STATE OF NEW JERSEY v. GERALD POHIDA

RECORD IMPOUNDED



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


GERALD POHIDA,


Defendant-Appellant.

______________________________________________


September 30, 2013


Submitted May 29, 2013 Decided


Before Judges Harris and Hayden.


On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No. 04-04-0497.


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


Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).


Appellant filed a pro se supplemental brief.


PER CURIAM

Defendant Gerald Pohida appeals from the January 5, 2012 Law Division order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). Defendant contends that his trial and appellate counsel were ineffective in representing him, resulting in prejudice to his defense. Having considered defendant's arguments in light of the record and controlling law, we conclude that defendant has presented a prima facie case concerning the voluntariness of his confession after his counsel allegedly instructed the police not to interrogate him. Accordingly, we reverse and remand to the Law Division for an evidentiary hearing solely on the issue of ineffective assistance of counsel due to counsel's failure to raise this issue at the suppression hearing.

A grand jury returned an eight-count indictment against defendant for events occurring from June to October 2003. Specifically, defendant was charged with two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a).

The indictment was based on allegations of sexual activities between defendant, then forty-one years old, and a thirteen-year-old girl, L.M., whom he had met via the internet. Defendant requested to meet L.M.'s friends, which resulted in sexual activities between defendant and A.S., a twelve-year-old girl. Defendant also arranged a three-way sexual encounter with L.M., defendant, and another man.

After an eight-day trial, the jury found defendant guilty on all charges. The judge sentenced defendant to an aggregate thirty-year term with a twenty-five year period of parole ineligibility to be served consecutively to an unrelated sentence. Defendant filed a motion for a new trial, which the judge denied on June 14, 2006.

Defendant appealed and raised the following arguments:

POINT I: DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT SHOULD HAVE BEEN GRANTED, BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS REQUEST FOR COUNSEL.


A. If Defendant asserted his right to counsel as described by Kerri Pohida, his statement must be suppressed.

B. The trial court initially found Mrs. Pohida credible, a finding entitled to deference.


POINT II: THE TRIAL COURT ERRED IN FINDING, AFTER THE MICHAELS[1] HEARING, THAT L.M.'S TESTIMONY WAS UNTAINTED BY THE POLICE INTERROGATION.

POINT III: THE STATE'S REPEATED IMPROPER COMMENTS ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION IN OPENING STATEMENT AND CROSS-EXAMINATION, IN THE FACE OF OBJECTIONS BY COUNSEL AND ADMONISHMENTS BY THE TRIAL COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL, AND WERE INCURABLE BY THE COURT'S INSTRUCTIONS.

POINT IV: THE STATE'S INFLAMMATORY ARGUMENTS IN SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT, AND DEPRIVED DEFENDANT OF A FAIR TRIAL.


A. The Prosecutor unfairly maligned defense counsel.

B. The Prosecutor improperly vouched for witnesses.

C. The [P]rosecutor misstated the facts.


POINT V: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY DENYING HIM THE OPPORTUNITY TO PRESENT MEDICAL RECORDS CORROBORATING HIS DEFENSE, AFTER THE STATE OPENED THE DOOR BY IMPLYING THAT THE RECORDS DID NOT EXIST.

POINT VI: THE TRIAL COURT DID NOT ADEQUATELY RESPOND TO THE PROBLEM OF SLEEPING JURORS, COSTING DEFENDANT A FAIR TRIAL.

POINT VII: THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL, BY EXCLUDING HIM FROM THE COURTROOM DURING AN ARGUMENT ABOUT THE USE OF POTENTIAL EVIDENCE.

POINT VIII: THE ERRORS OF THE TRIAL COURT AND THE STATE CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL.


Defendant filed a pro se supplemental brief in which he raised the following arguments:


POINT I: THE PROSECUTOR'S EGREGIOUS AND CUMULATIVE MISCONDUCT PRIOR TO AND THROUGHOUT TRIAL WAS CLEARLY AND UNMISTAKENLY, IMPROPER BECAUSE SAID MISCONDUCT SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND CONSTITUTED REVERSIBLE ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10.


a. In her opening, cross-examination of the defendant, and summation, the prosecutor engaged in repeated and cumulative misconduct impinging upon defendant's right to remain silent, thereby constituting reversible error.

b. The prosecutor engaged in further misconduct by enhancing the credibility of the state's case by personally vouching for her witnesses' credibility.

c. The prosecutor misstated facts in her opening and summation that clearly had the capacity to mislead and inflame the jury, bringing about an unjust result.


POINT II: THE COURT DEPRIVED THE DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND CONFRONTATION, AND SAID DEPRIVATION CONSTITUTED REVERSIBLE ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, PARAS. 1, 10.

a. The court committed reversible error when it failed to inquire as to the condition of sleeping jurors.

b. The court committed reversible error when it made an ex-parte communication with the deliberating jury, who were required to stay past 9:00 p.m. Friday evening.

c. Reversible error was committed when the court denied defendant's request to suppress L.M.'s statement pursuant to State v. Michaels.


We rejected those arguments and affirmed defendant's conviction and sentence. State v. Pohida, No. A-6266-05 (App. Div. Feb. 19, 2009). The Supreme Court denied defendant's petition for certification. State v. Pohida, 199 N.J. 133 (2009).

On September 15, 2009, defendant filed a verified petition for PCR. In his pro se petition, defendant asserted that his counsel was ineffective for failing to request appropriate lesser-included offenses, object to improper remarks made by the prosecutor in summation, object to improper jury instructions, call and prepare witnesses, investigate witnesses, investigate alternative defenses, and meaningfully challenge the prosecutor's case.

Defendant's counsel filed a brief in support of the petition, raising the following contentions:

POINT I: THE PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.


A. Trial Counsel Failed to Move to Suppress the Petitioner's Statement Based on Preceding Counsel's Ignored Request to Cease the Interrogation of the Petitioner.


B. Trial and Appellate Counsel Failed to Request Suppression of Detective Fitzsimmons' Testimony and Police Reports Due to the Destruction of Investigative Notes.


C. Trial Counsel Failed to Adequately Consult with the Petitioner and his General Failure to Engage in a Pre Trial Investigation Constituted Deficient Performance which Prejudiced the Defendant.


D. Trial Counsel Failed to Adequately Prepare the Petitioner for his Testimony at Trial.


1. Trial Counsel only Briefly Prepared the Petitioner for the Witness Stand which Resulted in Diminished Credibility in Front of the Jury.


2. Trial Counsel Failed to Zealously Argue for an Adjournment of Trial until the Petitioner Recovered from a Painful Injury the Day Before the State Conducted Cross Examination.






E. Trial Counsel Failed to Object to Prosecutorial Misconduct During the State's Summation.


F. Trial Counsel Did not Timely Object to Sleeping Jurors and Ensure that the Court Properly Instruct Jurors to Remain Attentive Throughout the Trial.


G. Trial Counsel Failed to Object to Late Evening Jury Deliberations and to the Trial Judge's Ex Parte Communication with the Jury.


POINT II: THIS COURT SHOULD RECONSIDER THE TRIAL COURT'S DECISIONS BASED ON THE GRAVITY OF THE CONSTITUTIONAL ERRORS MADE.


A. The Trial Court Erred in Denying the Suppression of Petitioner's Statement to the Police.


B. The Trial Court Erred in Denying Petitioner's Motion to Suppress L.M.'s Statement Pursuant to State v. Michaels.


C. The Trial Court Failed to Properly Address the Issue of Sleeping Jurors.


D. The Trial Court Improperly Set Time Limits on Jury Deliberations and Made an Ex Parte Communication with the Jury and Caused a Coerced Verdict to be Rendered.


Defendant requested an evidentiary hearing on his claims.

During argument on the petition, defense counsel highlighted the "most glaring issue," the continued interrogation of defendant after the police were called by defendant's then-attorney. Defendant's counsel at that time certified that he had called the police station to say that he was on his way to the station and that any questioning of defendant should cease. Defendant relied on State v. Reed, 133 N.J. 237 (1993), for the proposition that a defendant's rights are violated when questioned after the police are informed of his representation. Counsel further argued that a violation of defendant's constitutional rights cannot be deemed harmless error, citing State v. McCloskey, 90 N.J. 18 (1982). Defendant argued that the Reed issue was completely independent of the Miranda2 issue raised on direct appeal.

The prosecutor contended that all of the issues raised by defendant were procedurally barred as raised, or capable of being raised, on direct appeal. Further, she argued that the certifications defendant provided regarding the Reed issue lacked the specificity required to make a prima facie showing of ineffectiveness.

The judge found the following issues procedurally barred under Rule 3:22-5 as having been previously addressed on direct appeal: (1) the prosecutor's improper comments on summation; (2) the denial of the motion to suppress defendant's statements based on a violation of his Miranda rights; (3) the trial court's denial of the motion to suppress L.M.'s statements pursuant to State v. Michaels; and (4) the late evening jury deliberations and ex parte communications by the judge.

In relation to the voluntariness of defendant's statement under Reed, the judge found that the additional certifications defendant provided concerning his attorney's call and trip to the police station were "vague, conclusory and speculative[.]" The judge determined that the information did not warrant an evidentiary hearing because a hearing "would in no way change the impact of that statement upon the decision that was made in the trial court by the jury or the appellate court's evaluation of that Miranda episode that is alluded to by defendant."

The judge also rejected defendant's other ineffective assistance of counsel claims because defendant did not show that his counsel's performance was deficient or that any deficit prejudiced defendant's case. As to counsel's failure to object to the police having destroyed their notes, the judge determined that the claim lacked merit because State v. W.B., 205 N.J. 588, 608-09 (2011), which mandated retention of police notes for the first time, was not implemented until after defendant's direct appeal. In finding no deficiency in counsel's alleged failure to request lesser included charges, the judge noted that defendant neither suggested any lesser included charges nor pointed to facts in the record that supported such charges.

Additionally, addressing counsel's claimed failure to prepare defendant for trial or request an adjournment when defendant was injured just before his testimony, the judge observed that defendant underwent voir dire before his testimony and established that he had an opportunity to prepare and it was his decision to testify. Concerning counsel's failure to investigate potential witnesses, specifically, a witness who would have testified regarding defendant's ailment making ejaculation painful, the judge held that there was no certification from any of the potential witnesses, testimony about his medical condition had been heard by the jury, and there was "no reasonable likelihood that this testimony would have influenced the outcome of the jury verdict" in light of the other evidence presented.

The judge denied defendant's PCR petition on January 5, 2012, without an evidentiary hearing. This appeal followed.

On appeal, defendant submits the following arguments:

POINT I: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-5.


POINT II: DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL.


POINT III: DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.


We begin with a review of the well-established legal principles that guide our analysis. Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997) (citation omitted). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

Ineffective-assistance-of-counsel claims must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel and "that the deficient performance prejudiced the defense." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are not enough. Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record an evidentiary hearing should be held." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." Preciose, supra, 129 N.J. at 459. However, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5. See ibid.

After a careful review of the record, we conclude that defendant has demonstrated a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing based on defendant's argument and supporting certifications that his counsel was deficient for failing to move to suppress his statement based on Reed, supra, 133 N.J. 237.

First, defendant's claim is not barred by Rule 3:22-4 or Rule 3:22-5 as the Reed issue is separate and distinct from the Miranda issue raised on direct appeal. On direct appeal, defendant's argument centered around a Miranda violation based on his alleged request for counsel upon his initial detainment. The present issue relates to the police failing to cease interrogation upon being contacted by defendant's counsel.

Second, defendant's claim is not a "bald assertion," nor is it "too vague, conclusory, or speculative." Marshall, supra, 148 N.J. at 158; Cummings, supra, 321 N.J. Super. at 170. Defendant contends, through certifications of defendant's father and his attorney at the time, Michael Campagna, Esq., that shortly after his arrest, defendant's father and counsel proceeded to the police station together. En route, counsel called the station and informed them that he represented defendant, he was on his way to the station, and all questioning must cease. Upon arrival, defendant's counsel repeated his demand to cease interrogation and was made to wait ten to fifteen minutes prior to seeing defendant. The police granted access to defendant when defendant finished his written statement. Defendant contends he was never informed of his counsel's communications or his presence at the station.

Prior to the motion to suppress, Campagna ceased representing defendant in this matter. Defendant's new counsel did not raise the failure of police to cease interrogation upon contact with the prior counsel in the suppression motion.

In Reed, supra, the Supreme Court held that when the police have knowledge of a defendant's representation by counsel and "the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue." 133 N.J. at 261-62. Indeed, "the failure of the police to give the suspect that information renders the suspect's subsequent waiver of the privilege against self-incrimination invalid per se." Id. at 262. "[W]henever the attorney has communicated his presence and desire to confer with the suspect to an agent of the State in a position to contact the interrogating officers, we will impute to those officers knowledge of the attorney's presence and desire to confer with the suspect." Id. at 264.

The State argues that defendant's allegations "state vague, unsubstantiated claims" and fail to demonstrate how the trial outcome would have been affected. We disagree, finding that the two certifications supporting his contentions, taken in the light most favorable to defendant, firmly ground his claim. See Cummings, supra, 321 N.J. Super. at 170. Moreover, it is possible, in light of Reed, that defendant's statement would have been suppressed, the State would not have been able to use his admission of meeting with L.M. against him, and defendant may not have testified. These possibilities, along with the factual contentions, must be explored and resolved in an evidentiary hearing. See State v. Allen, 398 N.J. Super. 247, 257 (App. Div. 2008) ("The issue as framed, in the context of ineffective assistance of counsel, warrants further development, and defendant is entitled to test the assertion in an evidentiaryproceeding.").

We find defendant's remaining arguments without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We agree with the PCR judge that many of defendant's claims are procedurally barred because they were raised on direct appeal. We further agree that, with the exception of the Reed issue, defendant has failed to demonstrate that counsel's performance was deficient or that any deficiency prejudiced defendant's case. See Strickland, supra, 466 U.S. at 677, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

In sum, we conclude that defendant established a prima facie case of ineffective assistance of counsel that could not be resolved on the record before the PCR judge. We therefore reverse the judge's denial of defendant's petition for PCR and remand the matter for an evidentiary hearing solely on the issue of the voluntariness of the confession based upon Reed, supra, 133 N.J. at 261-62.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1 State v. Michaels, 136 N.J. 299 (1994).

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