STATE OF NEW JERSEY v. JOHANNES SEEMANN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-35-04T40035-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHANNES SEEMANN,

Defendant-Appellant.

 

Submitted: December 14, 2005 - Decided January 11, 2006

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 99-01-22.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Debra A. Owens, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Johannes Seemann appeals from order entered on May 28, 2004, denying his application for post-conviction relief. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Defendant was convicted of second-degree sexual assault, fourth-degree criminal sexual contact, and second-degree endangering the welfare of a child. The victim, A.Y., who was born on March 18, 1983, was the minor daughter of defendant's best friend.

On his direct appeal, we affirmed his convictions of second-degree sexual assault and fourth-degree criminal sexual contact, but reversed his conviction and the sentence imposed on the second-degree endangerment charge, and remanded that count for retrial. We concluded that the jury had not been properly instructed concerning the criteria for distinguishing between a second-degree and third-degree crime of endangering the welfare of a child. State v. Seemann, A-3445-99T4 (Dec. 14, 2001) (slip op. at 21). Defendant's petition for certification was denied by the Supreme Court on February 26, 2002. State v. Seemann, 171 N.J. 339 (2002). The State elected not to retry defendant on the endangering charge, and that charge was dismissed.

On December 30, 2002, defendant filed a pro se petition seeking post-conviction relief. On March 30, 2004, defense counsel filed an amended petition, contending defendant had been provided ineffective assistance of counsel based on counsel's alleged failure to properly investigate, failure to call potential witnesses to properly focus on the credibility of the victim, and failure to thoroughly and pertinently cross-examine the State's witnesses.

A hearing on defendant's petition was conducted in the Law Division on May 28, 2004. The judge concluded that defendant had failed to established a prima facie case of ineffective assistance of counsel, stating in pertinent part:

In the present case, defendant argues that trial counsel failed to call several witnesses whom he alleges would have testified on his behalf.

Specifically, defendant identified six witnesses he believes trial counsel should have interviewed and called to testify.

* * * *

This court agrees with the State that defendant has failed to establish a prima facie case of ineffective assistance in regards to any of these witnesses.

First of all, defendant failed to submit affidavits for any of the witnesses he alleges could have made a difference to the outcome of the trial.

* * * *

[C]ourts have given little credence to ineffective assistance claims when they are premised upon absent witnesses and where there are no affidavits provided to demonstrate how the witnesses would have testified and how the testimony would have affected the verdict.

* * * *

In the present case, the majority of the defendant's allegations are supported only by certifications by defendant, himself, and his attorney assigned for this motion.

The only other support provided is investigation reports of interviews with [F.G.] and [C.G.]. Therefore, the claims regarding the other four witnesses technically must fail based on the absence of affidavits alone.

However, this court finds that even if affidavits of these witnesses had been provided, if they would have testified as defendant alleges, defendant still would have failed to establish a prima facie case of ineffective assistance.

First, this court notes that defendant argues that the testimony of [K.P.] should have been elicited involving an alleged medical examination of the victim to determine whether penetration occurred.

This court will not grant an ineffective assistance of counsel claim in this instance where trial counsel succeeded in securing an acquittal for the defendant on all charges involving sexual penetration.

It is illogical for the defendant to claim that his trial counsel was ineffective in failing to question witnesses regarding this alleged examination when counsel succeeded in convincing the jury that defendant was not guilty of sexual penetration of the victim.

Furthermore, trial counsel is not ineffective by failing to garner testimony from [K.P.] regarding the victim's desire to get even with the defendant for failing to buy her a graduation gift. It appears this evidence was all hearsay and trial counsel was not ineffective by choosing not to question [K.P.] about this alleged bias.

Second, defendant argues that trial counsel should have called the victim's brother, [B.Y.], to testify seemingly because the alleged incestuous relationship between the brother and sister would call into question the victim's allegations. However, as the State pointed out, trial counsel made the proper decision in not calling [B.Y.]. First of all, defense would likely not have been able to overcome the constitutional hurdle that [B.Y.] has the right not to incriminate himself under the Fifth Amendment.

Additionally, this testimony would have been excluded under the Rape Shield Act, N.J.S.A. 2C:14-7, which specifically prohibits the introduction of the victim's prior sexual conduct unless it is relevant and highly material and introduction substantially outweighs the possibility of prejudice.

* * * *

Furthermore, defendant argues that trial counsel should have called [B.Y.] to testify regarding the shower incident and the injury the victim suffered to her vagina.

This court finds that neither aspects of testimony would have an impact on the outcome of the trial and trial counsel did not err by failing to elicit said testimony.

It was trial strategy.

Third, this court agrees with the State that defendant has provided no credible evidence to support his claim of ineffective assistance of counsel as to [J.R.] and [A. H.], the victim's friends, who would allegedly testify that they were never assaulted by defendant. [A.H.] has specifically refused to sign a certification and there is no evidence that supports defendant's claims regarding either of their potential testimony.

In addition, the fact that they were never assaulted or were present when the victim was assaulted is of no moment. The victim never indicated that anyone else was present during any of these assaults other than possibly the first instance where her brother may have been present at the shower incident.

Fourth, trial counsel made a strategic decision not to elicit testimony from [F.G.] and [C.G.] regarding the victim's alleged obsession with defendant. This was a sound trial strategy, particularly considering the victim's age. The victim was between the age of 8 and 13 when the abuse took place, while defendant was a middle-aged man.

This court does not find ineffective assistance for trial counsel to have considered that presenting a defense premised on a child's obsession with a middle-aged man would have undermined the defense.

Furthermore, as discussed in regards to [K.P.], this court does not find ineffective assistance [based on] trial counsel's failure to garner testimony regarding the alleged medical examination of the victim. Therefore, trial counsel was not ineffective by not eliciting testimony from [F.G.] and [C.G.] regarding this examination.

The examination would have garnered nothing with reference to the charges that he was found guilty of.

And, frankly, the examination could have been used as either a pro or con in the determination of count one.

Finally, this court rejects defendant's allegations regarding [C.G.'s] phone conversation with [attorney] Donald Lomurro regarding defendant's alleged confession to the police. [C.G.] does not appear to have listened to the tape and could not testify to anything on it or even having personal knowledge of the existence of the tape.

Additionally, there has been a question over whether a tape actually even existed; and, therefore, trial counsel's failure to locate the tape does not rise to the level of ineffective assistance.

* * * *

Concerning defendant's claim that trial counsel and the trial judge were biased against him, these were procedurally barred under [R.] 3:22-4 and are also without merit.

On appeal, defendant presents the following arguments for our consideration:

THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS EXTABLISHED, THEREBY MANDATING AN EVIDENTIARY HEARING.

A. Trial Counsel Failed To Pursue Interviews From Some Of The State's Witnesses.

B. Trial Counsel Failed To Adequately Cross-Examine Some Of The State's Witnesses.

C. Trial Counsel Failed To Investigate Prospective Witnesses And/Or Failed To Have Exculpatory Witnesses Testify.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion, and we affirm substantially for the reasons articulated by Judge Mellaci in his oral opinion delivered on May 28, 2004. We add the following.

The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

In order to establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out by the Court in Strickland, supra:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987). "'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that 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.

Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Based on our detailed review of the trial record in light of these principles, we conclude that defendant has failed to establish that his trial counsel's performance was deficient. As the trial court has noted, with respect to defendant's claim that trial counsel failed to call favorable witnesses on his behalf, defendant has failed to present a prima facie case of ineffective assistance of counsel because no affidavits or certifications from those proffered witness had been provided to demonstrate how they would have testified, nor was there a showing that the proffered information would have affected the verdict.

Defendant has also contended that trial counsel's performance was deficient based on an alleged failure to effectively cross-examine the State's witnesses. Viewing the trial record as a whole, we disagree. The most damaging evidence consisted of defendant's own statements, as related by Detectives Textor and Wright. They testified that defendant had provided a voluntary statement in which he admitted that he had put his mouth on the victim's breast and vaginal areas, that he had bent her over the couch and had "humped" her on numerous occasions, that he had placed his fingers inside the victim's vagina, and that this conduct had occurred in the victim's residence, in his residence, and in his car.

This critical testimony was the subject of a pre-trial Miranda hearing, during which defense counsel thoroughly cross-examined both Detectives and vigorously argued that his client's statement be suppressed; the trial court admitted defendant's statements. Defendant testified, and denied making those statements to the Detectives, asserting that because he did want A.Y. to be subject to trial testimony, he "would go along with anything she says about this."

Defense counsel cross-examined each witness produced by the State, including the victim (A.Y.), the victim's mother (D.Y.), and the victim's friend (D.A.), including an extensive cross-examination of Detectives Textor and Wright in an effort to mitigate their damaging testimony. Defense counsel also produced seven character witnesses, including defendant's son, who testified to defendant's reputation for truthfulness, honesty and high moral character. Defendant also testified. We also note that defendant was acquitted of the most serious charge filed against him, first-degree aggravated sexual assault. Unless we were to engage in an improper use of hindsight, the record does not reflect deficient performance by defendant's trial counsel.

 
Affirmed.

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

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12

A-0035-04T4

RECORD IMPOUNDED

January 11, 2006