STATE OF NEW JERSEY v. JOSEPH IADIPAOLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6250-06T46250-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH IADIPAOLI,

Defendant-Appellant.

_______________________________________________________________

 

Submitted December 14, 2009 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-441.

Courtney E. Black, Jeffrey Lichtman of the New York Bar, admitted pro hac vice, and Marc Fernich of the New York Bar, admitted pro hac vice, attorneys for appellant (Mr. Lichtman and Mr. Fernich, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Iadipaoli appeals from a December 5, 2008 order that denied his first petition for post-conviction relief (PCR) without conducting an evidentiary hearing. We reject defendant's claims that trial counsel rendered ineffective assistance by: failing to introduce documents establishing that the charged conduct could not have occurred at the time alleged in the indictment; mishandling allegedly decisive medical issues; and failing to discredit the complaining witnesses with their prior inconsistent statements. We do, however, agree that defendant was entitled to an evidentiary hearing on his claim that trial counsel was ineffective because he failed to interview readily available fact witnesses whose exculpatory testimony could have "impugned the prosecutor's case." We reverse the denial of PCR and remand for an evidentiary hearing.

I.

On June 29, 2007, defendant was convicted of four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). The judge sentenced him to an aggregate term of imprisonment of twenty-seven years subject to the eighty-five percent parole disqualifier required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

The State's proofs at trial consisted of the testimony of four brothers, S.M., age nine; D.M., age ten; L.M., age eleven; and J.S., age seven. Each child testified that he often slept overnight at defendant's home, after playing games and watching television there. Each boy claimed that he slept in defendant's bed with the bedroom door closed while three or four other adults were present in the house. Two of the boys testified that defendant performed anal intercourse upon them, a third maintained that defendant performed fellatio upon him, and the fourth child described defendant touching his penis. All four testified that such activity occurred in defendant's bed.

The State also presented the testimony of Alissa Vinci, an investigator with the Child Abuse Unit of the Essex County Prosecutor's Office, who described her interviews with the four children. On cross-examination, Vinci acknowledged that she had not visited the crime scene, and therefore had not collected evidence such as bodily fluids. She also conceded that the medical evaluations of the children yielded no finding to support their allegations. Her testimony included the playing of the taped interviews with the children. Defendant did not testify, nor did he present any witness testimony. Before the case went to the jury, defendant moved for a judgment of acquittal, which was denied.

On August 8, 2007, defendant filed a notice of appeal in which he asserted that trial errors denied him a fair trial. He also claimed he received ineffective assistance of trial counsel. On February 27, 2008, defendant's appeal was dismissed for failure to prosecute.

On April 29, 2008, defendant filed the PCR petition that is the subject of this appeal, in which he alleged that trial counsel provided ineffective assistance: 1) by failing to interview and present at trial witnesses whose exculpatory testimony would have raised a reasonable doubt about his guilt; 2) by failing to introduce documentary evidence establishing that the charged conduct could not have occurred at the time alleged in the indictment; and 3) by "grossly mishandl[ing] decisive medical issues in the case."

To support his claim that trial counsel was ineffective for failing to interview and present testimony of three witnesses who would have provided favorable testimony, defendant attached affidavits from each one. Sade Jennings was defendant's goddaughter and lived with defendant during the relevant time period. Had she been called as a witness, Jennings would have testified that the four boys did not visit defendant's home individually as they claimed, but only in groups. Moreover, she would have testified that they always slept on defendant's living room floor and never, as asserted, in his bedroom. She also stated in her affidavit that she never heard any of the boys complain of sexual abuse by defendant, and commented that all four were "always happy and excited about coming to [defendant's] house." Finally, she maintained that defendant's trial attorney never initiated any contact with her.

The second affidavit was submitted by Jennifer Bonjean, a member of the New York Bar, who participated in the telephone interview of S.J., a minor. S.J. was the goddaughter of defendant and lived with him, her mother and Jennings during the time of the alleged abuse. S.J. told Bonjean that the boys never told her of any inappropriate conduct by defendant, nor did she ever witness any such conduct. S.J. also asserted that the boys slept in the living room, not in defendant's bedroom, and she believed that the boys "were coached by their mother to falsely accuse defendant."

Bonjean submitted a second affidavit, this one describing her participation in a telephone interview with Englvar (Candy) Jackson, who was the boys' godmother. During Bonjean's telephone interview with Jackson, Jackson asserted that S.M. lived with her until the summer of 2003, when he was eight. She further stated that the boys and their mother visited defendant's house on weekends. Jackson was never concerned for any of the children's safety when they visited defendant, and none of the children ever complained of sexual abuse. Jackson also asserted that she was never contacted by defendant's lawyer, or anyone on counsel's behalf, prior to defendant's trial.

Defendant also provided his own affidavit in support of his PCR petition, in which he certified that in anticipation of trial, he provided trial counsel with the names of Sade Jennings, Englvar Jackson and S.J. Defendant also maintained that during his discussions with trial counsel, he told his attorney that he lived with all three at the time of the criminal activity alleged in the indictment.

During argument on defendant's PCR petition, he maintained that the affidavits he had presented from Jennings, and from Bonjean on behalf of S.J. and Jackson, all of whom lived in defendant's home at the relevant time, cast doubt on the reliability of the victims' testimony about the sleeping and visiting arrangements, and thereby could have raised a reasonable doubt as to his guilt. Defendant argued that trial counsel's failure to interview the three constituted ineffective assistance entitling him to, at a minimum, to an evidentiary hearing on his petition. In a written opinion, the PCR judge rejected all four of defendant's claims. Focusing

on trial counsel's failure to call Jennings, Jackson or S.J. as witnesses, the judge characterized such failure as "trial strategy." The judge listed potential reasons why trial counsel failed to call any of the three as a witness, including bias, credibility issues, and testimony that might reflect negatively on defendant. Without taking any testimony from trial counsel concerning why he failed to call the three as witnesses, the judge provided reasons for such failure. The judge explained:

Candy was [defendant's] friend; Sade and S.J. were his god-daughters. All three could have been accused of bias as a result of their relationship with defendant.

At one point, Candy returned S.M. to his mother without the permission or knowledge of D.Y.F.S. There was also an allegation that while in Candy's care, S.M. was beaten by her with a belt multiple times while naked, and was fed bottles of hot sauce by her son.

Candy's testimony that she wasn't worried about her children's safety would have simply echoed the neglectful attitude of the boys' mother, especially in light of the abuses that allegedly happened while she had custody of S.M.

The issue of the living arrangements for S.M. was particularly double-edged. Candy, for reasons stated above, could have been shown to have had knowledge and culpability toxic to the defense. It was clearly strategic not to call a witness with such major credibility issues to dispute the timeline. Given the negatives attached to her, failure to produce her does not satisfy the second prong of Strickland.

One of the boys exhibited signs of depression and inappropriate sexual behavior after the assaults, and stated as part of his therapeutic evaluation that he had seen S.J. engage in sexual relations twice with defendant. Although S.J. denied this, it could have cast a wider net of suspicion against defendant, and if admitted, affected S.J.'s credibility.

Sade did not exculpate defendant entirely. She equivocated on the issue of whether she was at the home every time the boys were there. Her affidavit leaves wide-open the issue that they could have been abused in her absence.

On appeal, defendant raises the following claims:

I. IADIPAOLI'S PETITION FOR POST-CONVICTION RELIEF WAS IMPROPERLY DENIED WITHOUT AN EVIDENTIARY HEARING

A. STANDARDS FOR POST-CONVICTION RELIEF

B. IT WAS ERROR TO DENY IADIPAOLI'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE HE ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE

1. [TRIAL COUNSEL] FAILED TO INTERVIEW READILY AVAILABLE FACT-WITNESSES WHOSE EXCULPATORY TESTIMONY WOULD HAVE IMPUGNED THE PROSECUTOR'S CASE

2. [TRIAL COUNSEL] FAILED TO REVIEW AND INTRODUCE DISCOVERY DOCUMENTS ESTABLISHING THAT THE CHARGED CONDUCT COULD NOT HAVE OCCURRED AT THE TIME ALLEGED IN THE INDICTMENT

3. [TRIAL COUNSEL] GROSSLY MISHANDLED DECISIVE MEDICAL ISSUES IN THIS CASE

4. [TRIAL COUNSEL] FAILED TO DISCREDIT THE COMPLAINANTS WITH A SPATE OF INCONSISTENT STATEMENTS

C. THE COURT ERRONEOUSLY BRANDED TRIAL COUNSEL'S FAILINGS AS STRATEGY

II.

A judge must grant a defendant an evidentiary hearing on his claim of ineffective assistance of counsel whenever the defendant has established a prima facie case. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992); State v. Moore, 273 N.J. Super. 118, 126-27 (App. Div.), certif. denied, 137 N.J. 311 (1994).

To establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two prongs of the Strickland v. Washington test. First, a defendant must show that counsel was actually deficient. Second, he must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). The New Jersey Supreme Court adopted this test in State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A defendant therefore must show "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 688, n.26 (1984). Acts and omissions that constitute mere tactical strategy do not satisfy the Strickland test. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Furthermore, great deference is paid to the actions of trial attorneys because the standard does not require "the best of attorneys," but only that counsel not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

When evaluating whether a defendant has presented a prima facie case, the PCR judge "should view the facts in the light most favorable to a defendant." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If, under this inquiry, the PCR judge determines that the defendant would be entitled to relief, then the defendant is entitled to an evidentiary hearing unless "the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (citations omitted).

One of the bedrock principles of our Sixth Amendment jurisprudence is the recognition that trial counsel's failure to conduct an adequate pretrial investigation may give rise to a claim of ineffective assistance of counsel. State v. Savage, 120 N.J. 594, 617 (1990). If a thorough investigation has been conducted, counsel's trial strategy is "'virtually unchallengeable.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695). However, when counsel has conducted a "less than complete investigation," and fails to present witnesses at trial who could have presented exculpatory testimony, counsel's claim -- that the failure to call such witnesses was the result of a legitimate strategy decision -- will be subjected to "closer scrutiny." Id. at 617-18. Indeed, when counsel conducts an inadequate, or no, investigation, "counsel deprive[s] himself [or herself] of a reasonable basis on which to later make informed tactical defense decisions." Id. at 620-21.

With these principles in mind, we turn to an analysis of the PCR judge's conclusions. Her reasoning is flawed in three respects. First, without taking any testimony from trial counsel, the judge reached the conclusion that trial counsel's failure to call Jennings, Jackson and S.J. was the result of legitimate trial strategy. Such a determination is not justifiable in the absence of a record supporting it. The judge has no way to know whether trial counsel -- had he interviewed Jennings, Jackson and S.J. -- might have called one or more of them as witnesses. Her conclusion that he would not have is grounded in nothing more than conjecture.

Second, the judge has identified a number of purported reasons excusing the failure to call the three as witnesses even though trial counsel never spoke to any of them or sent an investigator to take preliminary statements from them. Under such circumstances, where no pretrial investigation was conducted, a conclusion that the failure to call such witnesses was the product of a legitimate trial strategy decision must be rejected. Ibid.

For example, while it is true that "Sade did not exculpate defendant entirely" because "[s]he equivocated on the issue of whether she was at the home every time the boys were there," the PCR judge was not entitled to use this as a basis for excusing counsel's failure to investigate the potential that Sade's testimony might have raised a reasonable doubt about defendant's guilt. As is obvious, a defendant is not obliged to prove his innocence; all he need do to gain an acquittal is raise a reasonable doubt about his guilt. For the judge to conclude that Sade's testimony could not have accomplished that result, when trial counsel conducted no investigation, and never interviewed Sade, was, plain and simple, error. The same is true of the PCR judge's conclusions as to Jackson and S.J.

Third, the judge's rationale -- that all three witnesses were burdened by substantial credibility problems that ostensibly justified trial counsel's decision as a matter of strategy not to call any of the three to the stand -- violates one of the cardinal precepts of Preciose. Preciose requires a PCR judge to consider the facts in the light most favorable to the defendant to determine whether a prima facie case has been established. Preciose, supra, 129 N.J. at 462-63.

The PCR judge did not evaluate the potential testimony of Jennings, Jackson and S.J. in a hospitable light. On the contrary, the judge's analysis was confined to a review of all of the problems that would have resulted had any of these witnesses been called; the judge never looked at their testimony from the perspective of whether they could have, either individually or collectively, raised a reasonable doubt about defendant's guilt.

If the jury had believed the three, and believed that the four brothers never slept in defendant's bedroom as they claimed, such testimony had the potential to cut to the heart of the boys' credibility and could have raised a reasonable doubt about defendant's guilt. But the judge never evaluated these three witnesses' testimony in the favorable light that Preciose demands. This too was a fundamental flaw in the judge's reasoning and in her application of the relevant precedent.

We thus conclude that the trial judge erred by finding that the failure to call Jennings, Jackson and S.J. was the result of legitimate trial strategy. That conclusion was unwarranted because trial counsel never testified, trial counsel failed to interview the witnesses and because the judge did not view the evidence in the light most favorable to defendant.

Because defendant's presentation in the Law Division established a prima facie case of ineffective assistance that cannot be excused as trial strategy, the PCR judge erred in denying defendant's PCR petition without an evidentiary hearing. State v. Russo, 333 N.J. Super. 119, 138-39 (App. Div. 2000). We reverse and remand to conduct such a hearing. On remand, the judge must consider the testimony of trial counsel to determine whether his failure to interview the three was excusable and satisfied Sixth Amendment standards for effective assistance. If so, the judge may deny the petition.

If, in contrast, the judge determines that such failure satisfies the first prong of the Strickland/Fritz test, the judge shall then, as Russo requires, hear the testimony of Jennings, Jackson and S.J. "and then mak[e] a qualitative judgment as to whether that evidence, after being subjected to cross-examination, is sufficient to engender a reasonable probability that the result of the proceeding would have been different, or that the evidence presented at the hearing was sufficient to undermine confidence in the outcome of the initial trial." Id. at 140. If so, the petition must be granted and a new trial ordered.

 
Reversed and remanded for an evidentiary hearing.

The judge who presided at defendant's trial had retired by the time defendant filed his PCR petition. Therefore, the petition was assigned to a different judge.

We recognize that Savage was a capital case. However, nothing in the Court's reasoning or holding in Savage remotely suggests that the duty to conduct an adequate investigation is limited to capital prosecutions. Nor do we find anything in the Court's reasoning to suggest that a lawyer who conducts a less than adequate investigation in a non-capital case should be permitted to claim that the failure to call exculpatory witnesses -- whom counsel never interviewed -- was the result of trial strategy.

In light of our disposition, we have not addressed defendant's three additional claims of ineffective assistance of counsel. Those claims lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

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A-6250-06T4

RECORD IMPOUNDED

January 7, 2010