STATE OF NEW JERSEY v. R.T.S. SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5666-05T45666-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

R.T.S., SR.,

Defendant-Appellant.

____________________________________

 

Submitted December 12, 2007 - Decided

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-08-0917.

Yvonne Smith Segars, Public Defender, attorney for appellant (Terry S. Bogorad, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant R.T.S., Sr. appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with 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(a). According to the victim, S.H., who is defendant's granddaughter, on Valentine's Day of 1999, while she and her siblings were spending the night at defendant's house, she awakened on the couch in the living room with her pants unbuttoned, zipper down, and belt loose. On February 18, 1999, upon receiving this information, her mother (N.S.) asked S.H. who she thought was responsible, to which S.H. replied, "Pop-pop . . . because before when I was over there when I stayed the night he came into the room to wake [us] up for breakfast and he had touched [me]." When N.S. asked S.H. what she meant "by touch," S.H. told her mother that defendant touched her "stuff[,]" referring to her vagina, with his fingers. Later, in June of 1999, S.H. told her mother that "[she] forgot to tell [her] something else" and revealed to N.S. that after the first incident, she observed defendant go into the closet and start licking his fingers.

Over the objection of defendant, the trial court, in a pretrial in limine ruling, permitted defendant's then thirty-four-year-old niece, D.M., to testify about prior acts of sexual abuse that defendant committed against her. The court ruled that D.M.'s testimony was relevant to prove "defendant's intent, negate any inference of mistake and bias, and prove feasibility." During the trial, the judge later modified his ruling and told the jury that the testimony would be permitted for the limited purpose of establishing the feasibility for S.H. to have been sexually assaulted while other persons were in the same room or house. The judge also gave the jury a limiting instruction on the specific purpose and limitations to be placed on D.M.'s testimony.

D.M. testified that when she was six years old, defendant started touching her inappropriately, the first time being in the bedroom she shared with her brother, and thereafter "whenever he caught [her] by [herself.]" D.M. further testified that beginning when she was eight years old, defendant started having sexual intercourse with her and that he would cover her mouth while other children were sleeping in the same room. D.M. also claimed that she had witnessed defendant sexually abuse his own daughter, who at the time of the trial was deceased.

In another pretrial ruling, the court granted the State's motion to exclude any reference to the conviction of T.J. for endangering the welfare of S.H. The conviction stemmed from events involving T.J. and S.H. that occurred subsequent to the incidents that formed the basis of the charges against defendant. T.J. apparently became the boyfriend of defendant's wife after defendant's arrest. Defense counsel sought to use T.J.'s conviction on the issue of S.H.'s credibility, since S.H.'s allegations against T.J. involved a similar fact pattern, and also to suggest that T.J., rather than defendant, was the perpetrator of the offenses for which defendant was standing trial. During oral argument on the motion, however, defense counsel acknowledged that "based on everything that I see [T.J.] was not in the picture at that point in time." The court granted the State's motion, noting that

it's pretty clear, it's very clear from the statement of . . . the maternal grandmother of the child, [T.J.] was not in the picture at the time that these events are alleged to have happened in the first day of September 1998 to the 19th day of February, 1999. He just wasn't in the picture at all, so it's not relevant . . . .

Following a four-day trial, the jury convicted defendant of all charges. The trial judge denied defendant's motion for judgment of acquittal and imposed an aggregate sixteen-year period of incarceration. Upon release, defendant is subject to community supervision for life under Megan's Law, N.J.S.A. 2C:7-1 to 21. The judge also imposed the requisite monetary assessments. Defendant filed a timely Notice of Appeal. In a per curiam opinion, we affirmed the conviction and sentence imposed. State v. R.T.S., No. A-4187-01T4 (App. Div. Nov. 17, 2003) (slip op. at 12). The Supreme Court denied defendant's petition for certification. State v. R.T.S., 179 N.J. 311 (2004). On March 3, 2005, defendant filed a pro se PCR application that was later amended after the appointment of counsel.

In the brief supporting his PCR petition, defendant argued that both his trial and appellate counsel were ineffective because they

both took an all or nothing approach to the other-crimes evidence issue by seeking only a determination that the other-crimes evidence was inadmissible in its entirety without also arguing in the alternative that if the other-crimes evidence was deemed admissible, that the admitted evidence had to be sanitized and limited to issues on which it was admissible.

Defendant noted that the Appellate Division did not address whether the other-crimes evidence admitted had been properly sanitized because neither trial counsel, the trial judge or appellate counsel raised this issue. Defendant urged that the impact of admitting unsanitized prior bad-acts evidence was that D.M. had "free range to testify in gruesome detail about events that allegedly occurred twenty-five years before." Citing State v. Collier, 316 N.J. Super. 181 (App. Div. 1998), aff'd, 162 N.J. 27 (1999), defendant argued that these details were so prejudicial that they were not susceptible to cure by any limiting instruction, irrespective of the clarity of any such instruction.

Defendant also claimed that he was denied effective assistance of counsel because (1) neither trial counsel nor appellate counsel raised the prejudicial effect of the prosecutor's opening statement; (2) appellate counsel failed to address the trial court's error in admitting hearsay evidence during the testimony of the State's medical expert; (3) trial counsel failed to introduce evidence that S.H. may have been motivated by her parents' prejudice because defendant owned their home, which defendant purchased because his son only worked part-time due to a drug problem; and (4) appellate counsel's failure to argue that the trial court's decision excluding reference to T.J.'s conduct towards S.H. violated defendant's Sixth Amendment right of confrontation. Defendant's final argument in support of PCR was that the cumulative effect of the multiple errors and the ineffective assistance of counsel caused an unfair result.

The PCR judge rejected all of defendant's arguments, finding that the only argument with any potential merit related to the scope of the testimony of the expert witness, Dr. Linda Shaw, whose testimony defendant argued went beyond that which was necessary to address her examination of S.H. The judge concluded, however, that Dr. Shaw's testimony was not so prejudicial as to have deprived defendant of a fair trial or to have changed its outcome because the hearsay testimony merely repeated testimony already given by S.H. and that type of testimony "comes in for treatment purposes." The present appeal ensued.

Defendant raises the following points for our consideration:

POINT I

[THE PCR JUDGE] IMPROPERLY DENIED THE DEFENDANT'S PETITION AND AMENDED PETITION FOR POST CONVICTION RELIEF AS HE FAILED TO SPECIFICALLY ADDRESS ALL THE ISSUES PRESENTED BY THE DEFENDANT.

POINT II

THE PROSECUTING ATTORNEY'S COMMENTS AND OMISSION OF A DISCUSSION OF LEGAL STANDARDS IN THE STATE'S PCR LETTER BRIEF CONSTITUTE PROSECUTORIAL MISCONDUCT AS THOSE ACTS [LED] TO THE IMPROPER REVIEW OF THE DEFENDANT'S PETITION AND AMENDED PETITION FOR POST CONVICTION RELIEF.

POINT III

THIS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST CONVICTION RELIEF PROCEEDING.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and with the exception of Point I, reject all of defendant's arguments as lacking merit.

In Point I, defendant claims the PCR judge failed to address the points he advanced in his original pro se petition for PCR. He notes that his PCR counsel failed to do so as well, evidencing ineffective assistance of PCR counsel. Those points consisted of the following:

My lawyer and Judge let this woman say things which was erroneous, and effectively to a deni[al] to a fair trial.

The Prosecutor call[ed] all my witnesses [and] told them not to come to trial. [E]ven the arresting officer Det. James [was supposed] to be at trial [and] he wasn't there. Plus my attorney wouldn't let me bring up what happen[ed] a year after I was lock[ed] up[,] that she told a[] lie on her grandmother['s] [b]oyfriend[,] Mr. [A.J.]. [H]e told the family of Murdock he's and the Judge going to get me in court. No representation from him [and] I ask the Judge for another lawyer[.] [H]e said Mr. Fetky is a real good lawyer and I better kept him.

We agree that the PCR judge did not address, in detail, every point raised in the original pro se PCR petition. Rather, the judge noted that defendant was advancing numerous issues and specifically addressed the major issues raised in the petition, ultimately concluding that none warranted relief.

Defendant's reliance on State v. Webster, 187 N.J. 254, 257 (2006), and State v. Rue, 175 N.J. 1, 13 (2002), for his contention that PCR counsel was required but failed to raise defendant's pro se arguments is misplaced. These cases stand for the proposition that PCR counsel must advance all legitimate arguments and "include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them." Webster, supra, 187 N.J. at 257. This is precisely what PCR counsel did. In Paragraph 13 of the Amended Verified Petition for Post Conviction Relief, defense counsel incorporated defendant's original pro se petition.

Before turning to the specific claims raised in the original pro se petition, we address our standard of review. In order to prevail on a claim of ineffective assistance of counsel, defendant is required to meet the two-part test of showing both that trial and appellate counsel's performances were seriously deficient and that the defect in their performances prejudiced defendant's right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987).

Under the first prong, when we evaluate the reasonableness of counsel's alleged conduct, we must apply an objective standard. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We judge counsel's conduct on the facts of the particular case, viewed at the time of the challenged conduct. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid. In our analysis, we acknowledge the strong presumption that counsel "made all significant decisions in the exercise of [his or her] reasonable professional judgment." Ibid.

In order to establish the second prong of prejudice, a defendant must do more than show that the error or errors had some conceivable effect on the outcome of the trial. State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, "[t]he error committed must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. When making a determination whether specified errors prejudiced the defendant, we presume that the judge or jury acted according to law. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Against this standard, we address the first issue raised in defendant's original pro se petition. It is unclear to whom the reference "this woman" is directed. The State called four women as witnesses: N.S., the victim's mother; Jacqueline Molnar, an investigator with the Middlesex County Prosecutor's Office at the time the incidents were reported to law enforcement authorities; Dr. Shaw, the psychiatrist; and D.M., defendant's niece. We think it unlikely that the reference to "this woman" refers to N.S., Dr. Shaw or Investigator Molnar. Rather, we are convinced that "this woman" refers to the testimony of D.M., which detailed defendant's alleged sexual misconduct committed against her twenty-five years earlier when D.M. herself was a child. The admissibility of her testimony was addressed on direct appeal, and the issue of appellate counsel's failure to argue that the trial court committed reversible error when it failed to sanitize the N.J.R.E. 404(b) testimony of D.M. consumed a major portion of PCR counsel's brief and argument before the court.

The PCR judge agreed with the State that the offending testimony from D.M. was not over-emphasized and, consequently, appellate counsel's representation did not fall below the broad range of professionally acceptable performance. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697. We agree.

The State asked D.M. approximately forty questions related to her allegations against defendant. Nearly all of the questions focused upon the times and places where D.M. alleged defendant sexually assaulted her or his own daughter. There were, in our view, three questions posed that were unrelated to the limited purpose for which D.M.'s testimony was admitted:

Q Would the defendant ejaculate?

A Yeah.

Q How would you know that?

A Because it got wet and sticky between my legs.

Q Now, were there times when he would make you perform other sexual acts?

A Yeah, he taught me how to, he taught me how to go down on a man and he also taught me how to, you know, masturbate a man. He taught me, he taught me a lot of sexual things how to satisfy a man.

There was no further testimony in this area and the State did not reference this testimony in summation. When balanced against all of the evidence presented in support of the charges against defendant, we do not find trial counsel's failure to object or appellate counsel's failure to address the issue on appeal as "so serious as to undermine our confidence in the jury's verdict." Sheika, supra,, 337 N.J. Super. at 242 (citing Fritz, supra, 105 N.J. at 60).

As to PCR counsel's decision not to argue that the trial judge coerced defendant into accepting trial counsel, the colloquy between the court and defendant, which took place after the court precluded any testimony related to S.H.'s allegations against T.J., likely formed the basis for defendant's pro se argument:

[DEFENSE COUNSEL]: Judge, I had an opportunity to speak to my client in the hallway. Apparently, he still wants to testify. Apparently he does not feel, he doesn't feel I am properly defending him, that I am almost in cahoots, I guess, with the Prosecutor. He told me outside he wanted another lawyer.

THE DEFENDANT: I didn't say that.

THE COURT: What?

THE DEFENDANT: I didn't [tell] him that.

THE COURT: He's your lawyer in this case and we are going on from here.

Since defendant denied making a request for new trial counsel, PCR counsel acted diligently in choosing not to raise the issue because doing so would have been a frivolous effort and doubtless would have had no effect on the result of the PCR proceedings.

In his original pro se petition, defendant also claimed that the prosecutor told his witnesses not to appear and that Detective James, the arresting officer, did not testify. Defendant did not identify any of the witnesses who the prosecutor allegedly called or set forth their proposed testimony. Additionally, four witnesses testified on defendant's behalf: his brother, his cousin, his aunt, and a fellow masonic lodge member. We perceive no basis for PCR counsel to have pursued further argument on this issue or for the PCR judge to have specifically addressed this contention. Webster, supra, 187 N.J. at 257.

The final point raised in defendant's original pro se petition claims that trial counsel would not allow defendant to bring up what happened a year after he was locked up, that "[N.S.] told a lie on her grandmother['s] boyfriend[,] Mr. [A.J.]." There is no other place in the trial record or PCR record referencing an A.J. We assume therefore that the reference to A.J. is intended to refer to T.J., who, according to the record, was the boyfriend of N.S.'s grandmother, defendant's wife. Trial counsel conceded that N.S.'s allegations against T.J. involved conduct that occurred after the alleged incidents involving defendant. Moreover, it is undisputed that T.J. pled guilty to one count of endangering the welfare of a minor. Therefore, trial counsel's failure to pursue the theory that N.S.'s allegations against defendant lacked credibility because she made similar allegations against T.J. or that T.J. was the perpetrator was sound trial strategy, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95, and was also not objectively deficient because the theory was not a legitimate claim. Webster, supra, 187 N.J. at 257.

The remaining arguments advanced in Points II and III of defendant's brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-5666-05T4

RECORD IMPOUNDED

May 12, 2008