STATE OF NEW JERSEY v. RONALD HAYES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2136-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD HAYES,

Defendant-Appellant.

________________________________________________________________

June 23, 2011

 

Submitted March 28, 2011 Decided

 

Before Judges Lisa and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-11-2982.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronald Hayes appeals from an order entered November 21, 2008, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He argues that he was denied effective assistance of counsel because his trial attorney failed to request a hearing under State v. Michaels, 136 N.J. 299 (1994), to challenge the admissibility of out-of-court statements and testimony of two child sex assault victims. We affirm.

I.

On January 31, 2002, a jury found defendant guilty of first-degree aggravated sexual assault of Irene Miller,1 then nine years old, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault of Irene's friend, Amy Collins, then seven years old, N.J.S.A. 2C:14-2b, as a lesser-included offense of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count four); three counts of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1) by exposing his penis in the presence of Irene, Amy, and Irene's five-year-old half-sister,2 Sylvie Mason (counts two, five, and seven); and three counts of third-degree endangering the welfare of a child involving Irene, Amy and Sylvie, N.J.S.A. 2C:24-4 (counts three, six, and eight). The crimes were committed in July 2000. On April 12, 2002, the court imposed a ten-year term on count one; a five-year term on count four; three-year terms on counts three, six, and eight; and six-month terms on counts two, five and seven. All sentences were concurrent. Defendant was also required to comply with Megan's Law and subjected to community supervision for life.

We affirmed the convictions in an unpublished opinion, State v. Hayes, No. A-0096-02 (App. Div. Feb. 10, 2005), but reversed and remanded to require the trial court to merge the convictions for endangering the welfare of the child into the assault convictions, and to correct an error in the judgment of conviction. In affirming the conviction, we addressed at length the trial court's decision, after a pre-trial evidentiary hearing pursuant to N.J.R.E. 104(a), to admit out-of-court statements of Irene, Amy, and Sylvie under the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27). State v. Hayes, supra, slip op. at 7-16. We reviewed the questions and answers included in the written interviews of Irene and Amy. We concluded that Irene's and Amy's statements were sufficiently trustworthy.

Based on our independent review of the children's statements and the surrounding circumstances, we agree with the judge's analysis. The children understood the questions and responded spontaneously. The questioning was not suggestive, and the responses were age appropriate. Their mother did not put words in their mouths. They were neither coached nor coerced in providing their answers. They had no motive to lie. We are satisfied, as was the trial judge, that the statements made both to their mothers and to the police were inherently trustworthy.

 

[Id. at 15-16].

 

The Supreme Court denied defendant's petition for certification. State v. Hayes, 183 N.J. 587 (2005).

The clerk acknowledged the filing of defendant's pro se PCR petition on July 9, 2008, which was more than five years after entry of the final judgment of conviction. See R. 3:22-12 (requiring a petition for post-conviction relief be filed not more than five years after entry of judgment unless excusable neglect for delay is shown). However, defendant's petition was accompanied by documents executed on December 10, 2003, including an affidavit of service on that date. At oral argument on the petition, defense counsel asserted that defendant submitted his PCR petition while his direct appeal was pending, and the papers "got lost in the shuffle at that point in time." He urged the court to treat the petition as timely filed. The State did not argue to the contrary. The trial court considered the petition on the merits, and so shall we.

Defendant had been released from custody when the petition was heard rendering moot part of the request for relief.3 Yet, he continues to be subject to Megan's Law and community supervision for life. Judge Peter J. Vazquez, who presided over the trial, denied the petition on November 21, 2008 without an evidentiary hearing in thorough written and oral opinions. This appeal followed.4

II.

We shall not recite the facts at length. We rely instead on our opinion from the direct appeal. We focus here on the facts surrounding the interrogation of Irene and Amy.

In summary, the proofs at trial demonstrated that one day in early July 2000, defendant entered a bedroom where Irene, Amy, and Sylvie were playing, along with their friend Gail, who lived in the house. Defendant was the boyfriend of Gail's mother, Ethel Brown. Defendant exposed his penis to Irene, Amy and Sylvie, and put his hand down Irene's and Amy's pants, digitally penetrating Irene's vagina and touching Amy's vagina.

Soon after the incident, Irene and Sylvie disclosed to their mother, Yolanda Miller, that defendant had pulled down his pants and exposed himself, but did not disclose that he had touched any of the girls. Yolanda Miller testified at the Rule 104(a) hearing that she had asked her daughter what had happened, but did not inquire specifically if defendant had touched her, and her daughter did not volunteer that fact. Based on Irene's disclosure, Yolanda Miller prohibited her daughters from returning to the Brown house.

Yolanda Miller did not talk about the incident again with her daughters, except to remind them of the prohibition she had imposed, until about a month later. Yolanda Miller testified at the Rule 104(a) hearing that about a month after the initial disclosure, she happened to ask Irene again what had happened. Irene repeated what she had said before. Yolanda Miller then asked specifically if defendant had touched her, and then Irene disclosed that he had put his hands inside her pants and put his finger on her vagina. Both Irene and Sylvie denied that defendant had touched Sylvie.

Yolanda Miller told Amy's mother, Laura Yates, about what Irene had reported. Yates spoke to Irene, who then disclosed that Amy was present during the incident, and defendant had touched Amy's vagina and Irene's, and exposed his penis. In her trial testimony, Yolanda Miller denied having discussed the incident directly with Amy.

Laura Yates testified in a separate Rule 104(a) hearing in the midst of trial, regarding the admissibility of statements that her daughter Amy Collins had made to her. Yates testified that Yolanda Miller had informed her that defendant had touched her daughter as well as Irene. Yates testified that she immediately went over to the school where Amy was attending summer camp. While they walked through the park near the school, Yates questioned her daughter. "I asked her what happened? Did anything happen at [Gail's] house over the summer? She said, yeah."5 Yates then stated that Amy told her that defendant had touched Amy's vagina with his finger, and he exposed his penis. Yates then called the Montclair Police.

Detective James Carlucci interviewed Amy and Detective James Lalor interviewed Irene. Each officer took a statement in the form of a written question-and-answer interview. However, each was preceded by a pre-interview. Neither the pre-interview nor the interview were placed on a video or audio recording.

Carlucci described the process in the pre-trial hearing. The following explanation was elicited on direct examination:

A. I spoke with [Amy Collins] prior to taking the statement and just spoke general about school. Then, we got into the fact I asked her questions about the difference between the truth and a lie? Had she known her body parts? Then, I asked her what had happened?

Q. Let me stop you. Did she answer the questions?

A. Yes.

Q. Was she able to identify her body parts?

A. Yes.

Q. Did she indicate she knew the difference between a truth and a lie?

A. Yes.

Q. Continue.

A. And we talked about what had happened at [Ethel Brown's] house.

Q. At that point did she explain to you what happened?

A. That's correct. She went on to explain what happened, that she was penetrated by Mr. Ronald Hayes. At the time she said Ron.

Q. And well, can you explain to us what you recall her telling you at that time prior to her taking the statement?

A. She said that she was in the bedroom with [Irene Miller, Sylvie and Ethel6]. They're the other two children that were involved. That's [Ethel Brown's] children. She said that Ron came in, and he had pulled out [sic] his shorts and that he had touched her in her vagina.

Q. Officer, now, at some point you did take a statement. Correct?

A. That is correct. After speaking with her for a few minutes, we went forward with the statement which is in question and answer format. Type a question and ask her, and she give the answer, and that answer would be typed in the way she said it.

 

On cross-examination, defense counsel explored the nature of the pre-interview.

Q. Now, as to the statement of [Amy Collins], you testified that you did a preinterview, is that what it's called?

A. Yes.

Q. Okay. And that's where you interview the child and ask her questions about different things like you said about the body parts and things like that. Correct?

A. Yes. Usually in the beginning we just talk about general things just to make the child feel comfortable.

Q. From there you go into the incident itself and alleged allegation. Correct?

A. Correct?

Q. And you ask questions about who was there, what happened. Correct?

A. Yes.

Q. And you testified earlier as to what your recollection was as to who she said was there. Correct?

A. Yes.

Q. And then you after you did a report you took a statement of [Amy Collins]?

A. That's correct.

Q. Basically asked her the same questions. Correct?

A. Correct.

Q. And that's what is embodied S-1 I believe it is. S-1. Correct?

A. Yes.

Q. All right. And what you testified earlier, when asked about your preinterview, is what she told you. Correct?

A. Yes.

 

Although not elicited in the questioning of Carlucci in the pre-trial hearing, Amy's mother, Laura Yates testified that she was present with her daughter during Carlucci's interview. Carlucci also testified at trial and, on cross-examination, described how he conducted the pre-interview before taking the transcribed statement.

Detective Lalor described the process by which he took the written statement of Irene Miller.

Q. What other statement did you take?

A. [Irene Miller]

Q. And how old was [Irene Miller] approximately at the time you took the statement?

A. She was nine years old at the time.

Q. When you took the statement was anyone else present?

A. Yes, her mother was.

 

. . . .

 

Q. Now, where was that statement taken?

A. This statement was taken at police headquarters in the Detective Bureau.

 

. . . .

 

Q. What is S-4?

A. This is the statement I took from [Irene Miller] in the presence of her mother.

Q. Now, detective, did you do anything with [Irene] prior to taking her statement?

A. Yes, I asked her what had transpired several weeks earlier.

 

. . . .

 

Q. At this point what has she explained to you?

A. What she explained to me she was over a friend's house named [Gail]. While she was there she was with [Gail, Irene and Amy Collins].

Q. She indicate anybody else with her?

A. No, that was it. There's three or four girls, that was it. Okay.

While they were there Ron entered the bedroom while the girls were already in there playing. Ron entered the bedroom, and at this point the light went out, the light was immediately put back on, then Ron approached [Irene], and put his hand down her pants, and slid her underwear to the side, and stuck his finger in her vagina. At this point she told him to stop. He stopped. Then, she stated to me that he pulled down his pants to around his knees. At this point she looked away, so she really couldn't see anything. Then, he pulled up his pants.

Q. Did she indicate whether he touched any of the other girls in the room?

A. Yes, she did. She did say that. She stated he did touch [Amy Collins] in the same way.

Q. And after that point you took her statement?

A. Yes.

 

. . . .

 

Q. Now, prior to taking the statement and being advised were you aware of whether she told anyone else prior to telling this story to you?

A. Yes, she told her mother and she also spoke with the other girls about it. And according to her [Gail] this happened to [Gail] and [Amy] prior to happening to her, but she didn't believe them at first and then it happened to her.

 

On cross-examination at the Rule 104(a) hearing, Lalor stated that Carlucci took Amy's statement the same day, perhaps even at the same time, that he took Irene's statement. Lalor also stated on cross-examination that when he did his pre-interview of Irene, she indicated that defendant had also assaulted Amy and Gail (although Gail denied that defendant touched her or anyone inappropriately). Lalor also testified at trial about the methodology that he used in interviewing Amy.

III.

In appealing the denial of his PCR petition, defendant raises the following points:

POINT I

 

THE PCR COURT SHOULD HAVE FOUND THAT TRIAL COUNSEL'S FAILURE TO REQUEST A MICHAELS HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

 

POINT II

 

THE PCR COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

 

POINT III

 

DEFENDANT'S PETITION FOR PCR SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION.

 

Having reviewed the record, we affirm substantially for the reasons set forth in Judge Vazquez's written and oral opinions. Judge Vazquez applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. A petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) that counsel's performance created 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, 688, 689, 694, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

Judge Vazquez concluded first that defense counsel was not ineffective when he failed to request a hearing pursuant to State v. Michaels, supra, because counsel had already argued unsuccessfully that the children's statements were inadmissible as untrustworthy under N.J.R.E. 803(c)(27). Secondly, defendant had failed to make a prima facie showing that the result would have been different had a Michaels hearing been requested. The court compared the factors used to determine admissibility of a child-victim's statement as trustworthy under N.J.R.E. 803(c)(27), and the factors considered in determining whether to exclude a child-victim's statement and testimony as not sufficiently reliable under Michaels. See State v. Delgado, 327 N.J. Super. 137, 147 (App. Div. 2000); State v. Michaels, supra, 136 N.J. at 318.

Citing his earlier findings in the pre-trial hearing, in which he applied the admissibility factors for N.J.R.E. 803(c)(27), Judge Vazquez concluded, based on the totality of circumstances, that the court would not have excluded the children's prior statements and testimony under Michaels:

But when you look at the totality of the circumstances here . . . I don't see any prompting, or suggestive questioning, I see a consistence, inconsistencies as when it's repeated by the children a couple times, the questions asked and recorded by the police officers certainly seem to indicate that the children don't have a problem with their mental state understanding what is going on, and asking what they're being asked to do, and understanding the truth, and knowing the body parts and identifying them. So again, there's a lack of motive certainly no motive to suggest or even hinted at as why the children would make up such a story. So, considering all those factors which the comments the rule suggests we look at, and again under the totality of the circumstances, I do find statements to be inherently trustworthy, and accordingly find them admissible under N.J.R.E. 803(c)(27).

 

The analysis used in a[n] N.J.R.E. 104 hearing is similar to a Michaels Hearing and thus it is likely that had a Michaels Hearing been requested and granted, it would have been determined once again that there was no prompting or suggestive questioning of the children. Moreover, the children's statements read into the record to the jury at trial provided further evidence that there was no prompting or suggestive questioning.

 

. . . During Petitioner's trial there was no showing of suggestiveness. Thus, even if Petitioner's trial attorney had requested a Michaels Hearing he would have lacked the ability to evidence anything suggestive in the interviewing technique employed.

We agree with Judge Vazquez's analysis. We add the following comments, beginning with a review of Michaels.

The Court in Michaels established the standard and procedure for determining whether a trial court should exclude an alleged child victim's out-of-court statement and in-court testimony because of the suggestiveness of "pretrial events" and "the investigatory interviews and interrogations." 136 N.J. at 320. The defendant bears the initial burden to trigger what is now known as a "Michaels hearing" by showing "'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." Ibid. (citation omitted). The proffered evidence must be sufficient "to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing." Id. at 321. Only after defendant "establishes that sufficient evidence of unreliability exists" must the State prove by clear and convincing evidence that "despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques." Ibid.

The alleged child victims in Michaels faced an array of coercive or suggestive practices, including: "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions." State v. Michaels, supra, 136 N.J. at 321. The Court recognized that where a child's statements or testimony retain sufficient reliability, it is left to the jury to consider the impact of the interviewing techniques on the child-witness's credibility. Id. at 323. The Michaels Court affirmed the principle that generally, a child victim is "presumed no more or less reliable than any other class of witnesses." Id. at 320.

The test for determining whether a child's out-of-court statement is admissible under N.J.R.E. 803(c)(27) overlaps with the test for determining threshold reliability of a child's out-of-court statement and in-court testimony under Michaels. Five nonexclusive factors may be considered in assessing trustworthiness under N.J.R.E. 803(c)(27): "(1) the circumstances under which the same statement was made to [the parent]; (2) its spontaneity; (3) the mental state of the declarant; (4) the terminology attributed to the declarant; and (5) the declarant's lack of motive to fabricate." State v. Delgado, supra, 327 N.J. Super. at 147 (internal quotation omitted). A court's analysis under N.J.R.E. 803(c)(27) may be informed by Michaels principles and the related social science regarding the suggestibility of child victims. See, e.g., State v. P.S., 202 N.J. 232, 253-54 (2010) (applying Michaels principles in declining to require tape recording as a pre-condition to admissibility under N.J.R.E. 803(c)(27)); State v. D.G., 157 N.J. 112, 130-34 (1999) (applying Michaels principles in determining that videotaped statement was not sufficiently reliable to be admitted under N.J.R.E. 803(c)(27)).

Defendant argues that the trial court did not consider, either in its original Rule 104(a) hearing or with respect to the PCR, the interviewing techniques that the police used in this case, which the Michaels Court deemed suggestive. Defendant focuses on the fact that the police conducted unrecorded pre-interviews of Irene and Amy. He argues that only after the officers were confident of the children's answers did they conduct the question-and-answer interview that transcribed the children's statements. Defendant also argues that the children had the opportunity to conform their versions with each other during the month that transpired between the incident and the police interview. Defendant also submits that it was misleading and unfair to present to the jury the transcribed statements as if they were spontaneous responses.

We are unpersuaded. We recognize that video-recording the complete interaction between a child witness and a police interviewer is favored. State v. P.S., supra, 202 N.J. at 253; State v. D.G., supra, 157 N.J. at 133. Also preferred is the retention of interview notes. State v. P.S., supra, 202 N.J. at 254. Yet, the "absence of a tape, standing alone, is not dispositive." Id. at 253; see also State v. Michaels, supra, 136 N.J. at 313-14, n.1 (noting that existence of recording "is a factor bearing on . . . reliability"). The Supreme Court has declined to hold that a "break in the videotaped interview of a child victim of sexual assault automatically renders the second half of the videotape inadmissible." State v. D.G., supra, 157 N.J. at 133.

Defendant speculates that the police interviewers suggested or molded the children's responses in the pre-interview through the use of inappropriate techniques. However, nothing in the record of the Rule 104(a) hearing or the trial supports that claim. Bald assertions will not suffice to establish a prima facie claim of ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (stating that a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel").

There is no reason to conclude that had the court conducted a Michaels hearing, defendant would have elicited significant proofs regarding suggestiveness other than those already elicited in the Rule 104(a) hearing and the trial. See State v. D.G., supra, 157 N.J. at 130 (finding that confrontation of child witness at trial may be considered in determining whether admission of evidence under tender years exception was prejudicial). For example, there is no compelling evidence that the girls coordinated their stories. Although Lalor testified that he somehow was aware that Irene "spoke with the other girls" about the incident before his interview, Amy testified that she did not discuss the incident with Irene before being questioned by her mother, who specifically denied asking her daughter leading questions about what had happened. Similarly, Yolanda Miller testified that she asked her daughter Irene open-ended questions, aside from asking her daughter whether defendant had touched her several weeks after the initial report that he had exposed himself.

Nor is there any indication from the testimony of the two detectives that they had pre-conceived goals in their interviews of the two girls. They conducted separate interviews of the two girls. The detectives each testified that the pre-interviews were designed to develop a rapport, establish that the girls understood their obligation to tell the truth, and to understand what happened without prompting. There is no evidence that they suggested versions of events that were then repeated in the transcribed portion of the interview. There is no evidence of vilification of defendant. Thus, there was adequate support for the trial court's conclusion that a Michaels hearing would not have led to exclusion of the children's out-of-court statements and testimony.

This case is strikingly dissimilar from State v. D.G., supra, cited by defendant, where the Court ordered the exclusion of a child's statement. Concededly, in D.G. there was an unrecorded interchange followed by a recorded one; in this case, there was a non-transcribed exchange followed by a transcribed one. But, that essentially is where the similarity ends.

In D.G., the child initially declined to substantiate allegations of sexual penetration in a recorded interview. In D.G., the recording was suspended, the child spoke to her aunt, and then returned and claimed that the defendant had touched her vagina with his penis. Moreover, there was compelling evidence, reflected in pre-break and post-break recordings, that the officer conducted an unduly aggressive and suggestive interrogation based on pre-conceived notions of the truth. Moreover, there was evidence that the child was promised rewards if she told the officer what he wanted to hear. State v. D.G., supra, 157 N.J. at 133.

There is no evidence in the record before us that approaches the suggestiveness outlined in D.G. There also is no evidence in this case that Irene or Amy were recalcitrant. Nor is there any basis to conclude that the police questioned the children aggressively, repeatedly, or inappropriately during the pre-interview. According to the officers, the pre-interviews were brief and unremarkable. Nor is there any evidence of rewards offered or given to Irene or Amy.

We find support for our conclusion in State v. Smith, 158 N.J. 376, 387-91 (1999), where a two-stage interview did not give rise to exclusion. The police officer conducted a recorded interview of the child victim; he then suspended recording to confer briefly with another detective to determine if he omitted any questions; then, the interviewing officer returned, on camera, and asked additional questions and repeated previous ones, to firm up the child's version of events. Id. at 388.

When Smith was decided in the Appellate Division, the panel held that the trial court should have excluded the second half of the recorded interview because of the suggestive and leading nature of the questioning, which was "more akin to cross-examination." State v. Smith, 310 N.J. Super. 140, 146 (App. Div. 1998). However, the Supreme Court reversed. The Court disagreed that the questions were unduly suggestive, and also did not find leading questions to be per se unacceptable. State v. Smith, supra, 158 N.J. at 390. "Indeed, the use of leading questions to facilitate an examination of child witnesses who are hesitant, evasive, or reluctant is not improper." Ibid.

Likewise, in this case, the mere fact that the police conducted a two-phase interrogation in which it repeated and firmed up answers in the second phase, is an insufficient basis to exclude the children's statements. We recognize that, unlike in Smith, our review is hampered by the absence of video. Yet, the totality of circumstances support the trial court's determination that a Michaels hearing would not have led to a different result. At most, we are presented with defendant's speculation that something untoward occurred during the unrecorded pre-interview.

Nor was defendant entitled to an evidentiary hearing on his petition. The court conducted a pre-trial hearing on the admissibility of the children's out-of-court statements, albeit under N.J.R.E. 803(c)(27) and not Michaels. The issue before us is whether the trial court, on the petition for post-conviction relief, should have held an evidentiary hearing to determine whether (1) it was ineffective not to request a Michaels hearing, and (2) had a Michaels hearing specifically been conducted, the result in the case would have been different. The trial court concluded that an evidentiary hearing was not required.

We discern no error. A hearing is unnecessary where it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or [where] the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (stating that trial court has discretion to evaluate an issue as "lacking adequate factual or legal merit" to warrant a hearing), certif. denied, 158 N.J. 72 (1999). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. State v. Cummings, supra, 321 N.J. Super. at 170. Similarly, when a defendant claims that a pre-trial taint hearing should have been conducted, he must make a reasonable showing as to what the pre-trial taint hearing would have revealed.

Applying those standards, the trial court correctly denied defendant's request for a evidentiary hearing on his PCR petition. The combined record of the Rule 104(a) hearing and trial includes extensive questioning of Irene and Amy, their mothers, and the two detectives regarding the circumstances surrounding the various statements that the children made about the incident. It was incumbent upon defendant to indicate what the evidentiary hearing on the PCR petition would have revealed that was not already a part of the record as a result of the pre-trial hearing and the trial testimony. Having failed to do so, the court reasonably concluded that an evidentiary hearing was unnecessary. Based on the record before it, the trial court correctly decided that had the court conducted a pre-trial Michaels hearing, it would not have changed the result.

In sum, we find no error in the court's determination, without an evidentiary hearing, that defendant was not denied effective assistance of counsel as a result of his attorney's failure to request a Michaels hearing. Defendant's remaining arguments on appeal, which simply refer without discussion to the points in defendant's pro se petition, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

1 For convenience, we use pseudonyms for the child victims and witnesses and their parents. The pseudonyms match the actual initials.

2 Sylvie and Irene had the same mother (who we will pseudonymously refer to as Yolanda Miller), but had different surnames. We surmise that they had different fathers.

3 The delay rendered moot defendant's claim that he was denied effective assistance of counsel in evaluating an offer to plead guilty in return for a recommended sentence of four years.

4 We permitted defendant to file his appeal from the PCR denial as within time on February 8, 2010.

5 In her trial testimony, Yates specifically denied asking her a leading question. "Q. And when you spoke to her in the park you asked her did someone touch you. Is that right? A. No, I asked her what happened over Miss [Brown's] house, and she told me." Also in trial testimony, Amy denied having discussed the incident with Irene before being questioned in the park.

6 According to the officer, Gail was also known by her mother's name.