STATE OF NEW JERSEY v. R.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4548-05T44548-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.W.,

Defendant-Appellant.

________________________________

 

Submitted February 6, 2007 - Decided May 29, 2007

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 97-12-1897.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Captan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant R.W. appeals from the denial of his petition for post-conviction relief (PCR), alleging that he had been denied the effective assistance of counsel. We affirm.

Defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, (count one), second-degree sexual assault, N.J.S.A. 2C:14-2c (count three), second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, (count five), and fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count six), following a second jury trial, after his 1999 judgment of conviction on the same indictment was reversed on appeal. On September 29, 2001, the trial court imposed sentence of fifteen years incarceration on the first-degree aggravated sexual assault conviction, and a concurrent sentence of seven years incarceration on the second-degree endangering conviction. The other convictions were merged. Defendant's conviction and sentence were affirmed by us in an unpublished opinion. Certification was denied.

The basic facts supporting conviction were that from approximately April 1995 to April 1997, defendant assisted his aunt in the care and discipline of her three minor adopted children: R.G., who, was age twelve in April 1995, and her two younger siblings. On the pretense that he was taking R.G. to the store, defendant, instead, took the child to his home to engage in sexual intercourse. On other occasions, when defendant took all the children to his home, he accompanied R.G. upstairs while the other children played in the basement. R.G. disclosed to her guardian, Ms. W., that defendant had been raping her.

Defendant's PCR application to the Law Division presented three bases for relief: (1) counsel did not introduce defendant's work records for the period 1995 to 1997, to prove he worked in New York City each weekday evening, rebutting the allegations that sexual assaults occurred when he took R.G. to his home after school; (2) counsel did not present character witnesses at trial to bolster defendant's credibility; and (3) counsel failed to present fact witnesses to verify the longstanding feud between defendant and Ms. W., which would explain why false claims were made against him. In addition to the claims against trial counsel, defendant asserted that appellate counsel was ineffective to the extent that the issues should have been raised on appeal and were not.

Defendant has chosen not to appeal the denial of relief based upon the failure to introduce his work records, so we will not discuss this issue further. Regarding the second assertion, defendant claimed that counsel failed to call witnesses to testify regarding his reputation for truthfulness and veracity despite being provided with a witness list. Defendant argued that he had no prior criminal convictions, and the investigation reports obtained after interviewing the proposed witnesses in support of the PCR petition revealed the witnesses were favorably disposed to discuss his good character. Since credibility was an issue, he maintained that the witnesses should have been presented. Finally, evidence that defendant had a previous disagreement with Ms. W., who was his aunt, over insurance proceeds paid after the death of defendant's father, who was also Ms. W.'s brother, was presented in the first trial, and also should have been presented during retrial.

The State argued that each of these decisions fell within the bounds of trial strategy. More specifically, the State contended that the character witnesses could not testify as to a trait pertinent to the charged offense, so it was reasonable that none were called. The dispute between Ms. W. and defendant was raised in the first trial resulting in extensive cross-examination aimed at deteriorating defendant's credibility. The first trial ended in defendant's conviction, making it a strategic decision not to present the evidence in the second trial.

The motion judge determined that an evidentiary hearing was necessary only on the issue involving character witnesses because the record did not reveal the reasons for the decision not to call such witnesses. In reviewing the arguments regarding Ms. W.'s illwill, the trial judge stated:

[S]uffice it to say, that nothing prohibited the [d]efendant, who testified at trial from introducing those facts.

In fact, the prosecutor asked the [d]efendant the following question regarding possible motivations the victim may have had to lie. . . .

["]Question: Can you tell this jury

. . . if you have any idea why she . . . would do that, other than the fact that you did those things to her? . . .["]

[Defendant:] "It could be because of the discipline."

The [d]efendant[,] therefore had every opportunity to introduce the complained of testimony himself, and chose not to do so. I say chose because it's abundantly clear that he was fully aware of the facts. In fact, at the first trial, he also testified and he did provide that same evidence as his claimed motive for the victim to lie to the jury that convicted him at the first trial.

It was not [c]ounsel's failure to ask the question relative to [Ms. W.] that deprived the jury of that evidence. It was the [d]efendant's failure to supply it.

Counsel's performance was not deficient in this regard, nor can the [d]efendant claim prejudice based upon his own failure to provide the evidence in response to an appropriate question. He apparently changed his mind between the first and second trials as to the victim's alleged motivation to lie.

During the evidentiary hearing on the issue of introduction of character evidence, defendant's trial counsel testified that he reviewed the testimony of the two character witnesses who were called in the first trial, one of whom was a minister. The minister was in ill-health at the time of the second trial and not available. The testimony of the other witness had been determined, by counsel, to be unhelpful. Counsel testified he was not presented with any other character witnesses.

Defendant testified he had presented a list of character witnesses to trial counsel. Defendant acknowledged that two witnesses on the character witness list he prepared were actually listed as fact witnesses and were not called at trial. Defendant stated that counsel rebuffed his suggestions and said he would make the decisions as to which witnesses to call. When defendant spoke to his attorney during a hallway meeting after he had testified, he asked whether counsel was calling the anticipated character witnesses. Counsel allegedly stated it was "too late" to call character witnesses.

The trial court ruled that counsel was credible and made a reasoned decision not to call the two listed witnesses because their testimony would not aid the defense. The court believed the attorney's assertion that no additional character witnesses were offered by defendant. The motion judge concluded defendant's trial counsel was not deficient in his representation and that, in the court's assessment, the impact of the proposed witnesses would have not altered the trial result. The motion judge stated: "[T]here was a previous trial and character evidence was introduced and the outcome was the same. . . . The evidence offered by the State was the same at both trials and character evidence was insufficient to overcome it at a previous trial."

In his appeal, defendant presents two assertions. First, that the trial court erred in denying his request for an evidentiary hearing on the claim that defense counsel was ineffective for not presenting evidence of the discord between Ms. W. and defendant and second, that the trial court erred in denying defendant's petition asserting counsel's failure to call character witnesses to support his credibility, as allowed by N.J.R.E. 404(a)(1) and 608.

To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and United States v. Cronic, 466 U.S. 648, 657-58, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984), which the Supreme Court of New Jersey adopted in State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on a showing of ineffective assistance of counsel, defendant must prove both deficient performance of counsel and a "reasonable probability" that such performance affected the outcome. Fritz, 105 N.J. at 58. Under that test, defendant must specifically demonstrate "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

In evaluating defendant's claim, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, supra, at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694. Judicial scrutiny must be "highly deferential," and we must make every effort to "eliminate the distorting effects of hindsight," Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, as there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. To rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to "sound trial strategy." Ibid.

We determine no error in the motion judge's exercise of discretion to decline an evidentiary hearing regarding the Ms. W. dispute. Evidentiary hearings on PCR petitions are neither mandated, see R. 3:22-10, nor necessary to fully and properly evaluate each issue for relief asserted. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). The opportunity to introduce Ms. W.'s illmotive was presented during defendant's testimony. He chose not to do so. Defendant's PCR petition offers no other proposed witness or evidence on this issue. Thus, defendant fails to establish a prima facie case demonstrating a reasonable likelihood that his claim would ultimately succeed on the merits, see Marshall, supra, 148 N.J. at 158, particularly when considering the fact that the first trial ended in a conviction when this evidence was introduced.

As to the issue of failure to present character evidence, defendant suggests that "counsel's decision not to call character witnesses was tantamount to trial counsel not calling alibi witnesses in a case where the [defendant] has provided the trial counsel with an alibi." We reject that notion. Presentation of witnesses to attest to defendant's reputation for honesty is not equivalent to witnesses supporting an alibi defense. In this matter, the proposed witnesses offered no exculpatory evidence as to the charged offenses; they only attested to their knowledge of defendant's honesty.

A defendant's "bald assertions" that counsel was ineffective will not sufficiently satisfy defendant's burden. To properly assess trial counsel's decision not to call character witnesses, an examination of the totality of counsel's performance in the context of the State's evidence of defendant's guilt is required. See Marshall, supra, 123 N.J. at 165. The record confirms that counsel had successfully sought a reversal of defendant's first conviction and was intimately familiar with the testimony presented in the first trial. The character evidence used in the first trial proved unpersuasive in supporting defendant's credibility over that of the State's witnesses. Counsel chose not to call the two listed witnesses, who defendant alleges were character witnesses, because their weak testimony would not successfully advance defendant's theory of the case and, possibly, could cause more harm than good.

We determine the quality of counsel's performance in the second trial was not ineffective and the trial decisions made, including the decisions defendant now challenges, did not deprive defendant of a fair trial. See State v. Castagna, 187 N.J. 293, 314-15 (2006); State v. Buonadonna, 122 N.J. 22, 42 (1991). Defendant's objection to the strategic decisions made by counsel not to pursue this evidence does not satisfy the Strickland/Fritz test. See State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983) (stating that an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with counsel's exercise of judgment during the trial). Our review of the record leads us to conclude that the judge's determination to deny post-conviction relief was based on substantial credible evidence and should be affirmed. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Affirmed.

 

Counts two and four of the original indictment were dismissed.

(continued)

(continued)

11

A-4548-05T4

RECORD IMPOUNDED

May 29, 2007