STATE OF NEW JERSEY v. FREDERICK BRITTON

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NOT FOR PUBLICATION WITHOUT THE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.

FREDERICK BRITTON,

Defendant-Appellant.

_____________________________________________________

September 16, 2014

Submitted May 13, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-05-1036.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Frederick Britton appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Following a jury trial, defendant was convicted of first-degree aggravated sexual assault of a seven-year old boy, K.M., and related offenses. See State v. Britton, No. A-3970-06, (App. Div. Feb. 18, 2010)(slip op. at 2). Defendant specifically asserted on direct appeal that trial counsel provided ineffective assistance by failing to call him as a witness, and by failing to adequately explain that he had a constitutional right to testify. Id. at 9. We preserved that claim of ineffective assistance of counsel for PCR. Id. at 11. We affirmed defendant's conviction, id. at 13, and the Supreme Court denied his petition for certification. 203 N.J. 440 (2010).

Defendant subsequently filed a pro se petition for PCR in which he alleged among other things that trial counsel provided ineffective assistance because she failed to call him as a witness. In his certification, defendant asserted that K.M.'s mother, M.M., one of the State's main witnesses at trial, was actually his "fiancée." Defendant also stated that M.M. was addicted to "crack" and threatened on numerous occasions to have him "lock[ed]-up" if he did not give her money. Additionally, defendant claimed M.M. had previously alleged that her former boyfriend had sexually assaulted K.M., causing defendant to "almost [have] a fight" with the man. Defendant certified that he told trial counsel of these facts and his desire to testify about them at trial.

PCR counsel filed an extensive brief that raised numerous claims of ineffective assistance of trial counsel, including her failure to "advise petitioner that it was his right to decide whether or not to testify." At oral argument, PCR counsel contended defendant's certification demonstrated that he wished to testify in his own defense, did not know that he had the right to testify, and that trial counsel "made the decision for him . . . ." PCR counsel specifically argued that an evidentiary hearing was necessary to obtain "trial counsel's testimony."

In a thoughtful and comprehensive opinion that followed oral argument, the PCR judge, who was not the trial judge, addressed all of defendant's claims of ineffective assistance of counsel. He entered an order denying the petition, and this appeal followed.

Before us, defendant primarily claims that he was entitled to an evidentiary hearing because he demonstrated a prima facie case of ineffective assistance of trial counsel in two respects: counsel failed to adequately conduct a pre-trial investigation and failed to advise him of his right to testify. Having considered the arguments in light of the record and applicable legal standards, we reverse and remand the matter for an evidentiary hearing limited solely to this latter claim.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" 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). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Both prongs of the Strickland/Fritz test apply to a defendant's claim of ineffective assistance of trial counsel regarding the exercise of his constitutional right to testify at trial. State v. Bey, 161 N.J. 233, 271-72 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "To establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b); see also State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (same). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant's claim of inadequate pre-trial investigation is two-fold. He asserts that carpeting from his mother's house should have been subjected to DNA testing because the victim alleged defendant had smeared his semen upon the carpet after the sexual assault. Defendant also claims that trial counsel should have hired an expert to physically examine K.M. As to both, the PCR petition was supported by a certification from defendant's mother in which she asserted that she told trial counsel she would pay any expert expenses.

The PCR judge found these contentions lacked sufficient merit to warrant relief, and we agree. We note that during oral argument, PCR counsel essentially conceded he had "looked into" the claim regarding exculpatory DNA evidence and concluded that he could not demonstrate prejudice under the second Strickland/Fritz prong. We do not address these claims any further. R. 2:11-3(e)(2).

We reach a different conclusion, however, regarding defendant's claim that trial counsel provided ineffective assistance by inadequately advising him of his right to testify and the risks or rewards of his decision. We digress to provide some context from the trial proceedings.

K.M., M.M., a detective who took a statement from K.M. and Dr. Marita Lind were the State's witnesses in its case in chief. It suffices to say that much of M.M.'s testimony centered on the statements K.M. made to her regarding the sexual assault, and defendant's reactions when M.M. confronted him with the accusation. There was no forensic evidence. Dr. Lind, a pediatrician who specialized in the diagnosis and treatment of abused and neglected children, testified about her examination of K.M. and the statements he made to her during that examination; however, on cross-examination, Dr. Lind acknowledged that she observed "no visible sequella to the sexual contact," and she "didn't see any abrasions or lesions that were indicative of sexual assault."

Defendant's mother and Valincia Terrell, a friend of M.M., testified as defense witnesses. Before recessing for the weekend, defense counsel advised the judge that she intended to call one more witness, defendant. When proceedings commenced on the following Monday, defense counsel indicated that "the defense is prepared to rest at this time." She gave no explanation for the change, and the judge never inquired of defendant regarding his election not to testify.1

After the State's rebuttal witnesses testified, the judge asked whether defendant wished him to give an instruction regarding his election not to testify. See Model Jury Charge (Criminal), "Defendant's Election Not to Testify," (Revised 5/4/09).2 Defendant responded in the affirmative, and the judge gave the charge as part of his final instructions.

Regarding the assertion that trial counsel misadvised defendant of his right to testify, the PCR judge concluded that defendant had "admitted that he waived his rights to testify," further noting that defendant "offered no specific facts which show that he did not voluntarily decide not to testify." In rejecting defendant's argument, the PCR judge reasoned:

[T]here is a strong presumption that counsel acted professionally and responsibly. Defendant has signed a [c]ertification that he had expressed a desire to testify at trial and was not fully explained the advantage or risks of not doing so by trial counsel. However, aside from this [c]ertification, [d]efendant provided no other evidence or indication that trial [c]ounsel had not discussed the risks and benefits of testifying.

It is axiomatic that criminal defendants have a constitutional right to testify on their own behalf, and the choice whether to testify or not rests solely with the defendant. Bey, supra, 161 N.J. at 269. "Defense counsel must inform defendants of their right to testify. Counsel may not merely rely on their own trial strategy." Id. at 269-70. As the Court has explained,

[I]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages or [sic] doing so or not doing so . . . To ensure that counsel meets that obligation, it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant . . . of his or her right to testify. This will best ensure that defendant's constitutional rights are fully protected. Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel.

[State v. Savage, 120 N.J. 594, 630-31 (1990) (citation omitted).]

In this case, the PCR judge concluded that defendant's claim that trial counsel rendered ineffective assistance regarding the decision whether or not to testify was unsupported by any evidence except defendant's own certification. Certainly, had the trial judge made inquiry of defendant on the record as to whether defendant had the benefit of counsel's advice regarding his decision, and whether it was indeed his decision (as opposed to his lawyer's) that he not testify, the certification filed in this case would be nothing more than a bald assertion of ineffective assistance and would not entitle defendant to an evidentiary hearing. See, e.g., State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

However, having failed to employ the "better practice" and inquire on the record as to defendant's personal decision not to testify, we have only one other potential source of evidence regarding the entire issue, i.e., trial counsel's testimony. Moreover, since trial counsel's abrupt change of strategy is otherwise unexplained, her testimony strikes us as particularly critical.

Under the unusual circumstances presented, we conclude that defendant is entitled to a hearing on his petition to adduce all available evidence regarding his decision not to testify at trial. Obviously, trial counsel may be called as a witness. In remanding the matter for such a hearing, we express no opinion about the outcome. We note, for example, that defendant did not expressly assert in his certification that he would have denied his guilt if called as a witness at trial.3 We also note defendant failed to certify that he was unaware of his right to testify on his own behalf.

Exercising an abundance of caution, we reverse the order denying defendant an evidentiary hearing on his PCR petition only as to this specific claim. We remand the matter to the Law Division to conduct such a hearing.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We note from the transcript that defendant may have been indicted for assaults upon other victims, but that those counts were severed for trial. We further note that at sentencing, trial counsel stated this was defendant's first conviction, and he had "never been in trouble ever before." The trial judge, however, noted that defendant had "a juvenile record of significance." The appellate record does not contain copies of the indictment, defendant's pre-sentence investigative report or the judgment of conviction. Because there was no discussion of whether or why defendant chose at the last minute not to testify, we cannot discern if any of these facts played a role in the decision, except to say defendant would not have been impeached by any prior criminal convictions. See N.J.R.E. 609.

2 Defendant's trial took place prior to the current iteration of the charge.

3 At sentencing, it was noted that defendant refused to cooperate with evaluators at the Adult Diagnostic and Treatment Center, claiming that he was innocent.