STATE OF NEW JERSEY v. BRYAN D. GILREATH

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1992-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN D. GILREATH,

Defendant-Appellant.

________________________________________________________________

December 20, 2010

 

Argued November 16, 2010 - Decided

 

Before Judges Carchman, Graves and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-02-0129.

 

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas, Mary Frances Palisano and Joshua L. Weiner, on the brief).

 

Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Bryan Gilreath was found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); two counts of first-degree kidnapping to facilitate those offenses, N.J.S.A. 2C:13-1b(1)/ 2C:14-2a(1)/2C:24-4, N.J.S.A. 2C:13-1c(2)(a)/2C:14-2a(1)/2C:24-4 (counts four and five); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count six). After appropriate mergers, the judge sentenced defendant to an aggregate prison term of fifty-five years with a twenty-seven and one-half year term of parole ineligibility.

Defendant appealed, and we affirmed. State v. Gilreath, No. A-4118-98T2 (App. Div. June 15, 2000). The Supreme Court denied certification. State v. Gilreath, 165 N.J. 606 (2000).

Defendant subsequently filed a timely petition for post-conviction relief (PCR) in the Law Division asserting that he received ineffective assistance of both trial and appellate counsel. He sought a reversal of the conviction and a remand for a new trial. The PCR judge granted a hearing. Following a twenty-four day PCR hearing, Judge Reddin denied defendant relief. Defendant now appeals, and we affirm.

I.

To address the issues presented on appeal, we set forth an expansive recitation of the facts derived from the original trial and those adduced at the PCR hearing. We first reiterate the facts as we described them in our earlier opinion affirming defendant's conviction.

At trial, the State presented the following evidence. L.S., the victim, was eleven years old on September 6, 1996, the date defendant kidnapped and sexually assaulted her. The incident occurred just after 4:00 p.m.[.] It rained throughout the day.

 

L.S. was walking home from a bakery when a man approached her. The man asked her twice what time it was, and she replied that she did not know, kept walking, and crossed the street. Shortly after that, the same man grabbed her from behind, with one hand around her waist and the other over her mouth, and carried her behind a red house.

The man forced L.S. to touch his penis and then to put it into her mouth. During the assault, the man made sexual remarks to L.S.[.] He also put his hands around her throat and told her that if she did not do as he instructed, he would strangle her. The man apparently ejaculated into her mouth and then told her to spit it into his hand. He then "splashed" the fluid into the bushes.

 

At that moment, the woman who lived in the red house opened her door, and the man told L.S. to run away, which she did. L.S. ran home and told her sister part of what had happened. L.S. told her sister only that the man had grabbed her and threatened her. She was able, however, to describe the man to her sister. L.S.'s sister was not sure what to do, so she telephoned her friend Shannon, whose father is a police officer. Shannon came over to the house, and the girls called the police.

 

Officer Kevin Gottheiner arrived at L.S.'s home at approximately 5:25 p.m.[.] L.S. told Gottheiner the same thing she told her sister and described the man in the same way, as being a thin white male, with short, curly black hair, around five foot nine,1 wearing green shorts and a green, yellow and red jacket or shirt. Gottheiner drove L.S. back to the scene of the assault so that he would know exactly where the event had taken place. When they returned to L.S.'s house, her mother was there, and the officer updated the mother on what had happened. Before he left, Gottheiner asked L.S. if she remembered what the man looked like well enough to describe him to a sketch artist, and L.S. replied "yes." After he left the residence, Gottheiner continued to search the area for the perpetrator. Gottheiner later returned to the scene of the assault, but was unable to retrieve any evidence because the rain had washed it away.

Shortly after Gottheiner left, L.S. revealed the entire episode to her mother. Her mother in turn telephoned Gottheiner to advise him of the full extent of the assault. Gottheiner reported the new information to Detective Cappuccio, who told him that sexual assault cases of juveniles under the age of twelve were handled by the county prosecutor's office. The police then advised the prosecutor's office of the situation.

 

In accordance with procedure, Gottheiner did not speak with L.S. again about the incident. He did, however, return to the home to pick up the clothing that L.S. was wearing at the time of the assault. Gottheiner told L.S. and her mother that the prosecutor's office would conduct an interview with L.S. on Monday.

 

On Monday, September 9, 1996, L.S. and her mother went to the Child Advocacy Center, a facility specially designed by the prosecutor's office for interviewing children. The prosecutor's office videotaped L.S.'s interview with Investigator Marotta. Investigator Herten and Detective Cappuccio observed the interview on a television monitor. L.S. did not know that she was being videotaped or monitored. It is the policy of the prosecutor's office to videotape allegations of sexual abuse or assault on children under twelve.

 

On September 11, 1996, L.S. went to the police station with her mother to help the police compose a sketch of the man who assaulted her. L.S. first gave a general description of her assailant to Lieutenant Trowbridge and then looked through groups of photographs to pick out features that matched those of her assailant. At this time, L.S. was not trying to identify defendant from the photographs. She was merely trying to find features similar to defendant's to facilitate the sketching process.

 

Lieutenant Trowbridge testified that in developing these sketches, he always tried to ask open-ended questions so as not to influence what the person tells him. Although Trowbridge did not document the exact changes that L.S. instructed that he make to the drawing, he testified that he effectuated whatever changes she requested. Trowbridge also stated that people always make corrections to the initial sketches and that he does not normally document the alterations. The sketch was completed and circulated, and the police began to gather photographs of suspects based on the sketch.

L.S. first viewed a photo array on September 20, 1996. She looked at a total of twelve pictures, but did not find the man who assaulted her. The pictures were presented to her in two groups of six. Defendant's picture was not in either group. Before she viewed the photographs, Detective Cappuccio explained to L.S. that it was important not to pick a photograph unless she was sure, and that this process also helped the police rule out people who are innocent. Detective Cappuccio testified that L.S. looked at the pictures very carefully before telling him that the man was not there.

L.S. returned to the police station on October 23, 1996, to view another set of photographs. Detective Cappuccio gave L.S. the same instruction as he had previously. He presented L.S. with a set of six photographs, in a manner consistent with the September procedure. Defendant's photograph was included in this array as photograph number three. L.S. picked out defendant's picture as that of her assailant. The picture of defendant was taken in front of a jail cell door. Neither the sketch interview, nor either of the photo line-up interviews was videotaped.

Once L.S. identified defendant, the police conducted another videotaped interview with her so that they would have enough information to obtain a search warrant. The second interview took place on November 6, 1996, at the Child Advocacy Center, and was conducted by Investigator Escobar. The second interview took place in the same manner as the first and was monitored by Marotta and Cappuccio. Escobar questioned L.S. specifically about the clothes her attacker wore and asked for any further details that L.S. could recall. Escobar also questioned L.S. about the man's hands, whether she recalled any specific smells, and whether the man had any scars. L.S. did not recall anything new about his hands, nor did she recall any smells or remember any scars.

On November 12, 1996, pursuant to a search warrant, the police seized several items of clothing from defendant's residence. Although the clothes resembled those described by L.S., she did not identify any of this clothing as that worn by her attacker. Defendant was subsequently arrested.

 

At trial, defendant presented his case as one of misidentification. Defendant is a house painter by trade. His wife and a neighbor testified that he was painting the neighbor's house on the day of the assault. Defendant also apparently has several scars on his face.

 

[State v. Gilreath, No. A-4118-98 (App. Div. June 15, 2000) (slip op. at 2-7).]

 

As a critical issue on this appeal is identification, we set forth additional facts derived from the record before us related to that issue. The police identified defendant as a suspect based on a separate incident on October 18, 1996, in Ridgewood, New Jersey, when a man approached two teenage girls and physically assaulted one of them. As a result of that incident, defendant was arrested and charged with various offenses.

Following the Ridgewood incident, a Haledon police officer saw the photograph of defendant taken by Ferrante and noted it was similar to the sketch of L.S.'s attacker. On October 23, 1996, Detective Cappuccio of the Haledon Police Department conducted a photographic lineup identification procedure with L.S. using the photograph of defendant from the Ridgewood incident, along with five other booking photographs of similar-looking white males. Detective Cappuccio told L.S. it was very important that she only identify one of the pictures as the man who attacked her if she was sure, and she was under no obligation to pick out any of the pictures. L.S. scanned the photographs from left to right, and when she viewed the third picture, "she suddenly stopped, her eyes widened and she [stared] at i[t] for a few seconds longer th[a]n the others, and then she quickly looked to the lower left to view the bottom row. She looked from left to right, and then pointed to picture #3 and stated, 'that's him.'" Cappuccio asked L.S. whether that was the man who had sexually assaulted her, or whether it just looked like him. L.S. responded, "that's the man." When Cappuccio asked her how she felt when she saw her attacker's face again, L.S. stated, "I felt scared looking at him." Cappuccio noted L.S.'s comments and her initials on the photo array next to defendant's photograph.

On November 6, 1996, L.S. described the sexual assault in detail to a Special Victims Unit investigator, Luz Escobar, and showed him on a map where she walked that day and where her attacker took her. L.S. explained that her assailant was wearing a green jacket, green shorts, and low-cut white running shoes with green stripes on them. The police obtained a search warrant for defendant's home based on L.S.'s photographic identification and the additional information she provided.

The police executed the search warrant at 5:30 a.m. on November 12, 1996 at defendant's home. The officers seized several pairs of shorts fitting L.S.'s general description and a green jacket-type of shirt. Following the search, the police showed L.S. various articles of clothing recovered, but L.S. could not identify any of them with certainty as being worn by her attacker. On the morning of November 14, 1996, the Haledon Police Department went to defendant's residence, waited for him to leave for work, pulled over his vehicle and arrested him for the kidnapping and sexual assault of L.S. The police advised him of his Miranda rights, once before and once after transporting him the Haledon police headquarters.

On February 26, 1997, James and Linda Cava,2 next door neighbors of defendant's parents, proceeded to the Haledon Police Department to give statements regarding their knowledge of defendant's whereabouts on the day L.S. was attacked. Initially, Linda told the police she and her husband knew defendant was not the perpetrator because on September 6, 1996, he was at their home working on a house-painting job that defendant's father had started in August 1996. When asked how she knew September 6 was the date that L.S. was sexually assaulted, she stated she was not sure, but she also said "maybe I saw a sketch or a picture of him. My husband keeps up with that, you should speak to my husband."

Additionally, when Detective Cappuccio asked Linda about the events of September 4, 1996, she responded, "I can't remember back four months" and "I knew you were going to do this[,] asking for a lot of details." Linda asked if James could be present during the interview, but when the police declined and said that doing so could influence the statements, she "demanded a break[,] abruptly, got up, walked out of the room and exited the building." The officers followed her and overheard her speaking to James outside. When James asked her to go back in, she responded, "They're asking too many details." The police advised them that arguing was unnecessary because they would not force anyone to give a statement.

At that point, Linda left the police station, and James went back inside, where he participated in an interview. When asked why he wanted to speak to the police, he responded, "We want justice done." Regarding the events of September 6, 1996, James claimed he went running at about 4:30 and returned at about 5:15. Detective Cappuccio's report then states that "[a]t this point James asked Detective Cappuccio 'the girl was assaulted about 4:30 or 5:00, isn't that right?'" James told the officers that defendant came to the Cava home with his wife to discuss the Haledon sexual assault and stated, "I need your help, you might need to give testimony." Finally, James reported that a detective hired by defendant's attorney had visited the Cava home and recorded statements from James and Linda.

Following his indictment and prior to trial, defendant "served a formal Notice of Alibi." Defendant, thereafter, filed a motion seeking a Wade3 hearing to challenge L.S.'s identification and the police procedures used to obtain that identification. The motion was denied, and we denied leave to appeal.

On September 16, 1998, trial commenced in the Law Division. On direct examination, L.S. described the sexual assault, recounting the facts of that event as well as the events that followed in the ensuing months. Defense counsel, Brian Neary, then cross-examining L.S. at length, primarily focused on the processes utilized by the police to obtain an identification of her attacker. Counsel also questioned L.S. about the procedures the prosecutor had used to prepare her for her testimony, including showing her the courtroom and explaining where the judge and the defendant would be sitting.

In addition, Neary asked L.S. about whether she had noticed the scars on defendant's nose and over his eyebrow on his forehead. She responded that she had never noticed a scar and did not report a scar to the police. L.S. said, "I didn't notice that because I wear glasses," which she needed "to see a distance." She also acknowledged that if she were looking at a person's face closely, she wouldn't need her glasses to see if the person had any facial scars.

Immediately after L.S.'s testimony concluded, counsel announced that defendant had chosen not to testify in his own defense. The judge advised defendant of his constitutional rights regarding his decision whether to testify. The trial judge questioned defendant about the voluntariness of the decision as well as discussions with counsel. Defendant confirmed that it was his choice not to testify.

Following that colloquy between defendant and the judge, defendant's wife Blanca Gilreath testified for the defense. Blanca claimed that she worked on a painting job with defendant on September 6, 1996, the day L.S. was sexually assaulted, from 5:30 to 7:30 p.m., and that they worked late so they would finish before defendant's father came home from vacation.

On cross-examination, Blanca claimed that she learned about the September 6, 1996 sexual assault upon L.S. "maybe a couple of days" before November 12, 1996, when the police executed the search warrant at the home she shared with defendant. She and defendant became aware that he was a suspect because they saw the police sketch drawn by Lieutenant Trowbridge with L.S.'s assistance. Blanca acknowledged that the sketch resembled defendant.

James also testified for the defense regarding defendant's alleged alibi. He recalled that he had hired both defendant and defendant's father to paint his house in September 1996. He believed that defendant had worked late on September 6, 1996, because he was behind schedule, and that by Saturday, September 7, "the job was to be almost completely done."

According to James, defendant and Blanca visited his home on the evening of November 13, 1996, after the police executed the search warrant at defendant's home but before defendant was arrested. Defendant told him that night that he could not have committed the sexual assault because he was working at the Cava home at the time the assault took place. However, James could not remember whether defendant was actually present at his house on the afternoon of September 6.

Defendant appealed his convictions. In his only point on appeal, defendant argued the trial judge erred by denying his motion for a Wade hearing. He challenged the reliability of L.S.'s identification of him as the perpetrator of the sexual assault and the allegedly suggestive procedures used by the police in obtaining that identification.

We rejected that argument, finding there was no evidence that the police had utilized an impermissibly suggestive identification procedure, L.S. was a reliable witness who "unhesitatingly chose defendant's photo from the array" and it was "not likely that defendant would have prevailed had a Wade hearing been held." State v. Gilreath, No. A-4118-98T2 (App. Div. June 15, 2000) (slip op. at 11). Defendant's petition for certification was denied. State v. Gilreath, 165 N.J. 606 (2000).

Defendant filed a timely PCR. The PCR judge4 conducted a twenty-four day plenary hearing to address the issues raised in the PCR. At the hearing, the State presented Neary, who described his professional experience and his expertise as a criminal defense attorney. In preparing Gilreath's defense, Neary retained a private investigator who obtained statements from the Cavas. In addition, the investigator examined a series of other acts of lewdness that had been reported as taking place on the same day and in the same geographic area as the L.S. assault.

Throughout witness and trial preparation, Neary maintained "continuous" contact with defendant and his family. In addition to reviewing the statements the investigator obtained from Linda and James Cava, Neary also met personally with the Cavas at their home to discuss their role in the matter. Neary recalled that he prepared the Cavas as potential witnesses by discussing their knowledge of the facts underlying the case over a long period of time.

However, Neary further explained that the use of alibi witnesses may be an ineffective and risky trial strategy because they can divert the jury's attention from the State's heavy burden to prove the defendant's guilt beyond a reasonable doubt and instead refocus the jury on the credibility or accuracy of the alibi witnesses. As he explained:

I'm measuring my words because it's the dilemma of that alibi witness. Okay? An alibi actually will - - in some ways assumes a burden in the case, because there's proof beyond a reasonable doubt, you put an alibi witness on, you're making an affirmative step. And although there's no affirmative duty to assume a burden of proof, alibis can do that.

 

Neary introduced defendant's alibi theory through James. He chose James as a witness rather than Linda because he believed James, was a retired naval officer who served and was injured in the Vietnam War, would present better on cross-examination than Linda. In addition, Neary expressed concern that on cross-examination, Linda would be asked to explain why she had initially gone to the police station to give a statement regarding defendant's alibi but left the station before actually giving a statement. Neary concluded that Linda's refusal to give a statement to the police would damage her credibility and compromise her usefulness as an effective alibi witness.

In Neary's opinion, the most effective defense was to focus the jury's attention on the weaknesses in L.S.'s identification. For instance, Neary believed the fact that L.S. never mentioned a "prominent" scar on defendant's nose demonstrated that L.S. may have been mistaken in identifying defendant as her attacker. He rejected the use of an expert and concluded that:

there was enough material that was available with regard to the issue of mis-identification that you didn't - - this isn't a cross-racial identification where - - where one member of one race is identified by someone else. And there were, I believe, enough inconsistencies with regard to it that the traditional tools of cross- examination could be used for a trial to establish reasonable doubt on the issue of mis - - on the issue of identification.

 

As to character witnesses, Neary further explained that he decided not to call the character witnesses defendant suggested because "most of us have somebody who could come and say something nice." In his experience, character witnesses usually add little evidential weight to a defense, and any value they contribute is often outweighed by the potential that the prosecutor will reveal weaknesses in their testimony by aggressively cross-examining them.

Although she did not testify at trial, Linda testified at the PCR hearing and gave a detailed account of her activities on September 6, 1996. She claimed she was aware that Blanca, defendant's wife, arrived at her home on September 6 at approximately 5:40 p.m., because she remembered overhearing defendant and Blanca discuss what to eat for dinner. Linda also testified that she recalled defendant worked late that day painting at her home, because "[h]is father was coming back on Sunday and he wanted to have the job completed."

Linda proffered the following reasons for leaving the police department before giving a statement: "I felt quite intimidated. I just was very uncomfortable." She acknowledged she "had only met [defendant] approximately a week before he started the job"; she did not know defendant well; and her relationship to his family was a neighborly one. Moreover, Linda claimed that she remembered Neary visiting her home twice to talk with her and her husband. Both visits were only about twenty minutes long, and they did not discuss any substantive facts of the case.

On cross-examination, Linda was asked about a statement she made to the police in February 1997, in which she claimed she had known defendant and his wife for about one and a half years and that they had been to each other's homes. However, Linda did not remember making that particular statement and again claimed she had never met defendant until he came to her home accompanied by his father for the painting job. Although she was aware defendant had returned home to live with his parents at some point prior to September 1996, she insisted she had never seen him before he came over to paint her house.

At the PCR hearing, defendant testified that after he was arrested in the unrelated Ridgewood assault incident, he and his wife were bothered when they saw the poster based on the police sketch of L.S.'s attacker. He claimed he first became aware that he might be a suspect in the sexual assault of L.S. when his father told him the clothes described on the poster seemed similar to the clothing the police looked for when they searched defendant's home in November 1996.

Defendant claimed that Neary never discussed trial strategy with him. He also alleged that Neary: did not follow his requests regarding which witnesses to call; "was always in a rush"; "didn't seem really interested in what I had to say"; was "always in a rush to move onto something else"; and "was, kind of, aloof, distant." Additionally, defendant claimed he told Neary he wanted to call an expert witness to testify about memory issues with respect to eyewitness identifications. He testified that his sister researched memory issues in the identification process and "sent Mr. Neary a copy," but "nothing was ever done with that."

Following the hearing, the PCR judge denied the petition. Concluding that defendant had not shown sufficient grounds to warrant granting PCR under Rule 3:22-2, the judge explained:

[D]efense counsel did the best he could[] with what he had to work with. He called and didn't call certain witnesses; he objected to proffered evidence; he made various motions; he put on an alibi defense and he gave a commendable summation considering . . . what he had to work with. The defendant did not testify. The jury saw and heard all of the evidence. It was evidence that could not be modified or altered. A good lawyer may be able to bend the facts, but he or she cannot change them. This [c]ourt gets the sense that the State's witnesses were very credible and the jury obviously believed them. Mr. Neary was clearly prepared. He made countless points in his cross-examinations and in his arguments to the jury. All of these points raised by [defendant] about what trial counsel did or did not do, in this [c]ourt's opinion, are trivial in the overall scheme of things and would have absolutely no effect on the outcome of the trial, had the trial been conducted differently. All of these criticisms of the trial attorney . . . illustrate a perfect example of the type of hindsight analysis that . . . should not be the standard of review in assessing counsel's performance. . . . The defendant, as has been said, is not entitled to a perfect trial. He is entitled to a fair trail. Notwithstanding all of the points raised, it is clear that the evidence against the defendant was monumental and he received a very fair trial.

 

This appeal followed.

II.

On appeal, defendant raises the following issues:

Point One.

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S POST-CONVICTION RELIEF CLAIMS THAT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS, AND A FAIR TRIAL, HAD BEEN VIOLATED BY THE GROSSLY DEFICIENT PERFORMANCE OF HIS TRIAL AND APPELLATE COUNSEL.

 

A. Defense Counsel Failed to Provide Effective Assistance by Refusing to Call Mrs. Cava as an Alibi Witness and Failing to Investigate Promising Leads Deprived Defendant of a Fair Trial.

 

B. Defense Counsel Failed to Provide Effective Assistance by Failing to Call Any of the Twenty Character Witnesses Who Were Willing to Testify on Defendant's Behalf.

 

C. Given the Fact that the State's Case Relied Exclusively on L.S.'s Identification of Defendant, Defense Counsel's Inability to Even Meet or Confer with an Expert to Determine if One Was Necessary to Discredit Testimony Constitutes as Ineffective Assistance of Counsel and Deprived Defendant of His Constitutional Right to a Fair Trial.

 

Stress

 

Forgetting curve

 

Relation back

 

Confidence-accuracy correlation

 

Suggestiveness of pretrial identification procedures

 

Exposure Duration

 

Memory Distortion

 

Cross-Racial Identification

 

D. Defense Counsel's Failure to Prepare Witnesses for Trial Constitutes Ineffective Assistance of Counsel.

 

E. Defense Counsel Provided Ineffective Assistance by Failing to Call Defendant as a Witness on His Own Behalf.

 

F. Defense Counsel's Failure to Raise Serious Issues of Juror Misconduct Constitutes Ineffective Assistance of Counsel.

 

G. Defense Counsel Failed to Argue that Defendant's Conviction was Against the Weight of the Evidence Before the Trial Court and Appellate Division.

 

H. Defense Counsel's Failure to File a Motion to Dismiss the Indictment Due to Prosecutorial Misconduct Was Improper and Denied Defendant His Right to a Fair Trial.

 

Point Two.

 

DEFENDANT'S TRIAL WAS TAINTED BY EGREGIOUS PROSECUTORIAL MISCONDUCT, WHICH DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND COMPLETE DEFENSE.

 

A. The State Purposely Presented False and Misleading Evidence to the Grand Jury.

 

B. The State Withheld Exculpatory Evidence Regarding Another Attacker Who Reportedly Committed Sexual Assaults In The Same Vicinity As And At A Time Proximate To The Alleged Attack.

 

C. The State Tainted The In-Court Identification Of Defendant By Inappropriately (1) Revealing To L.S. That Defendant Was A Suspect In Another Alleged Sexual Assault, And (2) Coaching L.S. For The Identification By Telling Her Where Defendant Would Be Sitting In The Courtroom.

 

D. The State Failed To Have The Photographic Lineups And Sketch Production Videotaped, And To Have The Photographs For The Sketch Preserved.

 

We begin our analysis with a consideration of the basic principles of law relevant to the issues raised on this appeal.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

In assessing the first prong, a court must determine whether counsel's conduct "fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Nunez-Valdez, 200 N.J. 129, 161 (2009) (internal quotation marks omitted). In considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of professional assistance." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (internal quotation marks omitted). As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]

 

As stated above, the second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). To prove this, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Further, "the Law Division should, in the first instance, hear PCR petitions raising claims of ineffective appellate counsel." Gaither, supra, 396 N.J. Super. at 513 (citing State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994)).

Because this PCR was determined after a plenary hearing and the judge made findings as to credibility, we generally defer to a PCR court's factual findings that are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145 (2005) (quotation omitted); State v. Locurto, 157 N.J. 463, 470-71 (1999). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted); State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 170 N.J. 207 (2001). The standard of review on questions of law raised in a PCR petition is de novo. Id. at 415.

In addition to other issues raised, the focus of defendant's appeal is the alleged failure of counsel to call witnesses, both lay and expert. The duties imposed on counsel in this regard are well-settled.

Generally, a criminal defense attorney "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The failure to investigate potential witnesses may constitute ineffective assistance. State v. Deutsch, 229 N.J. Super. 374, 377 (App. Div. 1988) (citing Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695-96). A defendant may also establish ineffective assistance by showing that counsel failed to call exculpatory witnesses on his behalf. State v. Petrozelli, 351 N.J. Super. 14, 25 (App. Div. 2002). Moreover, "[t]he complete failure to investigate potentially corroborating witnesses cannot be attributed to trial strategy. To be entitled to deference, a decision not to pursue a particular line of investigation must be based on reason, not dereliction of duty." State v. Arthur, 184 N.J. 307, 342-43 (2005) (internal citations omitted). However, the "decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Significantly, if counsel determines that proffering a witness, even if potentially exculpatory, may prove harmful to the defense, such conduct falls within the scope of strategic decisions and cannot later be challenged as a basis for finding ineffective assistance of counsel.

The decisions of which witnesses to call at trial and the testimony to be elicited from them, as well as the extent to which the State's witnesses should be cross-examined or impeached, are all strategic determinations that fall within counsel's discretion. State v. Coruzzi, 189 N.J. Super. 273, 323 (App. Div. 1983), certif. denied, 94 N.J. 531 (1983); State v. Holmes, 290 N.J. Super. 302, 308 (App. Div. 1996). Because a criminal "defense attorney's decision concerning which witnesses to call to the stand is 'an art,'" our "review of such a decision should be 'highly deferential.'" Arthur, supra, 184 N.J. at 321 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

The failure to conduct an investigation of a defendant's alibi defense can also support an ineffective assistance of counsel argument. However, "[c]ounsel's fear that a weak alibi could cause more harm than good is the type of strategic decision that should not be second guessed on appeal." State v. Drisco, 355 N.J. Super. 283, 291 (App. Div. 2002) (holding that defense attorney's strategic decision not to present an alibi defense did not constitute ineffective assistance of counsel), certif. denied, 178 N.J. 252 (2003). Even if we determine that counsel's strategic decision not to investigate a potential alibi or not to present it as a defense was a sufficiently serious error that it satisfies the first prong of the Strickland/Fritz test, defendant still must also establish that there is a reasonable probability that his alibi defense, if presented, would have changed the ultimate outcome of the proceedings. Ibid.; see also State v. Ways, 180 N.J. 171, 192 (2004) (noting that "[a] defendant is not entitled to benefit from a strategic decision to withhold evidence" and that "the belated introduction of evidence may be relevant to the PCR court's evaluation of the evidence's credibility."). We now apply these well-established principles to the issues raised on appeal.

Defendant asserts that Neary's failure to call Linda as a witness, even though allegedly urged by defendant, to support his alibi defense constituted ineffective assistance of counsel.

Although a "complete failure to investigate potentially corroborating witnesses cannot be attributed to trial strategy," and a "decision not to pursue a particular line of investigation must be based on reason, not dereliction of duty," Arthur, supra, 184 N.J. at 343, the record here supports the judge's conclusion that counsel did perform a full investigation of possible trial strategies, including conducting interviews with potential alibi witnesses. The narrow issue is whether Neary's decision not to call Linda as an alibi witness, and only use James' testimony to corroborate defendant's alibi theory, was such a serious error that it meets the ineffective assistance of counsel test.

Certainly, Neary presented an alibi defense through the testimony of James. Neary concluded that James would serve as a stronger witness due to his perception that James would better withstand cross-examination. Linda's abrupt departure from the Haledon Police Department, after becoming frustrated with the fact that the detective was "asking too many details," raised serious issues as to her viability as a credible and supportive witness. Neary's decision not to call Linda as a witness was a calculated strategic decision that cannot be challenged in hindsight. Defendant retained an attorney to make carefully conceived decisions on his behalf. This decision met that criteria. Defendant also asserts that Neary never asked Linda why she left the police station. The record before us suggests otherwise. Not only was Linda interviewed twice by Neary, she gave a statement to Neary's investigator, but most important, at the critical time involved in the alleged commission of the crime, she was not observing defendant. She was in her room. Linda was a high-risk witness.

The risks posed by the facts attendant to Linda's conduct and their potential to portray a weak alibi on cross-examination were obvious, and Neary's decision to present the alibi through James rather than Linda was reasonable. See Drisco, supra, 355 N.J. Super. at 291 ("[c]ounsel's fear that a weak alibi could cause more harm than good is the type of strategic decision that should not be second guessed on appeal."). As Neary testified in the PCR proceedings, alibi witnesses can be ineffective because they can divert the jury's focus from the State's burden to weaknesses in the credibility or accuracy of the alibi witnesses. Moreover, Judge Reddin observed the following weaknesses in the potential alibi testimony:

I'm not so sure that either [James] or [Linda] fit into the classic definition of an alibi witness because . . . . [a]n alibi witness is someone who places the defendant at a location other than the location of the crime such that if the alibi witness is believed then the defendant could not have committed the crime. I don't see [James] or [Linda] as fitting into that definition. . . .

 

Here however, the jury could have believed the [Cavas] and yet still believed that the defendant committed the crimes. The crime occurred [at] about 5:15. [James] saw the defendant before that and [he] went jogging. By the time [James] came back the defendant was still at his house, still painting. The proximity of the [Cava] house to this offense is very, very close. A perpetrator . . . could have gotten there on foot within a very short period of time, he could have gotten there by car within probably less than two minutes. He could have . . . committed the crime and gotten back in time where [James] would not even know he was gone. . . .

 

Neary didn't overlook the possibility of calling [Linda]. . . . he listed her on the witness list. . . . When she was cross-examined here she said that there was one day where [defendant] didn t pain[t] because he had to take care of a car. . . .

 

But here's the critical part of her testimony in this proceeding . . . I find that she laid down [in bed] at 4:30 and remained in her room until 5:30. She got up two times and checked on her son and at that time saw [defendant]. She said . . . the periods between the checking [were] 15 minute intervals.

 

I'm not so sure that makes her a key alibi witness or an alibi witness at all because again, we're talking about the distance from her house to the scene of these crimes as being extremely close . . . there's no exclusion by her testimony of [defendant] as the perpetrator.

 

Additionally, Judge Reddin stated, "I certainly don't think [Linda's] testimony would have changed the outcome of this case." The judge properly concluded defendant failed to meet the necessary standard under the Strickland/Fritz ineffective assistance of counsel test and denied defendant's PCR motion.

Defendant also asserts that Neary's failure to call any character witnesses deprived defendant of his right to the effective assistance of counsel. However, as the PCR judge correctly noted in his decision, counsel's decision not to call character witnesses to testify on defendant's behalf was a reasonable, strategic determination that cannot form the basis of an ineffective assistance of counsel claim.

Judge Reddin reasoned that character witnesses generally are not helpful to a defendant in a jury trial, and may actually pose risks that could harm the defense. He concluded:

This was not oversight. . . . Character witnesses are usually good friends and family members of the accused, who usually know very little about the facts of the case. Often times when they are confronted with the details of the case they do not help, but rather hurt the defendant. . . . [T]hey are . . . less effective when the defendant elects not to testify and . . . often highlight the fact that the defendant chose not to testify, despite all the safeguards regarding such a decision.

 

Again, the determination of which witnesses to call on behalf of the defense, based on an informed weighing of their relative strengths and weaknesses is a consideration that falls within trial counsel's sound discretion. See Coruzzi, supra, 189 N.J. Super. at 323. At the PCR hearing, Neary noted that "hopefully most of us have somebody who could come and say something nice." His opinion was that character witnesses typically add little evidentiary weight to a defense, and their value often overshadowed by the potential that weaknesses in their testimony will emerge on cross-examination.

We discern no basis for questioning both counsel's strategic decision not to proffer character witnesses or the judge's conclusion that calling such witnesses presented potential problems for defendant. Our Court has recognized that decisions regarding which witnesses to call are an "art." See Arthur, supra, 184 N.J. at 321. As such, we will be highly deferential to such decisions, especially here where it is unlikely that the outcome would have been different even with such witnesses.

Defendant further contends that Neary's decision not to use an expert witness to discredit the victim's eyewitness identification deprived him of his right to the effective assistance of counsel. Again, because the attorney's failure to employ an expert witness to challenge L.S.'s identification of defendant was a reasonable, strategic decision, we find no error related to this claim.

Judge Reddin's oral opinion highlighted a reason for Neary's decision not to use an expert witness on eyewitness identification and memory issues. The sketch of the assailant, as created by Lieutenant Trowbridge with L.S.'s assistance, was "remarkably similar" to defendant's appearance. Any expert witness called by the defense would have been forced to acknowledge that close similarity on cross-examination. The proposed expert "would have been put in a position where he either would have hurt the defendant with his answer or he might have looked to the jury like he wasn't being truthful." The prosecutor also likely would have confronted the expert witness with the fact that L.S. positively identified defendant as her attacker in the second group of photographs the police showed her, but she quickly determined that the man who sexually assaulted her did not appear in the first set of photographs. Her consistent conduct further emphasized the victim's identification to the jury in addition to the similarities between Lieutenant Trowbridge's sketch and defendant's face.

Judge Reddin concluded that an expert witness probably would not have added any substantive assistance to the defense in this case and could have been harmful. Considering the possible risks of drawing the jury's attention to weaknesses in the case and the questionable benefits of that potential testimony, Neary's failure to call such an expert witness does not constitute ineffective assistance.

Additionally, even if Neary should have called an expert, defendant failed to "show that the deficient performance prejudiced the defense" by establishing "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 ("a reasonable probability is a probability sufficient to undermine confidence in the outcome."). The sketch combined with the victim's photo identification established a sufficient basis to conclude that the result would have been no different.

Defendant makes great moment of the various factors identified in United States v. Norwood, 939 F. Supp. 1132 (D.N.J. 1996), that may impact on an identification including stress, the forgetting curve, relation back, confidence-accuracy correlation, suggestiveness of pretrial identification procedures, exposure duration, memory distortion and cross-racial identification. Again, the identification here resulted in a composite sketch that proved to be an accurate representation of defendant as well as a later identification through a photo array and an in-court identification. We find no error here.

Defendant also argues his attorney did not adequately prepare witnesses for trial, and that this alleged error constitutes ineffective assistance of counsel. As the judge noted in both oral and written decisions, there was no evidence that defense counsel failed to prepare witnesses for trial, and Neary's testimony that he met with each witness to discuss the facts underlying the case and fully prepare them to testify was credible. The judge found "this entire point to be so over[-] reaching that it is almost silly."

Specifically, Judge Reddin explained that a defense attorney's "particular method of preparing a witness is his method," apparently referring to the principle that a reasonable trial strategy that lies within counsel's sound discretion cannot form the basis of an ineffective assistance of counsel claim. See Coruzzi, supra, 189 N.J. Super. at 323. Neary testified that he prepared witness by meeting with them personally and discussing their knowledge of the facts and involvement in the case. The judge concluded that Neary's PCR testimony was credible and this finding is entitled to deference. Harris, supra, 181 N.J. at 415. See also Johnson, supra, 42 N.J. at 161 (reviewing court should affirm trial court's fact-finding if supported by substantial credible evidence because a trial judge has the "opportunity to hear and see the witnesses and to have the 'feel' of the case.").

Because defendant could not establish that Neary failed to adequately prepare witnesses for trial, he cannot satisfy the requirements that: (1) Neary's performance was deficient, meaning comprised of "errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," and (2) counsel's deficient performance prejudiced the defense. Fritz, supra, 105 N.J. at 58 (internal quotations omitted). We find no merit to this claim.

We reach the same result regarding defendant's claim that he received ineffective assistance when he told Neary that he wished to testify on his own behalf but did not testify because Neary advised him that it was against his best interests.

The judge concluded:

There is absolutely no merit to this contention. The transcript clearly shows that the defendant voluntarily chose not to testify in his own defense. It was abundantly clear that he, with the advice of counsel, chose not to testify. Without question it was his decision. This [c]ourt finds his argument in this area to be totally incredible. Accordingly, there is no need to discuss this point of contention in any further detail.

 

These conclusions are fully supported by the record and Neary's testimony. Defendant was advised of his right to testify or not to testify in his own defense, and defendant made his own independent decision not to testify after receiving advice. In addition, the decision of whether to recommend that a defendant testify in a criminal case is a fact-sensitive, strategic determination that falls within trial counsel's discretion. Nothing in the credible record supports defendant's position that he was prevented from testifying against his will.

Defendant next alleges that his trial attorney committed error by not alerting the trial court to instances of juror misconduct and that this error "allow[ed] the jury to deliberate on defendant's case without a judicial probe as to their competency." According to defendant, "Assistant Prosecutor Lisa Squiteieri spoke to, laughed with or improperly interacted with the jury." Apparently defendant's family friend and sister observed Ms. Squitieri enter the courtroom with the jurors and one of the jurors may have said or done something causing the other jurors to laugh, and Ms. Squitieri may also have smiled.

The PCR judge found that the interaction was "extremely minimal at best" and "trivial at best." The judge concluded that this was not "in any way improper interaction with jurors" and that if "Neary was apprised of the situation, he would be correct to ignore it."

Defendant also alleges that a juror overheard his wife in the bathroom say that she "messed up" while testifying and that this also constitutes juror misconduct.

The PCR judge also concluded that this claim was without merit. "No juror mentioned any such thing to the Court or an officer at the time. This Court finds it incredible that the 'event' ever occurred or that it had any effect on the outcome of this case."

Defendant fails to demonstrate that Neary's failure to raise any potential issues regarding the jury's legal competency (which were likely far from sufficient to constitute juror misconduct) was deficient performance that prejudiced the defense. Fritz, supra, 105 N.J. at 58.

Defendant also argues that counsel was ineffective because he did not raise on appeal that the convictions were against the weight of the evidence. Such claim "shall not be cognizable on appeal unless a motion for a new trial on that ground was made in trial court." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (citing R. 2:10-1). Even if such conduct were evidence of ineffective assistance of counsel, defendant must establish that such failure met the second prong of Strickland. The test to be applied is whether "[i]n considering whether a jury verdict was against the weight of the evidence, . . . 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting R. 2:10-1), certif. denied, 134 N.J. 476 (1993).

Because the argument was not raised at trial, to reverse based on a finding that the convictions were against the weight of the evidence, we are required to find plain error, which must be "clearly capable of producing an unjust result." R. 2:10-2. See also State v. Bankston, 63 N.J. 263, 273 (1973) (noting that the possibility of unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a verdict it otherwise might not have reached") (citing State v. Macon, 57 N.J. 325, 335-36 (1971)). In defendant's direct appeal, the only issue raised was a challenge upon the reliability of the victim's eyewitness identification and the trial court's refusal to grant defendant's Wade motion. In his written decision, the PCR judge found that even if defense counsel had raised this argument it "would have failed because there is no validity to it." Based on the evidence before the jury, the judge correctly concluded defendant could not establish that his convictions were against the weight of the evidence.

Finally, defendant claims his trial attorney provided ineffective assistance because he did not file a motion to dismiss the indictment based on alleged prosecutorial misconduct. We likewise find this claim to be without merit.

III.

Defendant also asserts that the trial "was tainted by egregious prosecutorial misconduct, which deprived defendant of his constitutional right to a fair trial and complete defense." He specifically asserts that the State presented misleading evidence to the grand jury; the State withheld exculpatory evidence; the State tainted the in-court identification; and the State failed to videotape the photographic lineup and sketch production5 and to preserve the photographs for the sketch.

In all instances, the PCR judge rejected these various claims on their merits. These issues were also barred by Rule 3:22-4 (barring any issue in a PCR that could have been raised in any prior proceeding or appeal). Defendant has failed to demonstrate that his PCR petition should have been granted under one of the other exceptions provided in Rule 3:22-4,(amended 2010) that "enforcement of the bar would result in fundamental injustice" or "that denial of relief would be contrary to the Constitution." State v. Preciose, 129 N.J. 451, 459 (1992).6

Defendant makes some moment of the prosecutor's introducing the victim to the courtroom before trial to show her the courtroom and identify where the judge, the jury, the prosecutor, the defense counsel, defendant, the public and any other persons associated with the trial would be seated. Defendant asserts that this tainted the identification and was improper "coaching" of the witness. We disagree.

The prospect of participating in a trial, whether criminal or civil, is daunting to any layperson not familiar with the process and especially to an eleven-year-old victim of a sexual assault. To introduce a participant to the courtroom setting is neither improper coaching nor prosecutorial misconduct. If anything, it represents appropriate preparation and in many instances, a method of relieving some of the anxiety that will accompany exposure to a trial setting. Criticism of the prosecutor's conduct in this instance is misplaced.

In his written decision of October 22, 2007, Judge Reddin addressed the merits of the claims that were procedurally barred by R. 3:22-4. We adopt his findings as to these various claims and affirm for the reasons set forth in his comprehensive opinions.

Affirmed.

1 L.S. reported that the man was approximately the same height as her father, who is five foot nine.

2 For ease of reference, we refer to them by their first names.

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

4 The PCR judge was not the trial judge.

5 The initial interviews with the victim were video-taped consistent with State v. Michaels, 136 N.J. 299 (1994).

6 Defendant moved before us to strike portions of the State's appendix. We deny the motion noting that we did not rely on the challenged portions of the appendix in reaching our decision on this appeal.