STATE OF NEW JERSEY v. D.I.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2094-07T42094-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.I.,

Defendant-Appellant.

_________________________

 

Submitted February 10, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-10-1598.

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

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Lenka L. Richards, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant D.I. appeals from an order entered on November 26, 2007, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In 1998, defendant was indicted on several counts of aggravated sexual assault, child abuse and endangering the welfare of a child. Defendant's first two trials resulted in hung juries. Following a third trial, the jury found defendant guilty of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); fourth-degree child abuse, N.J.S.A. 9:6-1 and -3; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was defendant's then eight-year-old daughter, J.R.

On June 11, 2001, defendant was sentenced to three concurrent terms of twenty years subject to a ten-year parole ineligibility period on the first-degree aggravated sexual assault counts, and a consecutive seven-year term with a three-and-a-half-year parole ineligibility period on the endangering count; the fourth-degree child abuse conviction merged into the endangering count. Defendant appealed, and we affirmed his convictions and sentence. State v. [D.I.], No. A-1531-01 (App. Div. April 10, 2003). The Supreme Court denied defendant's petition for certification on July 21, 2003. 177 N.J. 495 (2003).

In our prior opinion we summarized the pertinent trial evidence, which included testimony by J.R., who "provided graphic details of the various sex acts that her father performed on her." State v. [D.I.], supra, slip op. at 4. In addition, defendant gave a statement to the police, which the trial court found to be voluntary and admissible. In that statement, defendant "confessed to sexually assaulting J.R." Id. at 3. At trial, however, defendant testified that his confession had been "scripted and coerced." Id. at 5. The State presented the testimony of Dr. Frances Pelliccia who examined J.R. on May 13, 1998, shortly after the sexual assault and testified that J.R.'s "'hymenal ring measured out to be 1.5 centimeters which is the size of an adult vaginal opening[,]' [and] . . . was consistent with penetration by an object 'wider than 1.5 centimeters.'" Id. at 3.

On February 13, 2007, defendant filed a pro se PCR petition. Counsel was assigned and, on June 27, 2007, counsel filed a brief in support of defendant's PCR petition, as well as a motion for the production of J.R.'s medical records. Defendant contended that those medical records contained information that contradicted the State's case against him; therefore, defendant argued, those records should be viewed as "newly[-]discovered evidence . . . ." Defendant further argued that his trial attorney's failure to introduce those medical records constituted ineffective assistance of counsel. The specific records defendant sought were: (1) an examination of J.R. that occurred on October 26, 1998, approximately five months after Dr. Pelliccia's examination; and (2) the record of an examination of J.R. five years earlier.

In denying defendant's request regarding the earlier examination, the PCR judge found that defendant had failed to provide "specific information as to when or where the alleged examination occurred[,]" or to identify the examining physician. The State represented that it had no information concerning such an examination. The judge concluded, therefore, that defendant had failed to provide sufficient information to establish that such an examination had occurred.

Regarding defendant's request for records of the October 1998 medical examination, the judge considered this request to be moot, stating:

Subsequent to the filing of the [p]etition, [defendant] provided the [c]ourt with a copy of the records of that examination. Perhaps the most significant portion of those records appears across the top of the front page. It is there indicated that those same records were faxed by the [p]rosecutor to [d]efense [c]ounsel prior to the first trial of this case. Insofar as those records have been in the possession of the [d]efense prior to trial, they are clearly not "newly-discovered," and do not form the basis for a new trial . . . .

Upon further examination of the October 1998 medical report, the PCR judge concluded that trial counsel had not been ineffective in failing to produce it at trial. The judge found that any discrepancy between that medical record and Dr. Pelliccia's trial testimony was, at best, an "unimportant detail" and that the jury would reasonably accord such evidence "little or no weight." The judge added:

Counsel's decision not to introduce this evidence[,] even if he had it, couldn't be considered an error, let alone an egregious one. His choice was plain and obvious. Pursue the same course that had twice proven successful or change tactics and risk strengthening his adversary's case on the hope that the jury would assign significant weight to a minor unimportant discrepancy.

The PCR judge concluded that defendant had failed to set forth a prima facie case of ineffective assistance of counsel and, therefore, was not entitled to an evidentiary hearing. The judge memorialized his decision in his order of November 26, 2007.

Defendant now presents the following issues for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NEWLY[-]DISCOVERED EVIDENCE

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR THE PRODUCTION OF MEDICAL RECORDS

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

Having thoroughly reviewed the record in light of these contentions and the controlling legal principles, we are satisfied that they lack merit. R. 2:11-3(e)(2).

When evaluating a defendant's claim of ineffective assistance of counsel, we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, a defendant must show that (1) counsel's performance was deficient and (2) this deficiency prejudiced his defense. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

The first prong of this test requires a demonstration of such serious errors that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. The second prong requires a defendant to demonstrate that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

As noted, defendant failed to provide any information regarding an examination that allegedly occurred five years earlier, and the State denied having any knowledge of such an examination. Defendant appears to have abandoned this claim pertaining to the earlier examination in his arguments on appeal. Rather, he focuses on the October 1998 examination report.

Defendant asserts that the record of J.R.'s October 26, 1998 examination clearly refutes the trial testimony of Dr. Pelliccia, who had supervised a physical examination of J.R. in May 1998. Dr. Pelliccia had equated the measurement of J.R.'s hymenal opening to a "Tanner 5," since J.R.'s measurement was beyond that of an adult. The doctor testified:

[A] Tanner Stage 1 is what every child is born into . . . . [a]nd then as they develop . . . , we go into Tanner 2 [S]tage.

. . . .

So the hymenal orifice of a child is also measured by age. And there's an estimated age at which a Tanner 1 should be. And there's an estimated age . . . at Tanner 5 which is what an adult should be.

The October 26, 1998 record was generated by J.R.'s visit to a hospital emergency room following an incident in which two male juveniles "grabbed her [and] threw her to the ground [and] 'fondled her.'" That examination stated that J.R. had "Tanner 1 genitalia . . . ."

When comparing the October 1998 hospital record with Dr. Pelliccia's trial testimony, the judge stated that the two medical evaluations were "at most, a subjective difference of opinion between two doctors over the amount and color of the victim's pubic hair upon external examination. The victim's developmental stage was not and is not material to any issue in this case." While this statement may, in part, be a mischaracterization of the medical evidence at issue, we concur with the judge's ultimate conclusion that the October 1998 record was not so clearly "exculpatory" as to give rise to a claim of ineffective assistance of counsel.

Defendant's trial counsel was in possession of the October 1998 medical record, but had declined to use it in defendant's two prior trials which resulted in hung juries. The judge regarded trial counsel's performance as reasonable, noting that such performance had previously resulted in two hung juries. Defendant failed to establish that the exclusion of the record was the result of anything other than trial strategy.

We note in this context that defendant's second argument, that this medical record somehow constitutes "newly[-]discovered evidence," flies in the face of his argument regarding ineffective assistance of counsel. On the one hand, defendant acknowledges that trial counsel knew of the existence of this record and that the decision not to proffer it at trial in an effort to rebut Dr. Pelliccia's testimony constituted ineffective assistance. On the other hand, defendant continues to characterize the 1998 record as newly-discovered evidence entitling him to a new trial. Clearly, the two arguments are mutually inconsistent.

Defendant contends that the medical records "could [not] have been discovered prior to the trial." This assertion, however, is contradicted by the record. Defense counsel received the October 26, 1998 record on November 4, 1999, as evidenced by the facsimile transmittal date stamp appearing at the top of that record referenced in the PCR hearing transcript. In fact, PCR counsel acknowledged that the October 1998 record had been in defense counsel's possession. Therefore, this medical record clearly does not constitute evidence "discovered since the trial and not discoverable by reasonable diligence beforehand[,]" and, therefore, is not newly-discovered evidence. State v. Carter, 85 N.J. 300, 314 (1981).

The October 1998 examination report was provided to defense counsel, and the earlier examination report has not been proven to exist. Therefore, defendant's additional claim that the State withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is also without merit.

In sum, we affirm the denial of defendant's PCR petition substantially for the reasons set forth by Judge Paul M. DePascale in his decision rendered from the bench on November 15, 2007.

Affirmed.

 

It is unclear why PCR counsel pursued production of the 1998 medical record that was already in defendant's possession.

(continued)

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10

A-2094-07T4

RECORD IMPOUNDED

August 20, 2009