STATE OF NEW JERSEY v. BRANDON EARL BLEHL

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1338-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON EARL BLEHL,

Defendant-Appellant.

_________________________________________________

July 6, 2011

 

Submitted May 24, 2011 - Decided

 

Before Judges Payne and Koblitz.

 

On appeal from Superior Court of New Jersey,

Law Division, Warren County, Indictment No.

06-06-230.

 

Mark Rogers, attorney for appellant.

 

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Christine Engiles, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Brandon Blehl, was accused in an eleven-count indictment of three counts of first-degree aggravated sexual assault on T.B., N.J.S.A. 2C:14-2(a) (Counts One, Two and Three), of three counts of second-degree sexual assault on T.B., N.J.S.A. 2C:14-2(c) (Counts Four, Five and Six); two counts of third-degree aggravated criminal sexual contact with T.B., N.J.S.A. 2C:14-3(a) (Counts Seven and Eight); two counts of fourth-degree criminal sexual contact with T.B., N.J.S.A. 2C:14-3(b) (Counts Nine and Ten), and one count of third-degree endangering the welfare of a minor, T.B., N.J.S.A. 2C:24-4 (Count Eleven). The crimes, consisting of sexual intercourse, cunnilingus, fellatio, and touching, were alleged to have occurred in the period between November 20, 1999 when defendant turned eighteen years of age, and June 26, 2002.

Defendant was tried initially and convicted only of endangering the welfare of a child, the jury having deadlocked on the remaining charges. Following a second trial, he was convicted on all remaining counts of the indictment. Defendant was sentenced to ten years in custody subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.

This appeal arises from the denial by the trial judge of defendant's motion for post-conviction relief (PCR) based on ineffective assistance of counsel and for a new trial based upon allegations of perjury by the victim, T.B., and the alleged discovery of new evidence, consisting of T.B.'s diary, which was alleged to contain exculpatory evidence, and a witness who was unavailable at the time of trial. On appeal, defendant makes the following arguments:

I. THE TRIAL COURT'S FAILURE TO ORDER AN ADJOURNMENT OR MISTRIAL SUA SPONTE AFTER DISCLOSURE THAT THE ALLEGED VICTIM'S POTENTIALLY EXCULPATORY DIARY MIGHT EXIST, CONSTITUTED PLAIN ERROR.

 

II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING THAT IT WAS THE RESPONSIBILITY OF BRANDON BLEHL'S FAMILY TO LOCATE THE DAIRY OF THE ALLEGED VICTIM.

 

III. DEFENSE COUNSEL'S FAILURES (1) TO TIMELY PROVIDE THE COURT AND PROSECUTOR, BEFORE TRIAL BEGAN, WITH THE E-MAILS SHOWING THAT THE ALLEGED VICTIM HAD WRITTEN A POTENTIALLY EXCULPATORY DIARY; (2) TO TIMELY INVESTIGATE THE EXISTENCE OF A POTENTIALLY EXCULPATORY DIARY OF THE ALLEGED VICTIM, AND (3) TO REQUEST AN ADJOURNMENT TO ISSUE A SUBPOENA AND/OR TAKE OTHER ACTIVE STEPS TO LOCATE THE ALLEGED VICTIM'S DIARY, SINGLY AND COLLECTIVELY, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, DEPRIVING BRANDON BLEHL OF A FAIR TRIAL.

 

IV. THE TRIAL COURT'S REFUSAL TO HEAR THE POSTCONVICTION RELIEF MOTION PER R. 3:22-1 ET SEQ. FOR INEFFECTIVE ASSISTANCE OF COUNSEL ON THE GROUND THAT IT WAS "UNTIMELY," CONSTITUTES PLAIN ERROR, AS NO TIME LIMIT EXISTS IN THE RULE NOR IN ANY OTHER AUTHORITY.

 

V. THE TRIAL COURT IMPROPERLY SUBSTITUTED ITS JUDGMENT FOR THAT OF THE JURY BY FINDING THAT THE SUBSTANCE OF THE DIARY AND ITS WILLFUL ALTERATION WOULD HAVE HAD NO EFFECT ON THE JURY'S CONSIDERATION OF THE ALLEGATIONS AGAINST DEFENDANT.

 

We affirm.

I.

Prior to defendant's second trial, on November 8, 2007, defendant's step-mother received an e-mail from Adina Lee, a family friend who was going to school in Florida.1 The e-mail stated:

Hey I was looking through my stuff and something of [T.B.'s] ended up being mixed with mine. . . It is something that will get Brandon off the charges they are recharging him with and aquited2 of the charge he was found guilty this needs to be completely between you and me and that is it. If I hear it out of anybodys mouth I will stop trying to help I have a subpeopna to testify against him on [T.B.'s] behalf and that is not going to happen email back

 

On November 18, 2007, Lee e-mailed:

Hi I found a diary of hers that says she would like nothing more than to get back you for all the times you hurt her as a child and she new the perfect way to do it. A few days later it was talking about how you love John [T.B.'s father and the husband of T.B.'s step-mother] and only YOUR kids [T.B.'s step-siblings] and she was going to do something about it. Then it says That she hates Brandon because he got into a fight with JAY [T.B.'s boyfriend] and He ruined her life and She was going to do something about it It was all dated in or around 7th through 9th grade then starts back up when she goes to her moms because it then talks about DON [T.B.'s birth-mother's boyfriend]. I have been very busy with school and the kids I will try to get back to you asap when you email me.

 

T.B.'s step-mother replied in a November 29, 2007 e-mail with a request for a copy of the diary and an offer of money to cover copying and mailing costs. In a subsequent e-mail of November 30, 2007, Lee stated, after discussing family matters, "let me tell u though this will not get brandon from the charges with susan and wendy [T.B.'s sisters] and they are both testifying against him." Lee then asked if the step-mother wanted copies of the entire diary or the relevant pages.

The step-mother responded on January 9, 2008, confining her e-mail to family matters. The next day, Lee replied, stating in relevant part:

As for what we talked about you had to of told someone because I have gotten a subpeona for the book and I have til Feb to turn the book to the prosecutors office. I do not know what to do about it, but I will tell you if DYFS is off mikes and my case it will be mailed to you before I recv the subpeona. IF YOU KNOW WHAT I MEAN!!! THAT IS THE ONLY WAY IT WILL NOT GO TO THE PROSECUTERS OFFICE AND IF I DO NOT HEAR FROM YOU BY FEB I HAVE NO CHOICE BUT TO TURN IT OVER TO THEM SO WHATEVER DISAPPEARS OUT OF IT I HAVE NOTHING TO DO WITH!!!

 

The record contains no further response from the step-mother with respect to the diary. However, it appears that Lee did not surrender the diary prior to the trial of the matter. At trial and in connection with post-trial motions, the prosecutor denied issuing a subpoena for the diary's production and denied pretrial knowledge of its existence. Defendant has not contested those facts.

According to a certification by T.B.'s step-mother, she told defendant's counsel about the diary at least two weeks before defendant's second trial, and at a hearing conducted one week before the trial, she gave counsel copies of the e-mails with Lee. Although she requested that counsel obtain the diary, he did not do so.

On the first day of trial, the existence of the diary was raised by defense counsel in his cross-examination of T.B. At that time, the following exchange occurred:

Q Now do you keep a diary?

 

A No.

 

Q Did you keep a diary then?

 

A No.

 

Q Did you record any in a journal any events, any of these events recorded?

 

A I think I attempted to record not record any of this but I attempted to keep a journal or diary but when you have younger brothers, or even older brothers, it doesn't work out.

 

Q Where is that journal or diary now?

 

A I have no clue, probably in the trash.

 

. . . .

 

Q Coming forward with these allegations, were you ever motivated to seek revenge against your mother or your stepmother for treating you badly?

 

A No.

 

Q Did you ever think that you would be in a position to seek revenge against [your step-mother]?

 

A. No, and I don't think this trial is revenge against [her], I think it hurts me more than it hurts her. . . . Why would I put myself through this every day?

On the second day of trial, defense counsel disclosed the existence of the diary to the judge, and he was instructed to attempt to obtain it. No request for an adjournment was made on the record,3 and no adjournment was offered. The judge stated: "If I get some evidence from somebody of a subpoena duces tecum, or a copy of the dairy, or something else that assures me that this thing actually exists and is authentic, I'll deal with it. Until then, I won't."

Following trial, which concluded on February 28, 2008, newly-retained defense counsel sought PCR and a new trial based in part on newly discovered evidence, consisting of the diary and an independent witness who could testify that if defendant had molested T.B., the witness would have known of it, and he did not. The motion for PCR was denied on the day of sentencing as prematurely filed. The motion for a new trial was initially heard on November 6, 2008, but was carried until August 21, 2009 because of the lack of trial transcripts. However, at the November hearing, the subject of a "mystery witness," evidently Lee, was raised by the judge. Defense counsel stated in that connection: "I've had contact with that witness, and we would choose not to call that witness."

Prior to the August 2009 hearing, the diary, which had been given by T.B. to the prosecutor without explanation as to how it had come into her possession, was produced to defense counsel. However, pages had been cut with a razor or other sharp implement out of the front part of the book, and such entries as remained did not commence until 2003 a date after the period of criminal activity set forth in the indictment. T.B. gave an affidavit in which she agreed that "the first hard page and one following page" of the diary "appear to be torn out." She stated that she had "no recollection" how or when the pages were removed, and she had no recollection "if there was anything on those pages." T.B. denied tampering with the diary.

The remainder of the diary contained only one reference to defendant. There, T.B. apparently stated that she loved him.4 However, the diary did contain other references to sexual conduct on T.B.'s part, including incest with her father, for which he was tried and is now serving a sentence at the Adult Diagnostic and Treatment Center.

After reviewing the diary and hearing argument, the trial judge determined that T.B., while "evasive at best" had not committed perjury in initially denying that she kept a diary, and that a new trial was not warranted on the basis of newly discovered evidence under standards established in State v. Bey, 161 N.J. 233 (1999), because the evidence was known to the defense prior to trial and because the diary, in its present form, contained no material evidence that would have affected the jury's verdict. This appeal followed.

II.

On appeal, defendant argues that the judge should have granted an adjournment or mistrial sua sponte when defense counsel disclosed that the diary existed and that his failure to do so constituted plain error. We disagree.

The Supreme Court has held:

[A] new trial may be ordered upon a "possibility" of injustice. Still, not "any" possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.

 

[State v. Macon, 57 N.J. 325, 335-36 (1971).]

 

After reviewing the record on appeal, we conclude that defendant has failed to present sufficient evidence to meet this standard.

As we have previously noted, the diary as produced by T.B. to the State had pages excised from it, and in that form, it contained no evidence of relevance to defendant's defense. The record is silent as to when T.B. regained possession of the diary whether before, during or after the trial and as to its condition when returned to her.5 Additionally, the record contains no statement by T.B. regarding the contents of the missing pages, and indeed, she has professed no knowledge of what might have been written there.

The record does contain the statements of Adina Lee regarding the content of the diary. However, they are hearsay in nature, and not admissible pursuant to any of the exceptions to the hearsay rule. Even if the statements were admissible, they are ambiguous in nature, since they suggest a motive for T.B. to testify against defendant, but do not establish that T.B.'s testimony against him was untrue.6 That T.B. sought revenge on her step-mother is not necessarily inconsistent with T.B.'s disclosure of her son's criminal acts. Further, the record contains no affidavit or certification from Lee establishing that the content of the diary was exculpatory in nature. Cf. State v. Cummings 321 N.J. Super. 154, 170 (App. Div.) (requiring in a PCR context that defendant's allegations be factually supported by affidavits or certifications based on personal knowledge), certif. denied, 162 N.J. 199 (1999). Additionally, counsel retained to represent defendant in connection with his PCR and new trial motions and on appeal indicated that he had spoken to Lee and did not intend to call her as a witness when seeking a new trial, thereby suggesting that her testimony would not have been favorable to defendant's cause. In a certification by Lee's mother, she states that Lee told her that the content of the diary would hurt defendant.

Defendant argues additionally that, if an adjournment had been granted, counsel could have confronted T.B. with the defaced diary. However, defendant has not indicated any existing diary passages that could have been utilized to impeach T.B.'s credibility or to have otherwise altered the course of the trial. Further, we find that the existence of the diary, alone, is of marginal value in light of T.B.'s concession on cross-examination that she attempted to keep one.

As a consequence, even if we were to conclude that the trial judge erred in not adjourning the trial or declaring a mistrial sua sponte a conclusion that we do not reach we do not find that defendant has offered sufficient evidence to establish that the possibility of plain error in that regard was "real" and thus that a new trial was warranted.

We also reject defendant's additional argument that the judge improperly placed the burden on defendant's family to obtain the diary. That argument is premised upon a misreading of the record, which merely reflects comments as to what the judge would have done if he had knowledge of a document that potentially exculpated a family member.

III.

Defendant additionally argues that his trial counsel was ineffective in failing to timely produce the e-mails between Lee and T.B.'s step-mother to the State and the trial judge, in failing to timely investigate the existence of the diary and in failing to request an adjournment so that the diary could have been located and produced. Defendant argues also that the trial judge erred in declining to address these issues, ruling that they were prematurely raised and should be the subject of a petition for PCR. We decline to address defendant's substantive arguments and reject the claim that the trial judge erred in doing likewise.

The Supreme Court has stated: "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992); see also R. 3:22-3 (PCR "is not . . . a substitute for appeal or motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending."). We see no reason to deviate from the general policy and rule, particularly given the nature of defendant's allegations against trial counsel.

Affirmed.

 

1 The e-mails suggest that Lee had some sort of relationship with one of T.B.'s step-mother's sons and considerable animosity toward one of T.B.'s sisters.

2 The e-mails are reproduced verbatim, including numerous grammar, punctuation and spelling errors that are not independently noted or corrected.

3 It is possible that such a request was made off the record, since the trial transcript contains an observation by the judge that "that diary must have been known about before today and unless there's some better evidence we have here now, it appears to be just one of these sham requests."

4 The diary has not been reproduced on appeal. Our references to its contents are based on the transcript of the August 2009 motion hearing.

5 However, there is a suggestion in Lee's January 10, 2008 e-mail that she was the one to have removed the pages, since she says there: "IF I DO NOT HEAR FROM YOU BY FEB I HAVE NO CHOICE BUT TO TURN [THE DIARY] OVER TO THEM SO WHATEVER DISAPPEARS OUT OF IT I HAVE NOTHING TO DO WITH!!!"

6 We note that T.B.'s testimony regarding defendant's conduct was corroborated by her two sisters at trial.