STATE OF NEW JERSEY v. J.I.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3516-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

 

J.I.,

 

Defendant-Appellant.

 

_______________________________________

December 3, 2012

 

Submitted October 3, 2012 - Decided

 

Before Judges Ashrafi and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

03-07-0635.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (David A. Gies, Designated

Counsel, on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

 

J.I., appellant, filed pro se supplemental briefs.

PER CURIAM

Defendant appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other errors in his trial for sexual abuse of his five-year-old daughter. We affirm.

In March 2003, defendant and his wife were living separately. On an occasion when their daughter was watching television with her grandmother and the grandmother chafed at something being shown with sexual content, the girl remarked: "My daddy does that to me." The grandmother questioned her about the remark, and later her mother asked her what she meant. The girl gave details about her father's allegedly sexual conduct with her, using references that indicated some of the incidents had occurred when the family lived in Georgia and others when they were in New Jersey.

The following day, the mother and grandmother took the girl to the police. The police videotaped their interview of the girl about the sexual abuse. In a second videotaped interview in June 2003, the police used pictures of the family's houses in Georgia and New Jersey to determine the location and the approximate time of the incidents.

In July 2003, defendant was indicted on one count each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The indictment alleged that the criminal acts occurred in New Jersey between June 3, 2002, and February 17, 2003.

Defendant was released on bail. Although the conditions of his release required that he have no contact with his daughter, the mother permitted defendant to move back into a new residence in New Jersey to which the family had moved. The mother told her children not to tell anyone that defendant was living with them, and she also concealed defendant's presence in the house from the grandmother.

While the family was thus reunited, defendant and the mother pressured the five-year-old girl to recant her allegations of sexual abuse. The mother repeatedly told the girl she had to say that defendant had not done anything to her "because then we're gonna lose daddy." Eventually, the mother took the girl to the prosecutor's office to give further statements. In another videotaped interview, the girl told detectives that her previous statements had been a lie, that defendant had not done anything to her, and that she had dreamed what she had previously alleged.

Meanwhile, the grandmother had become suspicious that defendant had returned to living with the family. She and an aunt obtained proof to demonstrate to the prosecutor's office that defendant was violating the conditions of his release on bail. They also learned that the mother and defendant were about to move the family back to Georgia. They took the children to the nearest office of the Division of Youth and Family Services (DYFS) and reported the circumstances. As a result of DYFS's involvement, the grandmother obtained custody of the five-year-old girl.

The mother and defendant moved to Georgia. During that time, they spoke to the girl on the telephone and allegedly continued their attempts to have her recant her accusations. After several months, however, the mother had second thoughts about her actions. She returned to New Jersey and told prosecutor's detectives she had lied about the girl recanting. She admitted the girl had consistently maintained defendant's sexually abusive conduct toward her.

During defendant's trial in 2005, the girl, then seven years old, testified about abuse at the hands of defendant. Her testimony covered incidents that had occurred in New Jersey and in Georgia. Defendant objected to testimony about the Georgia incidents as inadmissible under N.J.R.E. 404(b). The trial court admitted the evidence, referring to it as the res gestae of the criminal activity.

The jury found defendant guilty of all three charges. At sentencing, the court merged the sexual assault count with the charge of aggravated sexual assault and sentenced defendant on that count to fifteen years in prison, subject to the No Early Release Act, N.J.S.A.2C:43-7.2. The court sentenced defendant to a consecutive term of seven years in prison for endangering the welfare of a child.

On direct appeal, we affirmed defendant's conviction and sentence.1 State v. J.I., No. A-1297-05 (App. Div. Dec. 18, 2008). The Supreme Court denied his petition for certification. State v. J.I., 199 N.J. 516 (2009).

After exhausting his direct appeals, defendant filed a pro se PCR petition in December 2009. Counsel was appointed to represent him and filed an amended PCR petition. The trial court heard argument on August 27, 2010, and denied the petition the same day by oral decision and order.

On the current appeal before us, defendant has filed five briefs, not all of which are authorized under our Court Rules or by our order. See R. 2:6-11(d) ("No briefs other than those herein specified shall be filed or served without leave of court."). In a brief filed on September 21, 2011, appointed counsel makes the following arguments on behalf of defendant:

POINT I

 

WHERE THE DEFENDANT'S TRIAL STRATEGY DEPENDED UPON THE ACCUSER'S RECANTATION OF THE FACTS, NOT TO PRESENT TO THE JURY ALL RECANTATIONS WITHOUT EXPLANATION AMOUNTS TO CONSTITUTIONAL INEFFECTIVENESS.

 

POINT II

 

AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.

 

POINT III

 

THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF.

Appellate counsel also filed an appropriate Reply Letter-Brief on May 3, 2012.

Defendant filed three pro se briefs. In his "Supplemental Brief of the Defendant" filed on November 30, 2011, he argues:

POINT I

 

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WAS INEFFECTIVE IN NOT ATTACKING CREDIBILITY AND MOTIVES OF [VICTIM'S] MOTHER. APPEAL COUNSEL WAS INEFFECTIVE FOR NOT ADDRESSING THIS ISSUE. TRIAL COUNSEL WAS FURTHER INEFFECTIVE IN HIS OVERALL REPRESENTATION OF DEFENDANT.

 

POINT II

 

THE PROSECUTOR VOUCHED FOR STATE WITNESSES.

 

POINT III

 

TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE STATE TO CALL DR. HEIMAN AS AN EXPERT IN THE FIELD OF CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME.

 

POINT IV

 

COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO CALL EXPERTS IN SEXUAL ABUSE AND CHILD PSYCHOLOGY, BECAUSE OF THE VAGARIES OF ABUSE INDICIA, AND IN HIS INEFFECTIVE CROSS EXAMINATION OF THE STATE'S WITNESSES. FURTHERMORE, CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME AND ITS ALLEGED FIVE COMPONENTS HAS NO SCIENTIFIC VALIDITY AND THEREFORE IT WAS JUDICIAL ERROR TO ALLOW SUCH EXPERT TESTIMONY.

 

POINT V

 

DEFENDANT WAS INDICTED FOR ACTS THAT DID NOT OCCUR IN THE JURISDICTION OF NEW JERSEY.

 

 

 

 

POINT VI

 

TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING TESTIMONY OF ACTS ALLEGED TO HAVE OCCURRED IN ANOTHER JURISDICTION UNDER THE DOCTRINE OF RES GESTAE.

 

In a "Second Pro Se Supplemental Brief" filed on May 14, 2012, defendant argues:

THE ALLEGATIONS OF SEXUAL ABUSE WERE RECANTED BY THE VICTIM.

 

Last, in a "Response Brief of the Defendant" filed on June 5, 2012, defendant argues yet again:

POINT I

 

THE ALLEGATIONS OF SEXUAL ABUSE WERE RECANTED BY THE VICTIM.

 

POINT II

 

THE STATE'S ARGUMENT FOR ITS INCLUSION OF CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME RUNS CONTRARY TO THE RULING OF THE TRIAL JUDGE.

 

We have considered all of defendant's arguments.

We begin with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the test, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Echols, 199 N.J. 344, 359 (2009) ("[T]he challenged error must be so serious as to undermine the court's confidence in defendant's conviction.").

Here, defendant's PCR appellate attorney argues that defense counsel at the trial was ineffective because he produced evidence of only one recantation statement by the victim rather than all three times the girl made statements recanting her accusations of sexual abuse. He also argues that defense counsel did not adequately challenge the credibility of the mother's and the grandmother's testimony at the trial and did not present to the jury a full picture of the hostility of the grandmother toward defendant during the entire period of the marriage.

The PCR court considered these arguments in light of its review of the trial transcripts. The court stated that defense counsel at trial had:

presented a very strong case on defendant's behalf. He not only cross examined the State's witnesses vigorously . . . highlighting inconsistencies in [their] testimony . . . but . . . [he] put forward a case in opposition including hav[ing] defendant himself testify in an attempt to create an alternate theory . . . that defendant was a good father, while the victim was . . . incredible . . . [h]ad prior sexual knowledge, and was coached by a vindictive mother and grandmother.

The court concluded that defense counsel had devised a strategy for the defense and presented it to the jury competently, although ultimately, unsuccessfully.

Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

We agree with the trial court's conclusion that defendant did not satisfy either part of the Strickland test for ineffective assistance of counsel. Although another attorney presenting a defense at trial might have chosen to offer in evidence all three recanting statements of the girl and not just one videotaped recantation, such additional evidence could have diverted the jury's attention to the role of the mother and defendant in causing the girl to recant. As the prosecutor argued in response to the PCR petition, the State had available evidence that the mother and defendant had called the girl on the telephone from Georgia while she remained in New Jersey in the custody of the grandmother. In those telephone calls, they had again threatened that defendant would be taken away from the family, and they enticed the girl with promises of a puppy and a party if she joined them in Georgia. The continuing violation of defendant's bail conditions may have been further highlighted to the jury at trial if more emphasis had been placed on the girl's recantations rather than presenting a measured strategy of evidence tending to show the motivation of the girl, the mother, and the grandmother to fabricate the accusations. Defense counsel attempted a comprehensive attack on inconsistencies in the testimony of all inculpatory witnesses. Part of the defense strategy included testimony by both defendant and his sister recounting the family's hostility toward defendant.

In addition, defense counsel did present evidence on videotape of the girl's recantation, in particular, her statement that her prior accusations were not true but reflected something she had dreamed. Nothing in the record suggests that repeating the same essential recantation a second and third time would have affected the jury's assessment of her credibility and would have changed the jury's verdict.

We also find no error in the trial court's denial of defendant's PCR petition without first holding an evidentiary hearing. An evidentiary hearing may be necessary where matters beyond the trial record must be examined. State v. Preciose, 129 N.J. 451, 462 (1992). We review the PCR court's determination to decide the matter without holding an evidentiary hearing for abuse of discretion. 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). "If 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." Id.at 158 (citations omitted). Here, the existing trial record was sufficient to determine that defense counsel had presented a competent defense without the need to hold an evidentiary hearing.

Finally, the numerous points argued in defendant's several pro se briefs are either repetitions of his appellate attorney's arguments or they refer to matters that were or could have been raised in the trial court or on direct appeal. Such claims are barred in a PCR petition by Rules 3:22-4 and -5. See State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000).

We add that counsel on direct appeal has no duty to raise every non-frivolous argument available to a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983). Appellate counsel must examine the record with a view to selecting the most promising issues for review. Id. at 752, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.

Also, in State v. Rose, 206 N.J. 141, 182 (2011), the Supreme Court "disapprove[d] . . . further use of res gestae to support evidential rulings," but only prospectively. The Court's ruling was not intended to affect the viability of prior convictions in which the trial court used the doctrine of res gestae to justify admission of evidence pertaining to related crimes and wrongs in support of the prosecution's case. We reject defendant's arguments that evidence of his conduct in Georgia was improperly admitted to support his conviction for sexual crimes committed in New Jersey.

Finally, defendant argues in one of his pro se briefs that his trial attorney was ineffective because he did not call experts in child sexual abuse and psychology. Such general allegations do not demonstrate ineffective assistance of counsel. Cf. State v. Jack, 144 N.J. 240, 254 (1996) (prima facie case of ineffective assistance of counsel for failure to present expert testimony requires showing of availability of expert evidence and likelihood that it would change the outcome of the case).

A

ffirmed.

1 In his direct appeal, defendant raised the following points of trial error, as well as challenging his sentence:

Point One

The Trial Court Improperly Admitted Prejudicial Other Crimes Evidence Under The Guise of Res Gestae Testimony; Because It Did So, the Court Also Failed to Give the Appropriate Limiting Instruction.

 

Point Two

Defendant Was Deprived of His Right to a Fair Trial by the Prosecutor's Highly Improper Summation, in which She Vouched for the Credibility of the Victim and Contrasted Her with Defendant, Who Had a "Motive to Lie."

 

Point Three

The Trial Court Deprived Defendant of His Right to a Fair Trial by Failing to Adequately Instruct the Jury on Its Obligation to Find Beyond a Reasonable Doubt That at Least One of the Sexual Assaults Had Occurred in New Jersey.