was overwhelming. It established he was with M.S. during the time she suffered her injuries and he was the only person present when M.S. was found. It included his admissions at the scene, his separate statements which were played for the jury, and testimony regarding M.S.'s injuries which was corroborative of defendant's statements. Based upon the substantial evidence of defendant's guilt presented at trial, the PCR court correctly concluded that there is not a reasonable probability that had defendant provided his putative testimony, the result of the trial would have been different. Id. at 171.
III.
Defendant next argues that the court erred by rejecting his claim that was based on his counsel's alleged failure to inform him about the sidebar conferences he alleges he was unable to hear with the headphones that had been provided. Defendant argued before the PCR court that his alleged inability to hear what occurred during the three conferences deprived him of his right to be present during his trial. See State v. A.R., 213 N.J. 542, 557 (2013) ("The presence of a defendant at trial is a condition of due process to assure a fair and just hearing, which is protected by the Fourteenth Amendment.").
The record reflects there were eleven sidebar conferences that occurred during defendant's trial and defendant never indicated that he could not hear the conferences with the headphones that were supplied.
The PCR court rejected defendant's claim, finding that the issue could have been raised on direct appeal and was barred under Rule 3:22-4. On appeal, defendant does not argue that the PCR court erred in finding that his claim he was deprived of the right to be present at trial was barred under R. 3:22-4. Instead, defendant contends that his counsel was ineffective by failing to advise him about what occurred during the sidebar conferences. He argues that his claim is not barred under Rule 3:22-4 because it is based on facts outside of the record and could not have been raised on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside of the trial record.").
Although not challenged by defendant, we are satisfied the PCR court correctly concluded that any claim defendant was denied his right to be present at trial was barred under Rule 3:22-4 because he failed to establish that the claim "could not reasonably have been raised" on direct appeal, "denial of relief would be contrary to a new rule of constitutional law," or that "enforcement of the bar . . . would result in fundamental unfairness." R. 3:22-4(a); accord Nash, supra, 212 N.J. at 546-47. --------
We agree that defendant's claim that his attorney was ineffective by allegedly failing to inform him about the sidebar conferences was not barred under Rule 3:22-4. Under the Strickland standard, the claim was dependent upon whether counsel actually conferred with defendant regarding the conferences and whether there is a reasonable probability that but for counsel's alleged failure the result of the trial would have been different. The facts supporting the claim existed outside of the trial record and, as a result, the claim "could not reasonably have been raised" on direct appeal. R. 3:22-4(a)(1); accord Preciose, supra, 129 N.J. at 460.
Although the PCR court did not address the merits of defendant's claim, we exercise our original jurisdiction because based upon the record presented it "is purely . . . one of law and no facts bearing on [it] are in dispute" and "resolution of the [claim] would terminate the matter without need for a remand, thus avoiding unnecessary further litigation." Vas v. Roberts, 418 N.J. Super. 509, 523-24 (App. Div. 2011). We reject the claim because even assuming that counsel did not confer with defendant regarding the conferences, defendant failed to demonstrate there is a reasonable probability that had counsel provided the information to him the result of the trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We also reject defendant's claim that the court should have conducted an evidentiary hearing. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702. Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION