STATE OF NEW JERSEY v. HEATH DAVIS

NOT FOR PUBLICATION WITHOUT THE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.

HEATH DAVIS,

Defendant-Appellant.

________________________________________________________________

July 17, 2015

Submitted March 16, 2015 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0223.

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

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief without an evidentiary hearing. We affirm.

Defendant was convicted by a jury of second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The sentencing court imposed an aggregate sentence of six years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, Megan's Law restrictions, and parole supervision for life.

Defendant filed a direct appeal in which he presented the following arguments

POINT I

THE TRIAL COURT'S REFERENCE TO DEFENDANT BY MULTIPLE NAMES IN THE PRESENCE OF A JURY ALLOWED THEM TO DRAW A NEGATIVE INFERENCE DEFENDANT USES AN ALIAS AND IT THEREFORE DENIED HIM A FAIR TRIAL.

(Not Raised Below)

POINT II

THE ADMISSION OF PREJUDICIAL HEARSAY IMPERMISSIBLY BOLSTERED THE VICTIM'S CREDIBILITY AND ULTIMATELY DENIED DEFENDANT A RIGHT TO A FAIR TRIAL.

(Not Raised Below)

POINT III

THE VICTIM'S OUT OF COURT HEARSAY STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE AS A FRESH COMPLAINT HEARSAY EXCEPTION.

POINT IV

DEFENDANT'S SENTENCE IS EXCESSIVE AND IS AGAINST THE WEIGHT OF THE APPLICABLE MITIGATING FACTORS, THEREFORE HIS SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING.

(Not Raised Below)

We affirmed his convictions and sentence in an unpublished opinion. State v. Davis, No. A-2212-08 (App. Div. July 13, 2011). The Supreme Court denied his petition for certification on January 13, 2012. ______ N.J. ______ (2015). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

Defendant filed a pro se PCR petition in which he contended he was denied the effective assistance of trial and appellate counsel on multiple grounds and asserted numerous trial errors. A brief and amended petition were submitted on behalf of defendant thereafter. The amended petition identified the issues raised in the pro se petition as follows: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, improper admission of hearsay evidence, improper witness vouching by State, improper comment during opening statement, improper comment during summation, judicial error, failure to properly use aggravating/mitigating circumstances, error in presentence report, and transcript references found to be improper/objectionable. The petition raised an additional ground, that trial counsel was ineffective in failing to investigate or call witnesses who would have supported the defense theory of the case. In the brief submitted on defendant's behalf, the following arguments were presented to the PCR court

POINT I

BECAUSE THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE HE WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS PETITION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAS BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE

POINT II

PETITIONER'S POINTS RAISED IN HIS PRO SE PETITION AND BRIEF DEMONSTRATE THAT HIS PETITION SHOULD BE GRANTED; IN THE ALTERNATIVE, PETITIONER SUBMITS HE HAS SHOWN A PRIMA FACIE BASIS FOR AN EVIDENTIARY HEARING

POINT III

CUMULATIVE ERROR DEPRIVED THE PETITIONER DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. 1. PARS. 1, 9, 10

POINT IV

THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.

The PCR judge denied defendant's petition and set forth his reasons in a twenty-one page written opinion. Defendant presents the following argument in his appeal

THE PCR COURT ERRED IN DENYING MR. DAVIS' PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.

After reviewing defendant's argument in light of the record and applicable legal principles, we conclude it lacks merit.

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). Thus, to be entitled to an evidentiary hearing on a claim of ineffective assistance of counsel, a defendant must present prima facie evidence of both of the two prongs that must be satisfied to be entitled to relief: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 52 (l987). "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 . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, l58 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Defendant argues that the court erred in denying his petition without an evidentiary hearing because he established a prima facie case of ineffective assistance of trial counsel based upon his attorney's alleged failure to investigate or call witnesses who would have supported the defense theory of the case. Specifically, he alleges that trial counsel should have presented testimony from (1) physicians who examined the seven-year-old victim, Z.S., and found no evidence of physical trauma, and (2) character witnesses.

Briefly stated, the incident that gave rise to defendant's arrest occurred in the basement of the church Z.S. attended with his mother and family. Z.S. provided the following account at trial. After coming to church with his mother and cousins, Z.S. went to the bathroom. Defendant came into the bathroom. After Z.S. had finished using the facility and was pulling up his pants, defendant pushed him to the ground. Defendant then unbuckled his own pants and climbed on top of Z.S. Defendant started "humping" Z.S., moving up and down with his penis against Z.S.'s leg. Z.S. stated defendant "kept squeezing" his penis. Then, defendant turned him over, put his penis in between Z.S.'s butt cheeks and "kept slapping [his] butt." After they heard Z.S.'s mother calling to him as she came downstairs, defendant got up off Z.S. and hid in a stall.

Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Under this rule, a defendant asserting a claim of ineffective assistance of counsel in a petition for PCR based on his counsel's failure to produce a witness at trial must present a certification by that witness concerning the testimony the witness would have been prepared to give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends that testimony from examining physicians "that directly contradicted Z.S.'s trial testimony that he was anally penetrated" would have made it likely a jury would have doubted Z.S.'s testimony that defendant "humped" him. Pursuant to Rule 3:22-10(c), he was therefore required to support this claim with a certification from an examining physician that "directly contradicted Z.S.'s trial testimony." His failure to do so precludes a finding that he has presented prima facie evidence of ineffective assistance on this basis.

The other allegation of ineffective assistance of counsel is based upon counsel's failure to call character witnesses on behalf of defendant. Defendant contends that the character witnesses could have "bolstered [defendant's] credibility."

Defendant has provided numerous letters and certifications from potential character witnesses. The certifications uniformly state that, if asked, the witness "would have been willing to testify as to [defendant's] good character and reputation in the community for truthfulness and honesty." The letters speak of specific acts supporting a favorable view of defendant and personal disbelief that the charges against defendant are true. None of the proposed witnesses has any direct knowledge of the incident that was the basis for defendant's conviction. While defendant's involvement in church activities might be given some weight under other circumstances, the fact that the incident here occurred in a church basement while services were ongoing upstairs would substantially dull the import of such testimony. After reading through these certifications and letters, we are satisfied that, even if the witnesses testified at trial, it is unlikely the result of the trial would be different.

Accordingly, we conclude defendant's PCR petition was properly denied without an evidentiary hearing.

Affirmed.