Opinion
DOCKET NO. A-1168-12T2
08-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. W.H., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0249. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant W.H. appeals from the June 13, 2012 denial of his petition for post-conviction relief (PCR) and request for evidentiary hearing. Defendant was convicted of 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(a). His victim was eight years old. He was sentenced to eight years in prison subject to the 85% parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court enjoined defendant from future contact with the victim and ordered him subject to the provisions of Megan's Law and community supervision for life. Further, a three-year term of parole supervision upon release was imposed.
We affirmed defendant's conviction and sentence in an unpublished opinion, and the Court denied certification. State v. W.H., No. A-4158-07 (App. Div. May 17, 2010) (slip op. at 15, 22), certif. denied, 203 N.J. 606 (2010).
Defendant filed a pro se PCR petition alleging trial counsel was ineffective because he "did no pre-trial investigation." Upon appointment of PCR counsel, an amended petition was filed in which defendant asserted:
Trial counsel gave me misinformation and ill-advise [sic]. Counsel failed to file necessary motions, failed to argue all appropriate things at sentence, failed to consider all defenses and failed to investigate defenses that existed in the case. Counsel failed to educated [sic] himself and utilize an investigator on my behalf.
In support of these claims, defendant certified his decision to testify at trial was based on counsel's advice that he would be permitted to explain the facts and circumstances resulting in his prior conviction for conspiracy to commit assault; that he "would be able to tell the jury what happened in that case." However, during trial when defendant attempted to elaborate on what happened in that matter, the State's objection was sustained. See Biunno, New Jersey Rules of Evidence, comment 3 on N.J.R.E 609 (2014) ("The trial judge has some discretion to prevent delving into the subject matter of the conviction beyond the limit necessary to establish that the conviction in fact occurred."). Accordingly, information that defendant was convicted of conspiracy to commit assault was disclosed, but he was not permitted to relate the details of that crime. Therefore, he believed PCR was warranted because the jury was left to speculate on "the type of conviction."
Defendant also certified counsel should have sought a Michaels hearing to examine whether the victim was subjected to suggestive interrogation techniques. Further, he maintained appellate counsel failed to include in the direct appeal his challenge the adverse ruling on his motion to admit evidence of the child's prior sexual acts with another child and her purported observance of sexual relations between her mother and step-father.
See State v. Michaels, 136 N.J. 299 (1994) (providing guidelines for pretrial hearing to determine reliability of a child's testimony or whether interview techniques irremediably distorted a child's recollection).
Judge Thomas F. Scully considered the PCR petition. Following oral argument in a written opinion, he denied the request for an evidentiary hearing and concluded PCR relief was not warranted.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.Following our consideration of these arguments in light of the record and applicable law, we affirm.
A. TRIAL COUNSEL MISADVISED DEFENDANT THAT HE COULD TESTIFY AS TO "THE FACTS AND CIRCUMSTANCES" REGARDING HIS PRIOR CONVICTION FOR CONSPIRACY TO COMMIT ASSAULT.
B. TRIAL COUNSEL ELICITED DEFENDANT'S PRIOR CONVICTION ON DIRECT EXAMINATION AND FAILED TO REQUEST ITS SANITIZATION; APPELLATE AND PCR COUNSEL FAILED TO PURSUE THIS ISSUE. (NOT RAISED BELOW)
C. TRIAL COUNSEL FAILED TO REQUEST A MICHAELS HEARING; APPELLATE COUNSEL FAILED TO PURSUE THIS ISSUE. (NOT RAISED BELOW)
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof)[.]New Jersey has adopted Strickland's two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013).]
Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation 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. This requires a showing that counsel was so deficient that "counsel was not functioning as the counsel guaranteed by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (internal quotation marks and citation omitted), cert. denied, ___ U.S. ___ 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires [a] defendant identify specific acts or omissions that are outside the wide range of reasonable professional assistance." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" the defendant established a prima facie case of ineffective assistance of counsel. State v . Mitchell, 126 N . J . 565, 579 (1992). "[B]ald assertions," unaccompanied by evidential support, are insufficient. State v . Cummings, 321 N . J . Super . 154, 170 (App. Div.), certif . denied, 162 N . J . 199 (1999) .
To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
Merely raising a claim for PCR does not entitle a defendant to an evidentiary hearing, as permitted by Rule 3:22-10(b). An evidentiary hearing should be held only when a PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 ( 1999). A court has no obligation to grant a request for a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Defendant maintains Judge Scully "egregiously ignored the detrimental impact of defendant's testimony[,]" and instead erroneously found he failed to show a reasonable probability that counsel's errors undermined confidence in the ultimate outcome. Strickland, supra, 466 U . S . at 694, 104 S . Ct . at 2068, 80 L . Ed . 2d at 698. We disagree.
At trial the State presented testimony of the then twelve-year-old victim and her mother. The victim described the incidents of sexual touching by defendant, including placing his penis on "[her] private area," which referred to her vagina, "her butt" and touching her genitals. Her mother described how the child began spending time with defendant in 2003. She explained she perceived a change in the child's behavior beginning in the summer of 2003, and related the child's disclosure of the assault in October 2003. Finally, the State introduced the videotaped investigative interview of the child conducted by the prosecutor's office.
The defense called witnesses whose testimony cast doubt on the victim's credibility. In taking the stand in his own behalf, defendant denied the touching occurred and also suggested the child fabricated her allegations. On direct, defendant was asked about his prior criminal conviction, which reflected a strategy designed to neutralize any attempt by the State to use the evidence for impeachment. See State v. Harris, 209 N.J. 431, 442 (2012) (discussing use of prior convictions for purposes of impeachment).
As Judge Scully noted, if defendant had not testified, the outcome of the proceeding would not have been altered because "the State's presentation of guilt would have been unrebutted." We reject as meritless defendant's suggestion this analysis implied defendant was required to testify or present evidence to defeat the State's case. R. 2:11-3(e)(2). Rather, the judge's comment merely addressed the strength of the State's evidence and reflected the reasonable conclusion that the jury would reasonably have convicted defendant on this evidence assuming both his denial of guilt and his admission of his prior convictions was excluded. See United States v. Logan, 861 F.2d 859, 865 (5th Cir. 1988). Defendant's strategic choice was to deliver his exculpatory evidence by taking the stand, fully aware that by doing so his prior conviction would be disclosed on cross-examination. Assuming arguendo this claim falls outside of trial strategy and represents deficient performance, we agree with Judge Scully's analysis that the outcome would have been unaltered.
Also, Judge Scully rejected defendant's contention that jury speculation regarding his prior conviction occurred. He emphasized the testimony disclosed a conviction for conspiracy to commit "assault. Not sexual assault. Assault." Importantly, the PCR judge also found "[t]he trial court properly instructed the jury as to the limited purpose for which they could consider this defendant's prior conviction," and "[t]his limited instruction . . . eliminated any possibility that the jury would use the evidence in an improper manner." See N.J.R.E. 609 (discussing the limited effect given to the prior conviction); see also State v. Wray, 336 N.J. Super. 205, 212 (App. Div.), certif. denied, 168 N.J. 290 (2001).
We concur with this analysis. The trial court properly provided a detailed limiting instruction to the jury on the use of the prior conviction evidence. We assume the jury followed the court's instruction. State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions.").
We reject as meritless defendant's contention of a Brunson violation. See State v. Brunson, 132 N.J. 377, 391 (1993) (requiring a defendant's past conviction used for impeachment, if similar to the crime for which he or she is on trial, be sanitized such that it is "limited to the degree of the crime and the date of the offense[,] but exclude[es] any evidence of the specific crime of which defendant was convicted").
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Defendant next challenges the rejection of his claim that trial counsel should have requested a Michaels hearing, arguing any notion that the child's mother "did not engage her daughter in suggestive questioning defies credulity." The assertion is unaccompanied by factual support.
In Michaels, the Supreme Court cautioned that investigatory interviews of a child "are fraught with the elements of untoward suggestiveness and the danger of unreliable evidentiary results." Michaels, supra, 136 N.J. at 320. To ensure a defendant's right to a fair trial, when issues of taint arise, a pretrial hearing is recommended to consider "whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they [gave] rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." Ibid.
Here, there was no evidence in the record to suggest that the victim was repeatedly questioned by her mother prior to the interview conducted by the prosecutor's office. No facts suggest the victim recounted the events multiple times. Rather, as Judge Scully found, "there is no evidence that any statement was given by either the victim or her mother at the Howell Township Police Station." Further, "it was solely her mother . . . who provided a statement to Asbury Park [police]. In fact, the victim was asleep at the time that the statement occurred." The forensic interview was videotaped and found by the trial judge "to be trustworthy and reliable." Moreover, Judge Scully found it devoid of efforts to mold the victim's recollection of events, or "any of the suggestive or coercive techniques delineated by the Michaels Court."
We defer to these factual findings, which are supported by sufficient credible evidence in the record. Nash, supra, 212 N.J. at 540. Moreover, defendant offers no evidence to refute these findings. His claims on appeal are bald assertions insufficient to support PCR relief.
We conclude from our review of the record that defendant failed to present a prima facie case of ineffective assistance that prejudiced the outcome of this case. Accordingly, Judge Scully properly denied PCR and found no need for an evidentiary hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION