STATE OF NEW JERSEY v. R. P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6569-01T46569-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R. P.,

Defendant-Appellant.

______________________________________________

 

Submitted: September 20, 2004 - Decided:

Before Judges A. A. Rodr guez and Cuff.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 94-12-2193.

Yvonne Smith Segars, Public Defender, attorney for appellant (Howard B. Kraft, Designated Counsel, of counsel and on the brief).

John Kaye, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant R.P., appeals from the denial of his first petition for post-conviction relief (PCR). Following a jury trial, defendant was convicted of several offenses arising from the sexual abuse of his adopted daughter "Ellen" from 1986 until 1994. The trial proofs are summarized in detail in our decision on direct appeal. The sexual abuse was revealed by Ellen to her godmother eight years after the first incident of abuse. At that time, Ellen was a twenty-year old college student. On PCR, defendant raises allegations of ineffective assistance by trial and appellate counsel, as well as trial errors. We affirm.

I

Defendant was convicted following a jury trial of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (count 1); fourth degree criminal sexual contact, N.J.S.A. 2C:14-2b (count 2); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count 3); second degree sexual assault, N.J.S.A. 2C:14-2c(4) (count 4); and second degree sexual assault, N.J.S.A. 2C:14-2c(1) (count 5). Defendant moved for a new trial. Judge Theodore J. Labrecque, Jr., denied the motion. An evaluation report by the Adult Diagnostic and Treatment Center opined that defendant did not present a pattern of repetitive or compulsive sexual pathology. Accordingly, Judge Labrecque imposed concurrent custodial terms aggregating fifteen years on counts 1, 2 and 3; and consecutive seven year terms on counts 4 and 5, for a total custodial sentence of twenty-nine years. We affirmed the conviction and sentence. State v. R.P., No. A-2965-97T5 (App. Div. June 7, 1999), certif. denied, 162 N.J. 132 (1999).

Defendant filed a PCR petition alleging that trial counsel had rendered ineffective assistance. Specifically, defendant alleged that prior to trial, he turned over to counsel numerous items that would impair the credibility of Ellen and her godmother, and these items were not used in his defense. In addition defendant alleged that trial counsel failed to:

prepare for cross-examination in pre-trail hearings and at trial;

offer photographs of Ellen's bedroom;

effectively cross-examine the godmother on bias and certain factual inaccuracies;

pursue the "prudent parent" theory;

pursue evidence of Ellen's prior abuse while living in her native country;

arguing chain of custody and lack of fingerprint analysis of the demonstrative evidence;

have gynecological exam of Ellen;

offer evidence of Ellen's telephone call to defendant expressing remorse and potential recantation;

offer evidence of Ellen's attempted suicide;

offer Ellen's high school and college essays;

pursue the Glen Ridge and Louima theories; interview all defense witnesses;

ineffective questioning on Ellen's vaginal HPV infection; entertain motions and make rulings on the record;

offer Ellen's medical records;

offer letter from godmother to defendant's wife;

pursue Ellen's motives;

ask defendant all questions that defendant wanted asked; call defendant in rebuttal;

dismiss godmother as fresh complaint witness;

prepare for closing arguments;

attack the state's rebuttal evidence;

failure to have defendant present at charge conference;

permitting redaction of Ellen's medical records;

failure to utilize defendant's medical records; and

failure to convey final plea offer to defendant.

Defendant also alleged three deficiencies by appellate counsel i.e., failing to move for reconsideration on sequestration of witnesses issue, failing to correct violation of Rule 3:9-1 concerning holding conferences off the record and failing to petition for certification on the grounds that the Appellate Division erred on sequestration issue.

The petition was initially considered by Judge Labrecque. However, he went on medical leave and later died before he could render a decision. The petition was then considered by another judge. The PCR judge denied defendant's petition without a hearing and filed a written opinion. After detailing the procedural history of the application and identifying the governing standards, the PCR judge summarized the allegation of ineffective assistance by trial counsel as follows:

In the instant case, the defendant alleges that he supplied counsel with extensive discovery concerning the case. It would therefore appear that counsel was in possession of such materials at the time of trial. All witnesses' names supplied to counsel were listed by him in reciprocal discovery as potential defense witnesses. The fact that counsel chose not to utilize all this information falls within the purview of trial strategy. It is quite clear to the Court that trial counsel's strategy was to establish the fact that the alleged abuse took place over a period of eight (8) years, the victim never complained to anyone, appeared happy to all, did extremely well in her school grades and appeared very close to her [adoptive father], the defendant. Therefore, how could this have happened? On the other hand, the defendant's strategy was to establish a motive for the victim and [her godmother], the fresh-complaint witness, to lie. To establish this the defendant wanted counsel to bring out the fact that the victim was the previous victim of sexual abuse in El Salvador, engaged in sexual acts with her boyfriend, wanted to better her station in life, wanted to live with [her godmother] in Connecticut and attend Yale and wanted to free herself of her household chores where she resided. To establish [the godmother's] bias, the defendant wanted trial counsel to elicit testimony that she led a high life style, was married to a neurosurgeon, lived on an elaborate estate and wanted the victim to move in with her so that she could have the daughter she never had. There can be no question but that there was a divergence of defense strategies.

The PCR judge then went on to outline that counsel had established that there was no physical evidence to corroborate Ellen's testimony because a broomstick and glass tube allegedly used in the abuse were not produced. There was no fingerprint analysis on the unsigned greeting cards or a vibrator given to Ellen by the defendant. There was no medical evidence Ellen had engaged in sexual intercourse. Although there was testimony that Ellen and the defendant often engaged in unprotected sexual intercourse after she was diagnosed with the HPV virus, trial counsel established that neither the defendant nor his wife were infected with the disease. In addition, trial counsel brought out inconsistencies in Ellen's statement to the investigators, her grand jury testimony and trial testimony. These inconsistencies were highlighted in defense summation.

The judge went on to point out that defendant's allegations of ineffectiveness by the trial counsel were either not borne out by the record or not likely to be successful in impairing Ellen or her godmother's credibility. The judge wrote:

At the time that the victim reported the abuse she was a twenty-year old college student and could have left the defendant's home anytime she wished. There was no need to allege sexual abuse to move to [her godmother's]. As to the alleged basis for bias aforesaid, the Court finds them without merit, obviously trial counsel also so found. As to [the godmother] , defendant sought to establish that she fabricated the "fresh complaint" so that the victim could move in with her and she would have the daughter she always wanted. Again, there was nothing to prevent the victim from living with [her godmother] should she so desire. As to defendant's allegations that he wanted [the godmother] impeached because of her high lifestyle, was married to a neurosurgeon, promised to pay for the victim's education at Yale and lavished expensive gifts on the victim, the trial transcript does not support the theory. True, [the godmother] was married to a neurosurgeon, however, they lived in a three-bedroom house in Connecticut, the victim, who now lives with [the godmother] , does not attend Yale expense free, but, commutes to Central Connecticut State College, pays her own tuition and works thirty five, forty-hours a week.

. . . .

Defendant also contends that the failure of trial counsel to introduce evidence that the victim was sexually abused as a youngster by her biological father, brothers and another in El Salvador, was tantamount to the ineffective assistance of counsel. Initially, the court questions the admissibility of such testimony in light of the Rape Shield Law, N.J.S.A. 2C:14-7. Also, had counsel attempted to introduce such evidence, he would have generated a great deal of sympathy for the victim. Additionally, there was no evidence that these alleged attacks in El Salvador were the source of the victim's HPV infection, if in fact she had such an infection.

The judge also dismissed as "sheer speculation" that the trial counsel should have argued that Ellen's testimony was colored by the contemporaneous cases of the "Glen Ridge Boys" and Abner Louima. Based on these reasons, the PCR judge denied the petition concluding that there was "no basis for an evidentiary hearing."

II

It is from that decision that defendant now appeals contending:

THE COURT ERRED IN FINDING THAT DEFENDANT'S CONVICTIONS AND SENTENCES DO NOT HAVE TO BE VACATED, AND A NEW TRIAL NOT GRANTED, BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN CONTRAVENTION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

Defendant has filed a pro se supplemental brief alleging:

TRIAL COURT IMPROPERLY DENIED DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We disagree with these contentions.

We begin our review with an identification of the governing authorities. A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Pursuant to Strickland, a defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel has the heavy burden of proving that: (1) counsel's performance was deficient and that (2) such deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Deficient performance is a failure to exercise the skill and diligence of a reasonably competent attorney under similar circumstances. Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Counsel's conduct must be viewed, without hindsight, from the perspective at the time of trial. Id. at 687-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Representation is constitutionally deficient only when it falls outside the wide range of professionally competent assistance. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Judicial scrutiny of counsel's performance must be highly deferential. Ibid. Prejudice is shown by proof creating "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 New Jersey Supreme Court has adopted the Strickland standard in evaluating ineffective assistance of counsel cases. State v. Fritz, 105 N.J. 42, 58 (1987). Moreover, a PCR petitioner must make a prima facie case in support of the claim and demonstrate "a reasonable likelihood that his or her claim will ultimately succeed on its merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 149, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462-63 (1992). The facts defendant advances in support of his claims should be viewed "in the light most favorable" to him, Marshall, supra, 148 N.J. at 158, and must be established by a preponderance of the credible evidence. State v. McQuaid, 147 N.J. 464, 483 (1997). With respect to the deficiency prong of the test, courts will not second-guess counsel's reasonable trial strategy. Kimmelman v. Morrison, 477 U.S. 365, 384-386, 106 S. Ct. 2574, 2588-89, 91 L. Ed. 2d 305, 325-327 (1986); State v. Perry, 124 N.J. 128, 153 (1991). "[C]ounsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990).

Here, defendant makes numerous allegations of deficiencies. They fall into two broad categories: conduct of the trial and pre-trial investigation and preparation. We are satisfied, as was the PCR judge, that the alleged deficiencies in either category do not meet the Strickland/Fritz standard for reversal. First, from our review of the record, we note that trial counsel's performance during trial was more than adequate to expose the weakness in the State's proofs and to impair the credibility of the State's witnesses. Defense counsel's defense scenario, i.e., that Ellen and her godmother were lying, was forcefully conveyed to the jury. The jury found otherwise. That cannot be attributed to counsel's performance. See State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 964, 120 S. Ct. 2693 (2000) (holding that "merely that a trial strategy fails does not mean that counsel was ineffective.")

Second, defendant's allegation that trial counsel failed to adequately prepare for trial is really a challenge to the defense strategy. However, a strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Other than his disagreement, defendant has not established that the strategic choices made by trial counsel fell outside the wide range of professionally competent assistance.

III

On appeal, defendant also contends that:

THE COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING BECAUSE DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF AN ENTITLEMENT TO POST-CONVICTION RELIEF.

Defendant has filed a supplemental pro se brief contending:

THE TRIAL COURT INCORRECTLY CONCLUDED THAT THE DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Failure To Investigate.

B. Counsel's Trial Strategy Was Reasonable.

C. Failure To Present "Evidence Of Bias."

D. Failure To Present Evidence Of Prior Sexual Abuse.

We disagree.

Rule 3:22-10 vests in trial courts the discretion to order an evidentiary hearing in order to decide a PCR petition. The purpose of such a hearing is to permit defendant to carry his burden of proof regarding PCR allegations; it is not to be utilized as a discovery device to search for new or different grounds for PCR. State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (holding that an evidentiary hearing should be held if there are "disputed issues as to material facts regarding entitlement to post-conviction relief"); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (evidentiary hearing should be granted if defendant "presented prima facie claim in support of post-conviction relief and the facts supporting the claim are outside the trial record"), certif. denied, 162 N.J. 199 (1999).

As stated above, we disagree with the assertion that a prima facie showing of ineffective assistance was made by defendant. Therefore, an evidentiary hearing was not required. Moreover, when arguing that trial counsel failed to conduct a pre-trial investigation or interview witnesses, a defendant "must do more than make bald assertions of denial of the effective assistance of counsel." Cummings, supra, at 170. When a defendant alleges that his or her attorney inadequately investigated the case, defendant must assert facts that "an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).

Here, defendant has not met that standard. Rather, he merely speculates on the impact that certain evidence would have had on the jury. In other instances, defendant assumes that certain evidence, which is inadmissible, could have been presented to the jury. Although the PCR judge would not have erred if an evidentiary hearing had been conducted, we perceive no error in the PCR judge's discretionary decision to forego an evidentiary hearing.

IV

Defendant also contends:

THE COURT ERRED IN FINDING THAT THE TRIAL COURT'S OFF-THE-RECORD RULINGS AND OFF-THE-RECORD PROCEEDINGS DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO BE HEARD ON APPEAL.

The same issue is raised by defendant pro se:

OFF THE RECORD RULINGS DEPRIVED DEFENDANT OF MEANINGFUL APPELLATE REVIEW OR THE EFFECTIVE ASSISTANCE OF COUNSEL.

This argument centers on the allegation that the judge made rulings that are not memorialized on the record and that there were status conferences which defendant did not attend. These include a ruling to redact a medical report to remove Ellen's assertion that she had been sexually abused at age eleven and a ruling to exclude defendant's medical records showing that he did not suffer from HPV. In addition, defendant asserts that contrary to his wishes, he was excluded from the charge conference at his counsel's request. He argues that these actions violated his rights pursuant to N.J. Const. 1947, art. VI, 5, 2, and R. 1:7-2 and R. 3:9-1(c). Defendant notes that it is the joint obligation of the trial judge and counsel "to make a record and to request and provide for record notation of events occurring in chambers." Fehnel v. Fehnel, 186 N.J. Super. 209, 217 (App. Div. 1982). Furthermore, defendant cites Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-2 (2004) for the proposition that "a judge's unrecorded ruling on an evidence issue can only be preserved for appeal if the aggrieved party places the matter on the record and obtains the ruling on the record." Finally, defendant states that off-the-record proceedings that are not memorialized violate R. 3:9-1(c).

The PCR judge noted that "there [were] no motions or Court orders or transcripts indicating that such proceedings occurred;" and that defendant's counsel agreed that the victim's statement in her medical record should be redacted. The judge also noted that defendant's medical record was not moved into evidence because it was inadmissible hearsay. Defendant's expert had testified that he did not rely on it in rendering his opinion. It was also noted that defendant was present in court when his trial counsel requested that he be absent from the charge conference and that defendant did not object. The record shows that PCR counsel withdrew the argument concerning the redaction of the medical records.

Thus, it is clear that defendant's allegations are without merit. There were no rulings to place on the record with respect to the redaction of Ellen's medical record. The reason for the exclusion of defendant's medical record was clearly placed on the record. Defendant is precluded from objecting to his exclusion from the charge conference because he failed to object when the decision to exclude him was made. Although R. 3:16(b) requires a defendant to be present at every stage of the trial, it does not prevent a waiver of such right by defendant.

V

The next contention is that:

THE COURT ERRED IN FINDING THAT THE PETITIONER'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE ASSISTANCE OF APPELLATE COUNSEL DURING THE DIRECT APPEAL PROCESS.

We disagree. The issue presented to the PCR judge was the failure of trial counsel to seek the sequestration of the State's witness. The PCR judge noted:

The defendant's last argument that [a]ppellate counsel was ineffective in not raising the sequestration issue on direct appeal is without merit. The issue was raised and decided by the Appellate Division in their per curiam opinion wherein they stated that no prejudice resulted to the defendant by allowing the State's witness to remain in the courtroom during the defendant's case. As to filing a motion for reconsideration in the Appellate Division on that issue, such an application would be fruitless in light of the language of the opinion set forth above.

Lastly, the Court finds no merit to the argument that Appellate counsel failed to raise error on the part of the Appellate Division on the sequestration issue.

Thus, the contention is procedurally barred. The issue was considered and rejected on direct appeal. It cannot be raised anew in PCR. R. 3:22-5.

VI

The final contention is:

THE COURT ERRED IN FINDING THAT CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT DID NOT WARRANT VACATION OF HIS CONVICTIONS AND SENTENCES, AND THE GRANT OF A NEW TRIAL.

Because we find no merit in any of the alleged contentions, the cumulative effect argument fails.

 
Affirmed.

"Ellen" is a fictitious name. She is identified in the records as E.P.

(continued)

(continued)

17

A-6569-01T4

RECORD IMPOUNDED

November 1, 2005