STATE OF NEW JERSEY v. TRAMAINE MILLEDGE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0185-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAMAINE MILLEDGE,

Defendant-Appellant.

_________________________________

March 13, 2012

 

Submitted October 24, 2011 - Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-04-0388.

 

Joseph E. Krakora, Public Defender, attorney forappellant (AndrewP. Slowinski, Designated Counsel, on the brief).

 

JenniferWebb-McRae, CumberlandCounty Prosecutor,attorney forrespondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial in 2004, defendant Tramaine Milledge was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2c(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court merged the endangering offense into the sexual assault conviction, and imposed a ten-year custodial sentence with a five-year parole disqualifier, plus registration obligations and various other conditions under Megan's Law. Defendant's convictions were upheld on direct appeal, although his sentence was remanded for further consideration pursuant to State v. Natale, 184 N.J. 458 (2005). See State v. Milledge, No. A-5674-03 (Dec. 15, 2005), certif. denied, 187 N.J. 492 (2006). On remand, the sentence was reinstated.

Defendant then filed a petition for post-conviction relief ("PCR"), alleging that his trial counsel was ineffective in numerous respects, particularly concerning his handling of "fresh complaint" evidence that the State had adduced through a police officer, and as to his efforts to impeach or counter the testimony of the State's sexual assault expert. Following a two-day evidentiary hearing, which included testimony from a sexual assault expert retained by defendant's PCR counsel, the trial court concluded that the standards for relief under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)1 were not met and consequently denied defendant's petition. We affirm that determination, for the reasons that follow.

I.

Because of the heavily fact-specific and technical aspects of defendant's PCR claims and the associated expert testimony, we summarize the relevant factual and procedural history in some detail. Our description of these matters is graphic only by necessity.

The State's proofs showed that on May 25, 2002, the thirteen-year-old victim, L.W., visited her friend M.H.'s house in the City of Millville. Several of L.W.'s friends were present at the house. At 9:00 p.m. that evening, L.W. and two of her friends left the house and went next door to defendant's house in order for L.W. to use the phone to call her grandmother. L.W. had never met defendant before going to his house, and she had not been inside of it before that night.

Once they arrived at defendant's house, L.W. called her grandmother and told her that she was at her friend's house. After L.W. called her grandmother, she asked defendant to use the bathroom.

L.W. testified that defendant then brought her into a dark bedroom instead of a bathroom. Defendant shut the door, and L.W. thought that he locked it. Then defendant removed his pants. Defendant did not say anything to L.W. but he began to remove her clothing. L.W. attempted to push defendant away, but he continued to remove her clothing. Eventually, defendant removed L.W.'s jeans and underwear. L.W.'s shoes were already removed, as she had not worn shoes to defendant's house. Then defendant picked her up, carried her approximately six feet to the bed, and according to the State's proofs, repeatedly had vaginal intercourse with L.W. L.W. approximated that the sexual assault lasted for fifteen to twenty minutes.

L.W. testified that she did not remember whether defendant put on a condom. However, a report of the Sexual Assault Response Team ("SART") stated that L.W. informed the examining nurse that defendant wore a condom. L.W. was not certain whether defendant had penetrated her vagina. When defendant stopped, "[h]e opened the door [of the bedroom] and said, 'Get the F out of my house.'" L.W. put on her clothing and left the room.

When L.W. left the room, her two friends were no longer in defendant's house. L.W. fled from defendant's house, and asked several persons who were congregated outside if they knew where her two friends went. L.W. did not cry or inform the people outside about the alleged rape. After the people outside the house responded that they did not know where the other girls went, L.W. returned to M.H.'s house and spoke with another friend and a friend's mother. L.W. did not inform them at that time of the alleged rape.

L.W. changed her clothing into pajama pants, but did not shower. Then L.W. went into M.H.'s bedroom and laid down for twenty minutes until her two friends entered the room. L.W. did not inform the girls what had happened, and they all went to sleep.

The next morning, May 26, L.W.'s father picked her up at M.H.'s house and brought her to the police station. At trial, Officer Steve Jones, a police officer in Millville, testified that L.W. came to his office at the police station with her father and his wife. L.W. informed Officer Jones of the details of the alleged rape, a description of the defendant, and the location of defendant's house. While at the police station, Officer Jones also spoke with L.W.'s father, and her father alleged that his daughter had been raped. Officer Jones did not instruct L.W. to go to a hospital for an examination, because, as he explained in his testimony, he "wasn't too familiar" at that time with the proper procedures.

After L.W. gave a statement to Officer Jones, she went home. The officer went to defendant's house but he was unable to locate him. Eventually, nearly a year after the episode with L.W., defendant was arrested, and charged with various crimes, including sexual assault and the endangerment of a child's welfare.

As part of its trial proofs, the prosecution called Christina Swain, a registered nurse at Newcomb Medical Center ("NMC"), to testify regarding the exam she performed on L.W. The court qualified Swain as an expert witness under N.J.R.E. 702, without objection by defense counsel, based upon her knowledge, skill, experience, training and education.

Swain explained the SART team procedures for dealing with an alleged sexual assault victim. The SART team consists of a nurse examiner, rape care advocate, and a police officer. After the SART team receives a call, the team arrives at NMC, registers the victim, and brings the victim to a private room. Then, Swain obtains consent from the victim or the victim's parent, and explains the procedure to the victim. Next, Swain informs the victim that if she develops pain or discomfort during the physical or vaginal exam, she can stop the exam. Swain also notifies the victim that she will receive medication after the exam, and advises the victim to schedule a follow-up appointment.

Swain was the on-call sexual assault nurse examiner ("SANE") for NMC on May 29, 2002 when the SART team was activated, four days after the May 25, 2002 episode. Swain reported to NMC and was requested to examine L.W. On May 29, Swain met with L.W., L.W.'s father, the rape care advocate, and the police officer. Swain obtained L.W.'s father's consent to perform the examination.

During her May 29 examination of L.W., Swain completed a sexual assault examination report to document her findings. Swain, L.W., and the rape care advocate were the only individuals present during the examination. According to Swain, L.W. informed her that "the suspect's penis contacted her vaginal area and also entered her vagina." Swain also testified that L.W. had, in fact, told her that defendant wore a condom. Next, Swain asked L.W. about her activities after the incident. L.W. informed Swain that she had urinated, defecated, ate, drank, bathed, showered, brushed her teeth, and changed clothing.

Swain performed several procedures during the physical examination. She conducted an oral swab by placing two Q-tips in L.W.'s mouth. Swain also performed a head hair combing, where she looked for "any foreign materials, fibers, [or] anything that's not normal." Swain performed a head-to-toe assessment of the skin surface to locate any injuries, and she did not find any injuries. According to Swain, "[t]here was no bruising, abrasions, or lacerations . . . [and] [t]here were no bite marks."

Because L.W. had changed her clothing since the assault had occurred three days earlier, Swain did not collect L.W.'s clothing, as is the normal procedure. Swain also checked L.W.'s fingernails for evidence of blood, but did not find anything. Because L.W. had showered between the assault and the examination, Swain did not perform a pubic hair combing.

Swain next performed a vaginal exam, in which the nurse placed L.W. in a lithotomy position, where her legs were placed in stirrups. The exam revealed to Swain that L.W. "had ecchymosis on the inner portion of her vagina and also a small abrasion on the outer portion of her vagina." As defined by Swain, ecchymosis is a "little blood blister underneath the skin where the capillaries rupture, but the skin's still intact[.]" Swain also noted "a small abrasion on the lower part of her vagina at the 6:00 position," that was an external injury. Swain defined "abrasion" in her testimony as "a break in the skin from blunt force trauma." Swain also attempted to collect a specimen from L.W.'s vagina using Q-tips. Finally, Swain obtained the vaginal, cervical swabs and performed a DNA sample.

Based on her experience and her evaluation of L.W., Swain opined that blunt force trauma caused L.W.'s injuries. Swain explained that "normally a female is relaxed during intercourse and when a person is under stress, the muscles tighten and that's when the blunt force trauma occurs [be]cause the entry is difficult." Swain further explained that "when the penis enters the vagina in normal relaxation the muscles are relaxed. During a sexual encounter when somebody does not want to have sex, the muscles tense up and then everything is tight."

After the examination, Swain notified an emergency room ("ER") physician of her findings. Swain and the ER physician participated in creating the ER report. On the ER report, the physician drew a diagram of the vaginal area and noted abrasions in "both areas." In contrast, Swain had found abrasions in one area and ecchymosis in the other area.

Defendant did not testify at trial. He did not call any witnesses.

On January 15, 2004, the jury found defendant guilty on both counts of the indictment. In April 2004, the trial court sentenced defendant to ten years in prison, with a parole ineligibility term of five years, plus various conditions under Megan's Law. As we already have noted, defendant's conviction was sustained by this court on direct appeal in 2005. After the Supreme Court denied certification and defendant was resentenced, defendant filed a PCR petition with the trial court in December 2006.

The general theme of defendant's PCR application is that his trial attorney deprived him of the effective assistance of counsel. More specifically, defendant contends that his trial counsel was deficient in (1) failing to persuade the trial court to exclude "fresh complaint" hearsay statements of L.W. described in Officer Jones's testimony; (2) not requesting a limiting instruction to the jury with respect to the fresh-complaint evidence; (3) failing to prepare adequately to cross-examine or rebut Nurse Swain's expert testimony; (4) not objecting to the ER physician's hearsay statements mentioned during Swain's testimony; and (5) introducing irrelevant issues about the victim's possible consent and the respective races of the victim and her attacker. Defendant further argues that his attorney on direct appeal was likewise ineffective in not raising a number of these issues on direct appeal.

In connection with his PCR application, defendant obtained an evaluation of the case and of Nurse Swain's testimony by another sexual assault expert, Kathleen Brown, Ph.D. Dr. Brown is an assistant professor at the School of Nursing of the University of Pennsylvania. As we will describe, infra, Dr. Brown raised several questions respecting Nurse Swain's findings in this case.

The judge who heard the PCR application, Judge Richard Geiger,2 conducted evidentiary hearings on two dates to address more fully the issues relating to Swain's trial testimony. On May 8, 2009, the PCR judge heard additional testimony from Swain, which addressed several of the points raised in Dr. Brown's report about Swain's prior trial testimony. Thereafter, on December 11, 2009, the PCR judge heard testimony from Dr. Brown.

We first summarize the main points presented by Dr. Brown, whose credentials as an expert are not challenged by the State. In general, Dr. Brown disputed Swain's assessment that the injuries to the victim were caused by blunt force trauma. Dr. Brown opined that there is no "research-based" manner in which to test the expert nurse's premise that a female victim's muscles are more relaxed during consensual sexual intercourse as opposed to non-consensual intercourse. Dr. Brown further asserted that the minimal external abrasion found on L.W. by the ER physician would not likely be present four days after a sexual assault. She noted that such an abrasion could have been caused by other reasons, such as consensual sex, certain types of underwear garments, or bicycle-riding. Dr. Brown added that ecchymosis is not always caused by non-consensual sex and can result from consensual sex as well. Dr. Brown also disputed Swain's finding that one of L.W.'s injuries was to the internal area of her vagina, and instead opined that both injuries were external.

In her amplified testimony at the PCR hearing, Swain essentially reiterated the key opinions that she had presented at trial. The nurse maintained her belief that the cause of L.W.'s vaginal injuries was blunt force trauma, although she acknowledged that other potential causes may produce such injuries. Swain also addressed the discrepancy between her finding that L.W. had sustained both an abrasion injury and an ecchymosis injury and the ER physician's finding of only two abrasions. She explained that she had examined L.W. for three hours, and performed a half-hour pelvic exam where she examined the cervix and vaginal walls. In contrast, the ER physician only examined L.W. for between five and ten minutes. Further, the physician did not perform an internal examination, and thus he only saw the external abrasions and did not have an opportunity to see the internal ecchymosis.

Nurse Swain also testified at the PCR hearing regarding the length of time that a vaginal injury takes to heal. She stated that an injury to the internal portion of the vagina in the mucous membrane would customarily take three or four days to heal. Further, there would be no evidence of such an injury after four or five days.

After considering this additional expert testimony, as well as the legal arguments of counsel, Judge Geiger rejected defendant's PCR application. In a detailed bench ruling, the judge explained why none of the grounds offered by defendant entitled him to relief, and that defendant had failed to meet his evidential burden under either of the performance or prejudice prongs of the Strickland/Fritz3 test. Among other things, the judge was not persuaded that the expert testimony adduced from Dr. Brown, in light of the amplified testimony presented by Nurse Swain, showed that defendant's trial attorney was ineffective.

Defendant now appeals the dismissal of his PCR petition. He raises the following points for our consideration:

POINT I

 

THE PCR COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO ESTABLISH INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS 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 ERRED IN HOLDING THAT PATROLMAN JONES'S TESTIMONY WAS ADMISSIBLE UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE.

 

POINT III

 

THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF, AS DEFENSE COUNSEL'S FAILURE TO REQUEST AN INSTRUCTION TO THE JURY ON THE LIMITED ADMISSIBILITY OF FRESH COMPLAINT EVIDENCE VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT IV

 

THE PCR COURT ERRED IN HOLDING THAT THE HEARSAY STATEMENT OF L.W.'S FATHER IMPROPERLY ADMITTED INTO EVIDENCE THROUGH THE TESTIMONY OF PATROLMAN JONES WAS NOT PREJUDICIAL.

 

POINT V

 

THE PCR COURT ERRED IN HOLDING THAT DEFENSE COUNSEL'S FAILURE TO PREPARE FOR THE STATE'S S.A.N.E. EXPERT OR TO PRESENT AN EXPERT WITNESS FOR THE DEFENSE WAS NOT PREJUDICIAL.

 

POINT VI

 

THE PCR COURT ERRED IN HOLDING THAT THE HEARSAY STATEMENTS OF THE E.R. PHYSICIAN WERE NOT PREJUDICIAL.

 

POINT VII

 

THE PCR COURT ERRED IN HOLDING THAT DEFENSE COUNSEL'S INTRODUCTION OF THE ISSUES OF CONSENT AND RACE TO THE TRIAL WAS NOT PREJUDICIAL.

 

POINT VIII

 

THE PCR COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO ESTABLISH A CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

POINT IX

 

THE PCR COURT ERRED IN HOLDING THAT THE CUMULATIVE EFFECT OF TRIAL AND APPELLATE COUNSEL'S ERRORS DID NOT CAUSE PREJUDICE TO DEFENDANT.

 

Having considered these arguments, we affirm the trial court's order of February 1, 2010 dismissing defendant's PCR application, substantially for the cogent reasons set forth in Judge Geiger's bench opinion of that same date. We add only a few comments.

First, we discern no evidentiary error, and no ineffectiveness by defendant's former counsel, with respect to the fresh-complaint testimony elicited from Officer Jones. See N.J.R.E. 803(c)(2); State v. Hill, 121 N.J. 150, 163-66 (1990) (explaining the fresh complaint rule). The officer only related to the jury limited information that L.W. had provided to him, such as when and where the incident occurred and a description of her attacker. Much of that information was presented to the jury in L.W.'s own trial testimony. As a police officer, Jones qualified as a natural confidant to whom a victim would report the details of a sexual assault, and seek comfort or protection. See State v. Cherry, 154 N.J. Super. 157, 163-64 (App. Div. 1977) (affirming trial court's admission of a police officer's testimony concerning a victim's fresh complaint), certif. denied, 75 N.J. 604 (1978); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2), at 787 (2011) (noting that "[s]omeone in a position of authority, such as a police officer," may qualify as a natural confidant). The victim spoke to Officer Jones on the day after the incident, and there is no proof that he coerced her.

Likewise, defendant has not shown actual prejudice for the failure of his attorney to demand a limiting instruction, which would have reminded the jury of the fresh complaint testimony and could have been reasonably eschewed for strategic reasons. See State v. Krivacska, 341 N.J. Super. 1, 43-44 (App. Div.) (noting that counsel's failure to request a limiting instruction can be a "well reasoned strategic determination"), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). There is no basis in the record to presume that the omission of the instruction here was harmful, particularly given L.W.'s detailed trial testimony recounting her attack.

Second, we sustain Judge Geiger's ruling that the Strickland/Fritz standards were not violated because of a passing reference during Officer Jones's testimony that L.W.'s father had reported to the officer that his daughter had been "raped." Although, as Judge Geiger correctly noted, that particular statement was hearsay, the failure of trial counsel to move to have it stricken was inconsequential.

Third, we concur with Judge Geiger that defendant has failed to establish that he was convicted because his trial counsel did not cross-examine Swain more effectively or present competing expert testimony. On cross-examination, defendant's trial counsel highlighted differences between the nurse's findings and the ER physician's findings. Trial counsel also obtained testimony from Swain regarding the possibility that other sources could have caused L.W.'s injuries besides sexual assault, and elicited testimony concerning the limitations of her findings.

We similarly adopt Judge Geiger's conclusion that defense counsel was not necessarily deficient in failing to retain an opposing expert such as Dr. Brown. Although Dr. Brown's credentials are indisputably impressive and her testimony at the PCR hearing supported some of defendant's contentions, it is speculative to conclude that her opinions would have changed the result at trial. Indeed, on a number of points Dr. Brown agreed with Swain, and her contrary opinions themselves could be reasonably disbelieved or discounted by the triers of fact. The decision to call or not to call such an expert falls within the realm of permissible trial strategy, and does not compel a finding of the deprivation of the effective assistance of counsel.

"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.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "'[A]n 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.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314). Indeed, as to the matters on which Dr. Brown acknowledged some room for expert disagreement during her cross-examination, the presentation of her testimony at trial may have backfired and worked to defendant's ultimate disadvantage.

We also find no basis for relief to defendant emanating from Nurse Swain's references to certain facts and dates concerning the ER physician's findings that were not otherwise part of the trial evidence. The discrepancies between some of the ER physician's findings and those of Swain became fodder for cross-examination by defense counsel, and may well have been helpful to defendant's efforts to undermine the nurse's credibility.

Lastly, we find no merit in defendant's claim that trial counsel's brief allusion to L.W.'s alleged curiosity about African-American males deprived him of the effective assistance of counsel. Counsel's questioning along this improvident line of inquiry was promptly withdrawn after an objection, and the topic was not revisited in summations. No actual prejudice was caused by this fleeting reference.

In sum, we agree with the trial court that neither the performance of defendant's trial attorney, nor his counsel on direct appeal, warrants relief from the judgment. The dismissal of his PCR application is consequently affirmed.

Affirmed.

 

 

 

1 Under the two-part test a defendant must demonstrate: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced defendant. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

2 A different judge had presided over the trial.

3 See State v. Fritz, 105 N.J. 42, 53-58 (1987) (adopting the Strickland test in New Jersey).