STATE OF NEW JERSEY v. LOUIS WATLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5970-04T55970-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS WATLEY,

Defendant-Appellant.

 
___________________________________________________________

 

Argued January 23, 2007 - Decided April 5, 2007

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-01-0099.

Joel C. Seltzer argued the cause for appellant (Louis Watley, on the pro se brief).

Sara B. Liebman, Assistant County Prosecutor argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Steven J. Kaflowitz, of counsel and on the brief; Patricia L. Cronin, on the brief).

PER CURIAM

Defendant, Louis Watley, appeals the Law Division's June 17, 2005 order denying his petition for post-conviction relief (PCR). We affirm in part and remand in part for an evidentiary hearing.

Tried to a jury, defendant was found guilty on October 6, 2000, on Union County Indictment No. 98-01-0099, of first-degree aggravated sexual assault in Linden, contrary to N.J.S.A. 2C:14-2(a)(3) (count four); second-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b) (count three); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count five); and fourth-degree criminal sexual contact in Irvington, contrary to N.J.S.A. 2C:14-3(b) (count one). Defendant's convictions arise out of his relationship with the victim, N.R., who was an eighteen year old high school student, who had just begun part-time employment with defendant at the time the offenses occurred. The sexual contact for which defendant was convicted occurred at his office in Irvington on April 13, 1997. The kidnapping related to the forced transportation of N.R. in his car from Irvington to defendant's home in Linden. She was the victim of the aggravated sexual assault the same day at his Linden home. Defendant was charged with one count of sexual assault and three counts of sexual contact at his place of employment in Irvington, but was convicted of only one count of sexual contact at the Irvington office location.

Defendant was sentenced on March 9, 2001, on the first-degree sexual assault charge to an eighteen-year term of imprisonment and an eight-year concurrent term of imprisonment on the second-degree kidnapping charge. Defendant was sentenced to a five-year concurrent term of imprisonment on third-degree terrorist threats and an eighteen-month concurrent term of imprisonment on fourth-degree sexual contact. We affirmed defendant's conviction and sentence on direct appeal on April 23, 2004. State v. Louis Watley, No. A-4295-00T3. The Supreme Court denied defendant's petition for certification, 180 N.J. 458 (2004).

Defendant filed a petition for PCR before the trial judge on June 12, 2005. After a hearing, in which defendant presented his arguments pro se, the judge denied defendant's petition for PCR. This appeal followed. Defendant filed a pro se brief before retaining counsel, who argued this appeal.

The testimony of N.R. was recited in our decision on direct appeal, which we repeat herein.

The victim, eighteen year old N.R., testified that she was working in defendant's office in Irvington on Sunday, April 13, 1997, when defendant grabbed her, pulled her, "started to rub [her] breast" and "butt," took her jean shirt and tee shirt off, "unsnapped [her] overalls buckles," pulled down her pants and underpants, and pushed her to the floor onto her back. Defendant then removed his pants and underpants, kissed her, and forcibly "put his penis in [her] vagina," even though she was menstruating that day.

According to the victim, defendant then told her he had to "get some kind of paperwork" from his home, "grabbed" her wrist and pulled her to his car. She neither said anything nor yelled out because she was "afraid."

At defendant's house, in Linden, defendant pulled her to a bedroom where he kissed her, threw her on the bed, removed her clothes, performed sexual acts and then penetrated her vagina with his tongue and penis. N.R. thereafter returned to the office, and because "on the way back . . . [defendant] told [her] he would kill me" if she told anyone of the attack, she remained silent. Defendant had further sexual contact with her in the office that day, and again threatened to "kill" her if she told anybody. Even though she was upset and crying when she arrived home that evening, she did not tell anyone "[b]ecause [she] was scared," and did not want to report the event in light of her "culture and religion," as she would be considered a "bad person" and would "bring dishonor to [her] family."

According to N.R. further sexual contact occurred at work on subsequent days, and she was again threatened and warned not to tell about it.

N.R. was crying when she returned home from work on April 19, 1997, after "[running] out" when told that defendant and she were going back to his house "to have some fun." Later that day, she ultimately told her mother about the attacks and reported the incidents to the Irvington and Linden Police Departments.

The parties introduced testimony to corroborate and dispute the victim's testimony. Defendant did not testify on his own behalf.

The additional testimony included the following: On April 18, 1997, N.R., her sister, T.R., and brother, M.R., went to the Linden Police Station and met with Detective (Det.) Evans, who took photographs, interviewed N.R. and went to N.R.'s home where he obtained the clothes N.R. was wearing on April 13, 1997. Those clothes included panties, denim jeans, and two shirts. The panties had blood stains and were submitted to the Union County laboratory for analysis. N.R. showed Evans an abrasion on her hand and a few days later the place on her neck and back where marks, which were no longer visible, had been inflicted.

On April 21, 1997, Det. Evans gained entrance to defendant's house pursuant to a court order and photographed and seized a bed sheet and clothing. Evans testified to two photographs, which he indicated depicted "some discolorations, possible stains [on defendant's bed] sheet." When asked to describe what the stains looked like, Evans stated, "[i]t's a discoloration similar to that of dried blood."

On April 30, 1997, N.R. met with Dr. Linda Shaw, a pediatrician and medical expert in the field of abuse, who conducted a gynecological examination of N.R., which showed no signs of infection, injury or healing areas. Dr. Shaw testified she did not expect to have medical findings seventeen days post assault because the vaginal mucous membranes heal quickly, nor would she expect N.R. to be complaining of pelvic discomfort two and a half weeks after forcible rape. Dr. Shaw opined that the fact that the hymenal ring was not disrupted was not inconsistent with forcible rape because the ring is expansible.

Dr. Richard Bodner, an expert in gynecology, testified for defendant that based on Dr. Shaw's medical report that indicated N.R.'s hymen was intact and showed no signs of abrasions or lacerations, and because N.R. felt no pelvic discomfort, it was his opinion N.R. was not the victim of a forced penetration.

Dr. Christine Baker, a clinical psychologist, testified about post-traumatic stress disorder (PTSD) and major depressive disorder and how these recognized diagnoses affect persons suffering from a traumatic event. While giving testimony outside the jury's presence, Dr. Baker initially testified that when N.R. was asked if she was raped, she spoke of more than one incident and when she and N.R. spoke of penetration, N.R. reported only one occasion. After being asked to review her report to refresh her recollection, she testified that N.R. disclosed one act of penetration in Irvington and one in Linden. On cross-examination, Dr. Baker clarified that N.R. told her she was fondled, touched and kissed in Irvington.

In order not to inconvenience her, Dr. Baker was asked to give rebuttal testimony outside the presence of the jury for potential use if the defense psychiatrist testified and rebuttal was warranted. In her rebuttal testimony, Dr. Baker testified that N.R. told her she was assaulted both in Irvington and Linden on April 13, 1997, but was penetrated only once.

The defense psychiatric expert, Dr. Richard Latimer, testified that N.R. told him, when asked "three times," that she was penetrated only once. However, Dr. Latimer testified that N.R. informed him that she was "confused" when she told him previously that she had been "raped" only once when asked about a sexual assault in defendant's office. Dr. Baker was never recalled before the jury and her rebuttal testimony was not read to the jury.

Mr. Joseph LaRue, a principal forensic scientist with the New Jersey State Police, was the State's expert in DNA analysis profiling. After completing the DNA profiles of both N.R. and defendant, LaRue extracted samples of the bed sheet and was able to retrieve and determine the DNA of defendant. He could not exclude or confirm N.R. as a contributor. Defendant's DNA was not found on N.R.'s panties.

Dr. Robert Shaler was qualified as the defendant's DNA expert. Dr. Shaler acknowledged that defendant's DNA was on the stain on the bed sheet but testified that while N.R. could not be excluded as a contributor to the stain, 215 other profiles were possible.

Defendant presents the following arguments for our consideration.

POINT I.

PCR COURT ERRED IN DENYING DEFENDANT RELIEF OR AT LEAST [A] HEARING WHERE IT WAS CLEAR STATE OBSTRUCTED JUSTICE AND DELIBERATELY MISREPRESENTED THE TRUTH AT TRIAL CONCERNING BLOOD EVIDENCE AS WELL AS INEFFECTIVE ASSISTANCE OF COUNSEL CONNECTED WITH THE SAME.

A. PROSECUTORIAL MISCONDUCT SURROUNDING BLOOD EVIDENCE.

B. INEFFECTIVE ASSISTANCE OF COUNSEL SURROUNDING BLOOD EVIDENCE.

C. MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED SEROLOGIC EVIDENCE.

POINT II.

PCR COURT ERRED IN DENYING DEFENDANT RELIEF OR AT LEAST A HEARING WHERE IT WAS CLEAR STATE MADE IMPROPER COMMENTS AT TRIAL AND SUMMATION WHICH WERE DESIGNED TO DESTROY THE CREDIBILITY AND TESTIMONY OF DEFENSE EXPERT, DR. BODNER, AS WELL AS INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THE SAME.

A. COMMENT 1: CLAIM BASED ON PROSECUTORIAL COMMENT AT SUMMATION CONCERNING PAID EXPERT.

B. COMMENT 2: CLAIM OF PROSECUTORIAL ERROR AT TRIAL AND SUMMATION CONCERNING FABRICATED TESTIMONY.

C. COMMENT 3: CLAIM OF PROSECUTORIAL ERROR AT SUMMATION CONCERNING CONTRIVED EXPERT TESTIMONY.

D. INEFFECTIVE ASSISTANCE OF COUNSEL AND IMPROPER COMMENT.

POINT III.

THE PCR COURT ERRED IN FAILING TO GRANT DEFENDANT RELIEF OR AT MINIMUM A HEARING WHERE BRADY MATERIAL EVIDENCE PRESENTED TO COURT ESTABLISHED THAT DEFENDANT WAS UNFAIRLY CONVICTED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTION RIGHT TO DUE PROCESS AND FAIR TRIAL AS WELL AS INEFFECTIVE ASSISTANCE OF COUNSEL CONNECTED WITH THE SAME.

A. BRADY VIOLATION ONE - INCONSISTENT STATEMENT.

B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CONNECTED WITH INCONSISTEN[T] STATEMENTS OF [N.R.]

C. BRADY VIOLATION TWO - SELF INFLICTED INJURIES.

D. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CONNECTED WITH SELF-INFLICTED INJURIES OF [N.R.]

POINT IV.

THE PCR COURT ERRED IN DENYING DEFENDANT POST-CONVICTION RELIEF OR AT MINIMUM A HEARING, WHERE AS HERE, DEFENDANT['S] TRIAL ATTORNEY FAILED TO INVESTIGATE OBVIOUS SIGNIFICANT AVE[NUES] OF DEFENSE, INCLUDING THE INTERVIEWING AND CALLING OF WITNESSES AND OTHERS WHO WOULD HAVE DIRECTLY EXCULPATED DEFENDANT, UTTERLY DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, TO DUE PROCESS AND A FAIR TRIAL.

A. INEFFECTIVE ASSISTANCE OF COUNSEL WHERE FAILURE TO ADVOCATE RESULTED IN CONFLICT OF INTEREST.

B. INEFFECTIVE ASSISTANCE OF COUNSEL WITH THE FAILURE TO FILE A TIMELY NEW TRIAL MOTION.

C. INEFFECTIVE ASSISTANCE OF COUNSEL WITH THE FAILURE TO CONFRONT STATISTICAL EVIDENCE.

D. INEFFECTIVE ASSISTANCE OF COUNSEL WITH THE FAILURE TO REQUEST MENTAL HEALTH REPORTS.

E. COUNSEL RENDERED DEFICIENT PERFORMANCE WITH THE FAILURE TO MOVE FOR DISMISSAL OF THE INDICTMENT.

POINT V.

PCR COURT ERRED IN DENYING HEARING WHERE UNCERTIFIED TRANSCRIPT VOLUMES WHICH WERE DELIBERATELY ALTERED BY THE STATE WERE IN QUESTION.

In his reply brief, defendant makes the following points:

POINT I.

PCR COURT INCORRECTLY DENIED DEFENDANT'S CLAIMS FOR RELIEF BASED UPON FALSE BLOOD EVIDENCE.

A. PROSECUTORIAL MISCONDUCT SURROUNDING BLOOD EVIDENCE.

B. INEFFECTIVE ASSISTANCE OF COUNSEL SURROUNDING BLOOD EVIDENCE.

C. MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED SEROLOGIC EVIDENCE.

POINT II.

PCR RELIEF WAS WARRANTED REGARDING THE PROSECUTOR'S COMMENTS AT TRIAL AND SUMMATION RELATING TO DR. BODNER'S TESTIMONY.

A. COMMENT I: CLAIM BASED ON PROSECU-TORIAL COMMENT AT SUMMATION CONCERNING PAID EXPERT.

B. COMMENT II: CLAIM OF PROSECUTORIAL ERROR AT TRIAL AND SUMMATION CONCERNING FABRICATED TESTIMONY.

POINT III.

PCR COURT INCORRECTLY DENIED DEFENDANT'S CLAIMS FOR RELIEF BASED ON BRADY VIOLATIONS.

A. BRADY VIOLATION ONE - INCONSISTENT STATEMENT.

B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CONNECTED WITH INCONSISTEN[T] STATEMENTS OF [N.R.].

C. BRADY VIOLATION TWO - SELF INFLICTED INJURIES.

D. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CONNECTED WITH SELF-INFLICTED INJURIES OF [N.R.].

POINT IV.

THE PCR COURT IMPROPERLY DENIED DEFENDANT AN EVIDENTIARY HEARING.

POINT V.

PCR COURT FAILED TO ADDRESS PETITIONER'S FOR TRIAL TRANSCRIPT VOLUME VERIFICATION AND CERTIFICATION.

Our review of the record, in light of the written arguments advanced by counsel and by Louis Watley, pro se, discloses that these contentions are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), with the exception of defendant's claim of ineffective assistance of counsel with respect to the serological evidence that was presented at trial.

"Although Rule 3:22-1 does not require evidentiary hearings to be held on PCR petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of counsel claims if a defendant has presented a prima facie claim in support of [PCR.]" Ibid.

To establish a prima facie claim of ineffective assistance, our Supreme Court held a defendant

must demonstrate the reasonable likelihood of succeeding under the test set forth [by the United States Supreme Court] in [Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698] and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657, which [it] adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland-Cronic-Fritz, standard, the first issue is whether counsel's performance was deficient. . . . The second . . . is whether there exist "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different."

[Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]

The Supreme Court in Preciose reiterated that ineffective-assistance-of counsel claims are encouraged to be raised in PCR proceedings. Id. at 460. The Court also made clear that ineffective assistance claims are more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required for the court to determine whether the defendant can satisfy the two-pronged test required by Strickland and Fritz. Id. at 462.

Defendant alleges ineffective assistance of counsel because trial counsel agreed to the reading of a stipulation by the court to the jury concerning serologic testing of defendant's and N.R.'s blood.

In the prosecutor's opening statement, she made the following proffer to the jury.

You're going to hear testimony from the police officer who investigated the case, who photographed the evidence, who collected the evidence. You're going to hear testimony, ladies and gentlemen, that evidence was seized from [L.W.'s] residence. That evidence consisted of, among other things, a stained bed sheet stained with blood and semen. You're going to hear that in fact [N.R.] was menstruating during the time of the sexual assault incident. That bed sheet was subsequently tested, DNA testing.

You're going to hear evidence that her blood group, her blood type was found on the bed sheet.

Det. Evans stated that a fitted bed sheet was seized from defendant's Linden home. He testified concerning two photographs, which showed discolorations or possible stains on the bed sheet. Det. Evans opined that the discolorations were "a discoloration similar to that of dried blood. That's what I thought it might have been." He also testified to blood and saliva samples obtained from N.R. by Dr. Shaw on April 30, 1997, which were transported by him to the prosecutor's office laboratory. He further stated that blood and saliva samples that he observed being taken from defendant by a phlebotomist, pursuant to court order, were likewise transported by him to the laboratory for testing. Det. Evans further indicated that he took N.R.'s panties to the laboratory, so that any blood on the panties could be used to compare with the blood that was found on the bed sheet that was recovered from defendant's home.

In N.R.'s direct testimony, she testified that she was menstruating on the date that the alleged sexual assaults occurred. During direct examination, N.R. was shown two photographs and asked "What are they?" N.R. answered, "those are bed sheet and my blood on it."

During the State's case, the court was asked by defense counsel and the prosecutor to read a stipulation into the record. The following stipulation was read by the judge:

The State and defense have entered a stipulation in this trial. Again a stipulation is an agreement made by and between the, the State and the defense. You may consider the stipulation as evidence in this trial.

The State and defense agree that on April 24th, 1997 the white fitted bed sheet recovered from [L.W.'s] residence and the blood stained underwear worn by [N.R.] on April 13th, 1997 were transported to the Union County Prosecutor's Office laboratory for analysis.

The State and defense also agree that on May 1st, 1997 blood and saliva samples taken from [N.R.] were transported to the Union County Prosecutor's laboratory for analysis. And on July 3rd, 1997 blood and saliva samples were taken from [L.W.]. All items were collected by and transported and submitted into the Prosecutor's Office laboratory by Detective Mark Evan of the Linden Police Department.

The State and defense both agree that analysis conducted on the white fitted bed sheet seized from [L.W.'s] residence indicated that semen and human blood were detected on the sheet. Both the State and defense agree that no semen was detected in the underwear.

The State and defense agree that analysis conducted on the known blood and saliva samples for [L.W.] and [N.R.] indicated that [N.R.] is an A blood group while [L.W.] is a B blood group. The analysis -- analyses were conducted by Senior Forensic Chemist Donna Hansen of the Union County Prosecutor's Office laboratory. All evidence was maintained at the Union County Prosecutor's Office laboratory until it was transported to the New Jersey State Police laboratory in West Trenton, New Jersey for DNA analysis.

The State and defense agree that on March 6th, 1998 [N.R.'s] blood sample, [L.W.'s] blood sample and the stained and unstained specimen cut out of the bed sheet from [L.W.'s] residence were transported from Union County Prosecutor's Office laboratory to the New Jersey State Police laboratory in West Trenton, New Jersey for DNA analysis. Detective Sandra Walker of the Union County Prosecutor's Office Major Crime Unit transported the specimens to the State Police laboratory. Those specimens were subsequently analyzed by Principal Forensic Scientist Edward J. LaRue of the New Jersey State Police laboratory.

The prosecutor argued in summation:

The bottom line is that [N.R.] was at that house. [N.R.] was raped in that bed. That blood stain is [N.R.'s]. . . . [Detective Evans] goes to the house on the 21st and he finds the blood stained sheets, and he finds things that [N.R.] told him would be there.

The testimony by both the State and defense forensic scientists was inconclusive as to N.R.'s DNA in the blood samples taken. We are satisfied, however, that the stipulation as to the blood group of N.R. and defendant, when combined with defense counsel's failure to object to the proffer in the prosecutor's opening statement that the jury was going to hear evidence that N.R.'s blood group was found on the bed sheet, the failure to object to Det. Evans' lay opinion as to what the discoloration on the bed sheet represented, the failure to cross-examine N.R. with respect to her testimony that the photographs she was asked to identify represented her blood on the bed sheet and the failure to object to the prosecutor's closing statement that the blood stain was N.R.s raise a prima facie case of ineffective assistance of counsel under the Strickland standard. Strickland, supra, 466 U.S. at 687, 104 S. Ct. 2064, 80 L. Ed. 2d at 693.

It may well be that counsel agreed to the stipulation as to blood group for sound reasons of trial strategy and for that reason did not require the State to produce Donna Hansen, the forensic chemist, who did the blood testing before the blood grouping identification could be placed before the jury. We note that our review of the record does not reflect direct correlation of N.R.'s and defendant's blood grouping to blood found on the bed sheet from the bedroom in defendant's Linden residence. Nonetheless, we are of the view that the jury could have drawn that inference on an unreasonable basis, particularly in light of the prosecutor's opening statement, the testimony of Det. Evans and N.R., and the prosecutor's closing argument.

We are satisfied, therefore, with respect to the serologic evidence, that defendant made out a prima facie case of ineffective assistance as contemplated by Preciose and that the trial court erred in failing to grant an evidentiary hearing to determine whether defendant can satisfy the two-pronged test for ineffective assistance required by Strickland and Fritz.

Accordingly, we affirm the trial court's denial of defendant's petition for PCR, except for defendant's claim of ineffectiveness with respect to his trial counsel's treatment of the blood evidence produced at trial including the stipulation the judge read to the jury. We remand this claim to the trial court for an evidentiary hearing and a new determination of the merits of that claim. We do not retain jurisdiction.

 
Affirmed in part and remanded in part.

(continued)

(continued)

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A-5970-04T5

 

April 5, 2007