STATE OF NEW JERSEY v. NELSON FLORES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0025-04T40025-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON FLORES,

Defendant-Appellant.

__________________________________

 

Submitted January 11, 2006 - Decided February 9, 2006

Before Judges Stern and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-09-0497.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of a timely filed application for post-conviction relief (PCR) following conviction on May 1, 1997, of aggravated sexual assault, N.J.S.A. 2C:14-2(a), a crime of the first degree; endangering the welfare of a child under defendant's care, N.J.S.A. 2C:24-4(a), a crime of the second degree; and sexual assault of a child under 13 by an actor at least four years older, N.J.S.A. 2C:14-2(b), a crime of the second degree. Defendant was sentenced on October 3, 1997, to 15 years on the aggravated sexual assault charge, the presumptive term. He was sentenced to current presumptive seven year terms on the other convictions. Defendant raises the following issues on appeal:

I. THE COURT COMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.

A. Trial counsel was ineffective for not seeking to strike the testimony of the victim after the victim refused to retake the stand after her direct testimony.

B. Trial counsel was ineffective for not investigating witnesses on behalf of the Appellant.

C. Trial counsel was ineffective for not requesting a hearing to determine if the victim was competent to testify.

D. The trial counsel was ineffective for not objecting to the rebuttal testimony by Officer Marino.

E. Trial counsel was ineffective not requesting a Rule 104 hearing prior to Dr. Finkel testifying.

II. THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S MOTION OR IN THE ALTERNATIVE GRANTING THE APPELLANT AN EVIDENTIARY HEARING DUE TO THE CUMULATIVE EFFECT OF THE TRIAL COUNSEL'S NUMEROUS ACTS OF INEFFECTIVE ASSISTANCE.

Defendant's application is governed by R. 3:22. The appeal from the underlying conviction was resolved on July 13, 1999, a predicate for PCR under R. 3:22-3. In order to secure relief, defendant must prove that there was a "substantial denial" of his right to effective assistance of counsel at trial. R. 3:22-2(a). The PCR judge is constrained by R. 3:22-4 to deny relief in certain circumstances:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

The Rule also bars relief where there has been a prior adjudication:

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceeding.

[R. 3:22-5.]

Here, defendant raised ineffective assistance of counsel on direct appeal. However, we did not address that issue and stated that its determination was without prejudice to an application for post-conviction relief. However, some of the issues that were determined impact on the PCR petition.

With respect to a PCR hearing, a petitioner must establish the right to post-conviction relief by a preponderance of the credible evidence. The Rule provides that "[a] defendant in custody may be present in court in the court's discretion and shall be entitled to be present when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge." R. 3:22-10. In addition, when a prima facie case of ineffective assistance of counsel is made, the court must conduct an evidentiary hearing. State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). Otherwise, a hearing is not required. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

In order to establish a prima facie case for ineffective assistance of counsel, the defendant must demonstrate a

reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted in New Jersey by State v. Fritz, 105 N.J. 42, 60-61 (1987). This test establishes a two-pronged analysis. First, the defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, the defendant must show that he was prejudiced by counsel's deficient performance. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Ineffective assistance of counsel may be established by one specific incident or by the cumulative effect of several errors. Preciose, 129 N.J. at 462.

With regard to the first prong, the defendant must establish that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Fritz, 105 N.J. at 52. The trial attorney's representation is weighed against a "reasonably effective assistance" test in light of the case's particular circumstances. Strickland, 466 U.S. at 687, 690, 104 S. Ct. at 2064, 2066, 80 L. Ed. 2d at 693, 695. There must be an objective determination of whether "counsel's acts or omissions fell outside the range of professionally competent assistance"

within the context of the case at issue. Ibid. The second prong requires that the defendant establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Counsel's deficient performance must be so serious as to undermine the court's confidence in the jury's verdict or the result reached. Ibid. A reviewing court begins with the assumption that counsel "rendered adequate assistance." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Judicial scrutiny of counsel's performance on a claim of ineffective assistance of counsel is to be highly deferential; the court should not second-guess defense counsel's tactical decisions and should not assess the decisions under the distorting effects of hindsight. State v. Marshall, 148 N.J. 98 (1997), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694.

I.

Defendant contends that his trial counsel was ineffective for not seeking to strike the testimony of the victim after the victim refused to retake the stand following her direct testimony. On direct appeal from his conviction, defendant did not raise an issue as to the failure to cross-examine the victim except to the extent it may have been subsumed in his ineffective assistance of counsel argument. However, it was discussed before the sentencing judge and by us on appeal.

During defendant's sentencing, he asked his counsel to advise the court as follows:

Mr. Flores has asked me to state to the Court that at the time of trial when the alleged victim was testifying and the decision was made not to cross-examine her that decision was based on Mr. Flores' desire. We had an opportunity to discuss that matter and it was his desire that we not cross-examine the alleged victim in the matter.

The absence of cross-examination of the victim arose again during oral argument on appeal when we expressed that we were "most concerned as to whether defendant did, in fact, waive cross-examination of the victim." As a result, we asked counsel to confer with respect to an "indiscernible" portion of a sidebar. Then in our decision we stated that

defense counsel candidly acknowledged that defendant waived cross-examination of the victim, probably because she said little inculpatory and in any event far less than she stated on the videotape. In summation defendant characterized M.R.'s testimony as indicating she was not even touched. Clearly, M.R.'s trial testimony could be used to challenge the contents of her extra-judicial statements which were admitted under N.J.R.E. 803(c)(27) and on which the State relied.

The PCR judge found that the defendant had failed to make out a prima facie case of ineffective assistance of counsel with respect to seeking to strike the victim's testimony. Specifically, the judge found the claim lacked merit because the child's direct testimony was minimally inculpatory and reluctantly given. She also found that it was reasonably effective assistance of counsel to forego the risks of cross-examination and assumed that counsel thought, no doubt, that it was better to secure an acquittal than a mistrial and retrial. A mistrial obviously ran the risk that the child's testimony would be more strongly inculpatory whereas the testimony as given might result in acquittal.

Defendant himself having voluntarily waived cross-examination, he and his counsel were no longer in a position to move to strike the child's incomplete testimony. Even if that were not the case, had the child not refused to return to the stand, a reasonably effective counsel still might not have cross-examined a seven-year-old witness as a matter of strategy to avoid the risk of antagonizing the jury. Furthermore, when the testimony was only minimally inculpatory, cross-examination might have strengthened the State's case by eliciting more strongly inculpatory testimony. This was a witness that a reasonably effective attorney might not touch on cross-examination. Even if counsel had moved to strike the child's testimony, the State still had "fresh complaint" and "tender years" evidence which was sufficient to convict. Thus, defendant did not make out a prima facie case of ineffective assistance of counsel because he has not shown that counsel's performance was deficient nor has he shown that he was prejudiced by counsel's performance.

II.

Defendant's next claim of ineffective assistance of counsel is based upon counsel's failure to investigate witnesses. In order to determine whether a prima facie case has been demonstrated, the trial court applies the summary judgment model, viewing the facts in the light most favorable to the defendant. Cummings, 321 N.J. Super. at 170.

Nevertheless, in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Ibid. (emphasis added).]

In this regard, the PCR judge specifically noted that the "facts" to which witnesses would have testified were set forth in an affidavit from the first attorney assigned by the Public Defender to represent the defendant on the PCR application. Of course, such an affidavit does not comply with the requirements of R. 1:6-6. The attorney's sworn statements were inadmissible hearsay.

The PCR judge rejected all of the claims respecting inadequate investigation on the ground that they were bald assertions. She also noted that some of the purported testimony may not even have been admissible, some of the evidence would have benefited the State in the presentation of its case, some of the testimony would have bolstered the credibility of the mother and the victim, and all of the alleged (but not proven) testimony would most likely not have affected the outcome of the trial. The PCR judge correctly concluded that defendant did not make out a prima facie case of ineffective assistance of counsel with respect to investigation of the case as no admissible evidence of the fruits of such an investigation was presented.

III.

The PCR judge in addressing the necessity of a hearing to determine whether the victim was competent to testify noted that such a determination lies within the discretion of the trial court and that all persons, including children, are presumed competent to testify. She also found that counsel's decision not to request a competency hearing made sense because competency is not difficult to establish. The witness need only appreciate the conceptual difference between truth and untruth and the duty to tell the truth on the stand. Caselaw has found that a child as young as three was competent to testify. State v. R.W., 104 N.J. 14, 21 (1986). The PCR judge also pointed out that defendant offered no reason why the victim's competency should have been an issue other than her age. Counsel had seen her videotaped interview and thus had an impression of her competency before trial and defendant also was well acquainted with the child. Thus, he should have been able to offer a reason why her competency was an issue but did not. He still has not.

We addressed this issue on direct appeal and found that the failure of the trial judge to conduct a competency hearing was not plain error. The failure of counsel to request such a hearing did not deprive defendant of effective assistance of counsel. The victim's taped responses reflect sufficient competency to testify and defendant has proffered no evidence that she was not.

IV.

Defendant contends that he did not receive effective assistance of counsel when his attorney failed to object to Officer Marino on rebuttal being permitted to read a statement he took from the victim's mother. On direct appeal we found that there was no "plain error" in the court permitting that rebuttal testimony, which was offered "'to rebut the inference by the defense that [the mother] [wa]s not credible.'"

This issue was not addressed by the PCR judge, although it was raised in the supplemental brief of defendant pro se. Defendant's concern then about the failure to object to this rebuttal testimony was that the statement was not admissible as a fresh complaint because it was not made immediately after the assault. In addition, he contended that it did not qualify as a prior consistent statement as the trial court found. On appeal, he argues that rebuttal testimony is not permitted to rehabilitate the credibility of a witness but only to contradict a factual issue introduced in the defense case during the direct or cross-examination only, citing State v. Cook, 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000).

In a criminal prosecution the preferable course to be followed is for the State to present everything relevant as part of its case in chief. Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses. Where the evidence would have been admissible in the State's case in chief the trial judge is vested with broad discretion that will not be disturbed absent a gross abuse.

[Id., 330 N.J. Super. 418-19 (Citations omitted).]

Accordingly, Officer Marino's testimony was proper rebuttal. The defense raised a collateral attack on the credibility of the victim's mother through the testimony of defendant's mother and it was properly rebutted. Counsel was not ineffective in failing to press an objection after the court ruled that the evidence could come in as a prior consistent statement. N.J.R.E. 607 clearly permits this type of evidence.

V.

Defendant next contends that none of the testimony given by Dr. Finkel with respect to the statements made to him by the victim was admissible because it was all hearsay. He contends that his counsel was not reasonably effective because she failed to object to this hearsay evidence and to demand a N.J.R.E. 104 hearing with respect to Dr. Finkel's proposed testimony. Defendant also argues that the evidence was very prejudicial to him.

The issue of Dr. Finkel's testimony was addressed on direct appeal. We found no abuse of discretion on the part of the court in admitting his testimony, including the victim's statements to him, under N.J.R.E. 803(c)(4). "The statements embodied another description of the defendant's conduct, albeit without reference to defendant and given to another person who recounted what M.R. said (without interpretation by Diaz)."

Because we have held that the victim's statements to Dr. Finkel were properly admitted, counsel cannot be faulted for a failure to object on the ground that it was inadmissible hearsay. Defendant has failed to satisfy the first and second prongs of Strickland with respect to this claim.

VI.

Defendant has raised a variety of other issues with respect to effective assistance of counsel. He complains that the prosecutor's husband should not have been allowed to take the stand on rebuttal, that the judge should not have called the victim "honey," that the victim identified him without objection from his counsel, and that his counsel failed to exercise a peremptory challenge. These issues could have been raised on direct appeal. In any event, none of these issues constitute evidence of ineffective assistance of counsel.

Defendant also contends that the PCR judge erred in not granting the petition or in the alternative granting an evidential hearing due to the cumulative effect of the trial counsel's numerous acts of ineffective assistance. This claim has no merit; all of the claimed ineffective assistance of counsel had no cumulative potential for any significant prejudice to defendant. Our confidence in the verdict has not been undermined by any of defendant's claims.

 
Affirmed.

(continued)

(continued)

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A-0025-04T4

RECORD IMPOUNDED

February 9, 2006