STATE OF NEW JERSEY v. JEFFREY DRURY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5973-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY DRURY,

Defendant-Appellant.

________________________________________________________________

April 12, 2012

Submitted February 1, 2012 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-07-0898.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Drury appeals from an order dated November 13, 2009, denying his petition for post-conviction relief (PCR). Defendant raises only the issue of ineffective assistance of PCR counsel. We affirm.

Defendant is serving an aggregate sentence of twenty-five years in prison with a mandatory minimum of eighteen and one-half years for charges of sexual assault and carjacking. He was resentenced on December 12, 2008 following a remand by the Supreme Court pursuant to State v. Natale,184 N.J.458 (2005). State v. Drury, 190 N.J. 197 (2007). The circumstances underlying the September 16, 2000 crimes, as well as a list of the crimes for which defendant was convicted after trial, are set forth in the Court's opinion, which we now incorporate by reference. Drury, supra, 190 N.J. at 200-06.

On July 23, 2007, while his direct appeal was pending, defendant filed a PCR application alleging ineffective assistance of trial counsel.1 PCR counsel was appointed and filed a twelve point brief and a supplemental brief listing many instances of purported failures by trial counsel. Specifically, defendant contended that trial counsel failed to: 1) challenge improper jury instructions; 2) perform pre-trial investigation of witnesses; 3) move for a dismissal when Dr. Goode2 did not appear after being served a subpoena; 4) communicate sufficiently with defendant; 5) object to prosecutorial misconduct; 6) sufficiently investigate defenses; 7) file a motion to suppress defendant's statement; 8) subpoena a defense DNA expert; and 9) identify the inconsistencies between the Grand Jury and trial testimony of one of the victims. Defendant also alleged that the trial transcripts were tampered with in that the victim of the aggravated sexual assault had actually stated under oath before the jury that she "did agree to have sex with [defendant]."

In an oral decision on November 13, 2009, the PCR judge determined that defendant failed to substantiate his ineffective-assistance-of-counsel claims and denied his petition. An order memorializing the court's decision was entered that same day. The PCR judge made detailed findings, which are amply supported by the record, and correctly concluded that defendant failed to show either that his trial counsel was ineffective or that he was prejudiced by counsel's allegedly defective performance.

On appeal from the denial of his petition, defendant presents the following argument:

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test.3 Under the first prong, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980); see also State v. Perry, 124 N.J. 128, 153 (1991).

"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, 315 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Additionally, a defendant's dissatisfaction with his or her counsel's exercise of judgment is not sufficient to overturn a conviction based on a claim of ineffectiveness. Id. at 314.

The PCR judge indicated the following at oral argument:

Although your brief is thorough in its treatment of the general principles of law, in many respects I think there's a failure to demonstrate the second prong of Strickland . . .

. . . .

There's an allegation, for example, that defense counsel didn't adequately investigate the case, didn't hire a DNA expert, didn't do this or that, but don't you agree that under the case law it's the obligation of the petitioner to show that the expert that would have been presented would have said X or had there been an investigation, another witness would have been uncovered and this is the witness and here is the certification from that witness. This is what that person would have said.

You don't have the second piece of that and that, I think, is the problem that I would like you to address.

With regard to claims of ineffective assistance of PCR counsel, the Court has stated:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point.

[State v. Webster, 187 N.J. 254, 257 (2006) (quoting State v. Rue, 175 N.J. 1, 18-19 (2002)).]

PCR counsel conceded that it was his obligation to present evidence to substantiate the harm to defendant's case stemming from trial counsel's alleged deficiencies. Counsel also pointed out his obligation under Rue, supra, 175 N.J. at 18-19, to advance every issue his client wanted him to raise.

Defendant claims that PCR counsel's "assertion of grounds which he enumerated but did not substantiate and which he made no attempt to argue affected the outcome" of the PCR hearing and therefore constituted ineffective assistance of PCR counsel. For example, defendant alleges that PCR counsel failed to identify the misleading portion of the trial judge's charge to which defendant's trial counsel failed to object. Defendant does not specify on appeal which jury charges were misleading. Defendant also fails to identify the nature of the prosecutorial misconduct that both trial counsel and PCR counsel should have pointed out to the judge. Defendant criticizes PCR counsel for objecting to Dr. Goode's failure to appear, even though the parties agreed to a stipulation with regard to his testimony. Notably, defendant does not indicate what PCR counsel should have argued on this point.

Defendant similarly fails to explain how a defense DNA expert would have helped to rebut the State's expert's testimony that defendant's semen was found on the clothes of the sexual assault victim, especially in light of defendant's trial testimony that the victim consented to sexual relations with him.

Defendant further contends that PCR counsel's argument concerning the admissibility of an incriminating statement made by defendant lacked the clarity necessary to properly address the issue. Specifically, he asserts that PCR counsel created the impression that trial counsel failed to move to suppress the statement, when in fact a Miranda4 hearing was held on the issue.5 Defendant argues that PCR counsel should have instead objected to appellate counsel's failure to contest the admissibility of the statement on direct appeal. Yet, defendant does not explain how this alleged error deprived him of his due process rights, as the statement would have been admissible during cross-examination of defendant. See State v. Pillar, 359 N.J. Super. 249, 265 (App. Div. 2003) (stating that "a voluntary, though unwarned statement, while inadmissible in the prosecution's case-in-chief, may be used for impeachment of the accused if he testifies.") (citing State v. Burris, 145 N.J. 509, 528-29 (1996)).

Defendant also points out that Annette Moore, the owner of the home where the sexual assault occurred, who was on both parties' witness list but not called as a witness, told the police that the victim came out of the room smiling and therefore should have been called by trial counsel. On appeal defendant argues, "If Ms. Moore is available to testify, it was incumbent on [PCR] counsel to bring her to court." Defendant does not seek to expand the record to prove this witness is available, Rules 2:5-4 and 2:5-5, nor did defendant make a motion for reconsideration, Rule 2:11-6, for that purpose. Defendant presents no convincing arguments as to what PCR counsel could have done differently to secure Moore's in-court testimony that would have resulted in a different outcome.

PCR counsel acknowledged that he understood his obligation to provide a certification to substantiate an allegation if he could obtain such proof. We conclude that he could not obtain the evidence. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists.").

Any other points raised by defendant in support of his claim of ineffective assistance of PCR counsel are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

1 While Rule 3:22-3 prohibits the filing of a PCR while a direct appeal is pending, the State did not object and the matter was not heard by the judge until after the appeal was resolved and defendant resentenced. We therefore do not consider this early filing to be an impediment to our consideration of defendant's appeal of the denial of his PCR application. See State v. Preciose, 129 N.J. 451, 459-61 (1992) (indicating that claims of ineffective assistance of counsel are particularly suited to PCR).

2 At the emergency room of Robert Wood Johnson University Hospital, Dr. Goode performed a pelvic examination on the victim. Although he did not testify at trial, a stipulation of facts concerning the exam was read to the jury.

3 The two-part test set forth in Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 After the Miranda hearing, the trial judge found that defendant has been advised of his rights and voluntarily blurted out the statement, "I did not take anything from the girls. I did not rape anyone. They wanted it."