STATE OF NEW JERSEY v. S.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0101-05T40101-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant.

_________________________________

 

Submitted May 15, 2007 - Decided June 27, 2007-

Before Judges Weissbard and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-02-0234.

Yvonne Smith Segars, attorney for appellant (Carolyn V. Bostic, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, S.R., appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In 1996, defendant was indicted for the following offenses: two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one and two); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts three and four); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts five and six); and two counts of fourth-degree child abuse, N.J.S.A. 2C:9:6-1 and N.J.S.A. 2C:9:6-3 (counts seven and eight).

On November 21, 1996, defendant waived jurisdiction from the Juvenile Division to the Law Division pursuant to N.J.S.A. 2A:4A-27 and R. 5:22-1. Tried before a jury from June 30 through July 2, 1997, defendant was convicted on all counts. On January 8, 1998, the judge sentenced defendant as follows: on count one, to a term of twenty years, ten years to be served without parole eligibility; count two, to a term of twenty years, with ten years of parole ineligibility to be served concurrent to count one; count five, to a term of five years, two and one-half years of parole ineligibility to be served concurrent to counts one and two; and, count six, to a term of five years, two and one-half years of parole ineligibility to be served concurrent to counts one, two and five. Counts three, four, seven, and eight were merged with his other convictions.

Defendant filed a timely appeal arguing prosecutorial misconduct, merger of the aggravated sexual assault and endangering convictions, and that his sentence was excessive. In an unpublished opinion dated June 25, 1999, we affirmed defendant's convictions and sentences, but remanded for amendment of the Judgment of Conviction to reflect the merger of counts five and six into counts one and two. Defendant's Petition for Certification was denied.

On or about December 18, 2002, defendant filed a pro se PCR petition. By order of October 10, 2003, the petition was dismissed without prejudice. Defendant, represented by counsel, re-filed the petition on February 13, 2004. After a hearing on October 1, 2004, the petition was denied.

I

At some point between October 1, 1989 and October 1, 1990, the victim, C.M., alleged that defendant had sexually assaulted him on two separate occasions. At the time of the first assault, C.M. was approximately three and one-half years old and was at his home with defendant, a juvenile at the time, who is C.M.'s cousin. C.M. testified at trial that defendant "told [C.M.] his private part was [a] bottle, and [he] make [sic] me suck it." Defendant then told C.M. not to tell anyone what had happened.

Approximately one year later, when C.M. was four and one-half years old, defendant's mother was babysitting C.M., as she did during the week from about 7:00 a.m. until 2:30 p.m. each day. Defendant, who was normally at school during this time, happened to also be in the apartment while his mother was babysitting. C.M. testified that while defendant's mother was sleeping, defendant asked him if he wanted to play his football game on his Nintendo. After C.M. agreed, defendant pushed him onto the bed and took off his clothes. Defendant then inserted his penis into C.M.'s anus and "moved up and down." C.M. then ran out of the room screaming. Defendant warned C.M. that if he told anyone what had happened he "was going to get [him]."

Several months after the second incident, C.M. began having "nightmares" and "bad dreams and thoughts" about the incident with defendant. After one of these nightmares, while seeking comfort from his mother, C.M. told his mother, D.M., what had taken place between him and defendant. D.M. testified that C.M. told her that defendant "made him suck on his private parts" and had "tried to put his [the defendant's] private parts in [C.M.'s] backside." D.M. then told this to C.M.'s father, who confronted defendant's mother, his aunt, about the incident. After denials from defendant and his mother, no report was made to the authorities.

Approximately five to six years after the assault took place, C.M. participated in a Child Abuse Prevention program (CAP) sponsored by his elementary school, during which time C.M. learned about different types of child abuse, what to look out for, and who to turn to when abused. Following the program, C.M. approached one of the administrators of the program and told them that he had been abused by his cousin. The CAP personnel referred C.M.'s claims to DYFS, which in turn referred the claim to the Pleasantville Police Department.

On March 30, 1996, Lt. Walter Coleman of the Pleasantville Police Department interviewed C.M. and arranged for Investigator Theresa Constantini of the Atlantic County Prosecutor's Office to take a videotaped statement from C.M. that was admitted into evidence at defendant's trial.

In April 1996, C.M. was examined by Dr. Martin A. Finkel, an expert in the area of child sexual assault and child abuse. C.M. told Dr. Finkel that defendant "stuck his penis in my buttocks and he went up and down." Dr. Finkel then showed C.M. an anatomical model and C.M. indicated "penetration into the anal/rectal canal." With regard to the first incident, C.M. told Dr. Finkel that when he was three-years-old, defendant made him suck on his penis. Regarding the second incident, C.M. told Dr. Finkel that defendant told C.M. that they would play a game, but that instead defendant pushed him on the bed and pulled his pants down.

Dr. Finkel found C.M.'s statements to be truthful based on the concrete nature of his statements and his comparison of the pain caused by the second incident to a suppository or when he had a bowel movement. Additionally, most children C.M.'s age would not have specific knowledge about the sexual acts performed on him, absent having the acts actually performed or having been exposed to sexual experiences. Dr. Finkel's physical examination of C.M. revealed no findings of injury, as was to be expected in light of the lapse of time between the assaults and the report of abuse.

Defendant testified at trial and denied all the allegations. The defense presented testimony that C.M. and defendant had had contact at numerous family functions over the years, had played together, and that no one had ever witnessed any discomfort or fear of the defendant on C.M.'s part. The defense also presented the alternate theory that the story was fabricated because C.M.'s parents were mad at defendant because he had recently totaled C.M.'s father's car.

Defendant's PCR petition cited two related arguments concerning trial counsel's ineffectiveness: counsel's failure to object to and seek a hearing concerning the hearsay testimony of D.M. and Dr. Finkel. Additionally, appellate counsel's failure to raise trial counsel's ineffectiveness was said to constitute ineffective assistance of appellate counsel, and the cumulative errors of trial and appellate counsel violated defendant's right to effective representation.

In denying the petition, the PCR judge found, regarding D.M.'s testimony, that:

I certainly think, under [N.J.R.E. 803(c)(27)], that had there been an application made, the likely result would have been that she would have been permitted to testify. Because I believe that the record -- contains sufficient evidence to underwrite the reliability of the statement made by the child victim.

First of all, given the child's age, given the person to whom he complained, his mother, given the situation that would explain the delay, that is, there being a change of circumstances and a different setting, all of those things certainly explain the delay that might occur from when a child is allegedly victimized and when he reports -- that incident to one -- to whom he would ordinarily be expected to go to for solace, comfort and help. Those are the indicia which normally attend to the admissibility of a fresh complaint but, also, would support under the reliability factor that must be found to allow testimony to come in under [N.J.R.E. 803(c)(27)].

Additionally, the judge found the delay between the incident and the statement to the mother was to be expected given the circumstances. As a result, the court found that trial counsel's failure to object was of no moment in the greater scheme of the trial, and did not constitute ineffective assistance of counsel.

As to the testimony of Dr. Finkel, the judge agreed that C.M.'s statements to Dr. Finkel likely would not have been admissible under N.J.R.E. 803(c)(4) (statements for purposes of medical diagnosis or treatment), but likely would have been admissible under N.J.R.E. 803(c)(27) (tender years exception). The judge also found that even if Dr. Finkel's testimony had been excluded, "[g]iven the totality of evidence in the case

. . . there was ample evidence before the Jury, especially in the form of the child/victim himself, from which the Jury most likely would have found defendant's guilt beyond a reasonable doubt."

II

Defendant was sentenced and his judgment of conviction entered on January 8, 1998. Therefore, for his petition to have been timely it must have been filed within five years from the date of the entry of the judgment. See R. 3:22-12; State v. Riley, 216 N.J. Super. 383, 389 (App. Div. 1987). Here, defendant filed a pro se petition on December 18, 2002, within the five-year period. This petition was then dismissed by order of October 10, 2003, "without prejudice." The circumstances of the dismissal are unknown, although there is a suggestion in the record that defendant's original counsel had a disqualifying personal relationship with the judge originally assigned to the case. Defendant, represented by counsel, refiled the petition on February 13, 2004. This newly-filed petition was not within the five-year period. As a result, in its initial response the State argued that the petition should be procedurally barred. However, at the PCR hearing the State informed the court that it was "not going to be pursuing that claim anymore." As a result, the matter proceeded on the merits.

Yet, on the present appeal, the State again argues that the petition was out of time and there was no showing of excusable neglect to permit an extension of the five-year deadline, as required by Rule 3:22-12.

Here, defendant attempted to argue excusable neglect, but there was no ruling or decision on that issue because the State abandoned the timeliness objection. Based on the inconsistent positions taken by the State, we reject its belated timeliness argument.

III

To make the requisite prima facie showing of ineffective assistance of counsel, defendant must show a "reasonable likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted by the Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong, a defendant must show that trial counsel's representation was somehow deficient. Fritz, supra, 105 N.J. at 52 (internal quotation marks omitted). This showing must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (internal quotation marks omitted). To be deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 694. Counsel's performance should be judged not in hindsight but from counsel's perspective at the time. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Under the second prong, defendant must then "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 698, 104 S. Ct. at 2070, 80 L. Ed. 2d at 701 (internal quotation marks omitted). To be prejudicial, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63.

The Supreme Court of New Jersey has summed up the Strickland/Fritz test as follows, "[I]f counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Fritz, supra, 105 N.J. at 58. The standards set forth in Strickland/Fritz apply to both trial and appellate level counsel.

A. The Finkel Testimony

Defendant alleges that his trial counsel was ineffective by affirmatively waiving a hearing under N.J.R.E. 104(a) to test the admissibility of Dr. Finkel's testimony containing hearsay statements claimed to be admissible under N.J.R.E. 803(c)(4), or to otherwise object to the admissibility of Dr. Finkel's testimony regarding what C.M. told him. The PCR judge agreed that the testimony likely should not have been admitted under N.J.R.E. 803(c)(4) and that, therefore, it was error to not object to that testimony. Defendant argues that this failure to object was prejudicial to him because it was a repetition of the testimony of both C.M. and his mother, and impermissibly buttressed C.M.'s reliability and credibility.

N.J.R.E. 803(c)(4) provides for the admissibility of "[s]tatements made in good faith for the purpose of medical diagnosis or treatment. . . ." Here, C.M.'s statements to Dr. Finkel were clearly not for purposes of diagnosis. The meeting was clearly arranged at the behest of law enforcement in preparation for an eventual prosecution. As defendant notes, Lt. Coleman actually transported C.M. and his mother to and from Dr. Finkel's office. Additionally, C.M.'s statements do not seem to have any medical or diagnostic purpose, but rather seem designed to assess the credibility of C.M.'s earlier statements to police. Even taking into account the physical examination of C.M., there was still no diagnostic purpose for the visit because Dr. Finkel himself stated that due to the significant time lapse between the incident and the exam, he did not expect to find any physical injuries. Consequently, these statements were clearly inadmissible under N.J.R.E. 803(c)(4).

However, the so-called "tender years" exception to the hearsay rule provides:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if, (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

[N.J.R.E. 803(c)(27).]

In determining whether a statement meets the criteria of this exception, a court should consider the totality of the circumstances in which the statement was made. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). Further, when determining whether a particular statement is trustworthy, a court should utilize the following factors: "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 827, 110 S. Ct. 3139, 3150, 3153, 111 L. Ed. 2d 638, 656, 659-60 (1990)). Nonetheless, these factors are not exhaustive, and "'courts have considerable leeway in their consideration of appropriate factors,'" ibid. (quoting Idaho v. Wright, supra, 497 U.S. at 822, 110 S. Ct. at 3150, 111 L. Ed. 2d at 656), although the court may not determine trustworthiness by looking to other evidence adduced at trial. State v. D.G., supra, 157 N.J. at 125. Finally, there is no bar to admitting the testimony of a doctor under this exception. See, e.g., R.S. v. Knighton, 125 N.J. 79, 100 (1991).

Here, the PCR judge undertook a retrospective assessment of the Finkel testimony under N.J.R.E. 803(c)(27), concluding that:

the circumstances under which the child gave Doctor Finkel the account, Doctor Finkel being for the child even at that age, I believe nine at the time, being somewhat of a figure -- that is, a person, -- as a doctor, someone that a child would look up to -- look to comfort and aid. And I think, frankly, that doctors hold a kind of position in our society that would not necessarily encourage a child to prevaricate to a -- yes, prevaricate to a so-called father figure or a figure of authority such as I think doctors are viewed. It may have been a closer call given the time involved as to Doctor Finkel, but I think that the record contains sufficient circumstances from which the court could have very reasonably allowed him to testify as well.

Defendant disagrees and argues that if the testimony was to be admitted under N.J.R.E. 803(c)(27), there should have been a N.J.R.E. 104(a) hearing to determine whether the statements were trustworthy. Also, he contends that trial counsel was aware of many alleged factors at the time of trial that "raised serious questions about the reliability of C.M.'s statements made to Dr. Finkel." Thus, defendant argues that trial counsel should have requested the hearing and the failure to do so constituted ineffective assistance of counsel. We agree that counsel was ineffective in failing to object to the hearsay testimony and, if necessary, to seek a N.J.R.E. 104(a) hearing.

Having concluded that defendant met the first Strickland prong, we must address the second prong regarding prejudice. That determination, in this context, involves a decision whether there is a "probability" that the statements to Dr. Finkel were "trustworthy." In his opinion, quoted above, the PCR judge only went so far as to find "that the record contains sufficient circumstances from which the court could have very reasonably allowed [Dr. Finkel] to testify as well." That observation falls short of a finding that the statements were, to a degree of "probability," trustworthy. Our conclusion that counsel was ineffective requires that defendant be accorded the hearing with appropriate findings that he would have been entitled to if counsel had performed properly.

The issue with respect to Dr. Finkel is not easily determined. Indeed, the judge alluded to the issue of the Finkel testimony as being a "closer call" than that of D.M., the child's mother, "given the time involved." The "time involved," of course, is the nearly six years between the alleged incident of abuse and the interview with Dr. Finkel. There is no doubt that the doctor's interview with C.M. was forensically motivated. Indeed, as noted, Lt. Coleman actually transported D.M. and C.M. to the doctor's office, although the record does not reveal who recommended the exam or for what purpose. The record nevertheless strongly supports the view that the doctor's intervention was sought to bolster a criminal prosecution of defendant.

While the "tender years" exception does not contain any time limitations between incident and statement, and there is no constitutional violation here because C.M. testified, see State v. Burr, ____ N.J. Super., ____, ____ (2007) (slip. op. at 44-46), the import of the rule and its genesis suggests that the type of statements being addressed are those reasonably contemporary to the events described. Our research has failed to reveal a case in New Jersey admitting statements to a doctor for forensic purposes so long after the events at issue. Because the rule contains no time limitation we can only conclude that the length of time and purpose of the exam are important factors in the trustworthiness determination. The matter is troubling because our conclusion lends the rule to potential abuse by having referrals to physicians years after the events for the sole purpose of bolstering trial testimony.

These observations reinforce our determination that a de novo N.J.R.E. 104(a) hearing is required to address the admissibility of Finkel's testimony. We leave the parameters of the hearing to the judge, including who should testify and/or the extent to which the trial transcript provides an adequate substitute for live testimony, in whole or in part. Before addressing the impact of a ruling in defendant's favor, we turn to D.M.'s testimony.

B. The D.M. Testimony

In ruling that D.M.'s testimony concerning the statements by C.M. was admissible, the PCR judge referenced the fresh complaint doctrine but ultimately rested his conclusion on the fact that "had there been an objection to her testifying as an exception to [N.J.R.E. 803(c)(27)], the ruling likely -- more likely than not would have been that she would have been permitted to testify." While defendant relies primarily on the argument that the fresh complaint doctrine would not apply, we are satisfied that the testimony would surely have been admitted under the "tender years" hearsay exception.

The requirements of the "tender years" hearsay exception have been discussed in the previous section. But the factual background concerning these statements was quite different than that involving Dr. Finkel. The statements by C.M. to his mother were made spontaneously as she was attempting to settle him down after a nightmare. They were not made in response to any sort of leading question. Furthermore, these statements, made only months after the incident occurred, bear the indicia of reliability based on their language and content. C.M., approximately four-years-old at the time, used language that was appropriate for a child of his age to discuss acts that would not be familiar to him absent some sort of abuse. While defendant suggests that C.M. had a motive to fabricate based on the fact that defendant wrecked his father's car, we find the suggestion utterly implausible and insufficient to overcome the other indicia of reliability.

In this instance, the present record so strongly suggests admissibility under N.J.R.E. 803(c)(27), that no N.J.R.E. 104(a) hearing is required. While the judge again did not directly find the statements to be trustworthy, our independent review of the record leaves us in no doubt on that score. R. 2:10-5.

C. Harmless Error

If the PCR judge finds that Dr. Finkel's testimony did not meet the requirements of N.J.R.E. 803(c)(27), the judge will have to make an assessment of whether that error was harmful or harmless. While we entertain doubt that any such error was harmless, given that the case rested on C.M.'s uncorroborated testimony, this is a finding that should be made in the first instance by the PCR judge under the appropriate standards. See State v. Pillar, 359 N.J. Super. 249, 275-79 (App. Div.), certif. denied, 117 N.J. 572 (2003); State v. Horne, 376 N.J. Super. 201, 214 (App. Div.), certif. denied, 185 N.J. 264 (2005). We are confident the PCR judge will set aside his previous conclusion and review the matter impartially.

IV

Defendant attempts to raise the argument that his trial counsel was also ineffective for failing to seek a N.J.R.E. 104(a) hearing regarding C.M.'s videotaped statement. This claim was not included in defendant's original petition for PCR, and is raised for the first time in this appeal. As a result, it may be deemed waived.

In any event, we have examined the argument on its merits and conclude that defendant was not prejudiced by the admission of the videotape. As stated earlier, C.M. testified at trial and was subject to cross-examination. Though the videotape served to bolster C.M.'s testimony, the jury was still given the opportunity to observe C.M. in person and to view his reactions during examination by both counsel. This was not a case where the victim falters on the stand and a videotape of the victim is introduced to shore up his earlier testimony. Here, C.M.'s testimony was essentially analogous to that contained in the videotape. Therefore, defendant has not shown that suppression of the videotape would have resulted in a different outcome at trial.

V

As a result of our disposition, we have no need to address defendant's arguments concerning his appellate counsel.

VI

Finally, defendant argues that he is entitled to a remand under State v. Natale, 184 N.J. 458, 494 (2005). We disagree.

"The PCR rule is not generally designed to give retroactive effect to case law which interprets statutes and Rules implementing them unless constitutional values are at stake." State v. Staruch, 326 N.J. Super. 245, 250 (App. Div. 1999). Nevertheless, defendant is still not entitled to re-sentencing under the principles of Natale and its progeny.

In deciding Natale, the Court gave its ruling "retroactive effect to all cases in the pipeline." Natale, supra, 184 N.J. at 494, which means "defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal. . . ." Ibid. Therefore, defendant would only be entitled to a remand for resentencing if he was within the "pipeline."

Defendant's direct appeal concluded on January 4, 2000, the date that the Supreme Court denied his Petition for Certification. This was well before the August 2, 2005 decision date of Natale. Consequently, defendant's case was not on direct appeal at the time of the decision. Defendant's brief in support of his direct appeal, included in the appendix, also did not raise any Blakely-type arguments with regard to his sentencing. Therefore, he is not entitled to retroactive application of the decision in Natale and is not entitled to a recalculation of his sentence, even though he was sentenced above the presumptive term.

 
Affirmed in part, remanded in part for further proceedings consistent with this opinion.

On the same date, defendant was sentenced pursuant to a plea agreement arising out of a separate matter involving robbery, aggravated assault and conspiracy. As a result of the agreement, the judge imposed a term of imprisonment of five years, with three years of parole ineligibility, to run concurrent to the sentences imposed on the trial convictions.

(continued)

(continued)

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A-0101-05T4

RECORD IMPOUNDED

June 27, 2007