STATE OF NEW JERSEY v. WILLIAM GRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3612-06T43612-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM GRAY, a/k/a WILLIAM J.

GRAY,

Defendant-Appellant.

_________________________________

 

Submitted January 6, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-06 641.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant William Gray appeals the second denial of his petition for post-conviction relief (PCR). We affirm.

I.

The following procedural and factual background informs our decision on this appeal.

A.

In 1999, a jury convicted Gray of the following offenses: second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (count 1); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) (count 2); two counts of fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts 3 and 4); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(b) (count 5); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4) (count 6); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(3)(b) (count 7); and two counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (counts 8 and 9).

Following the jury verdict, Gray alleged that his trial counsel, Robert Seelenfreund, was ineffective. As a result, Michael Ignatoff was assigned to take over Gray's case. Gray's motion for a new trial was denied. The State's motion for imposition of an extended term as a persistent offender was granted. After merging some of the offenses, the trial judge sentenced Gray to an aggregate of fifty years in prison, with nineteen years of parole ineligibility, plus applicable penalties and fees. We affirmed the conviction and sentence on July 16, 2001. State v. Gray, No. A-2878-99T2 (App. Div. July 16, 2001). The Supreme Court denied certification. State v. Gray, 171 N.J. 445 (2002).

On June 23, 2002, Gray filed a verified petition for PCR. The trial judge heard oral argument, but decided that an evidentiary hearing was necessary. Following hearings on February 18 and 19, 2004, the judge denied Gray's PCR petition. Gray appealed and we remanded for a supplementary evidentiary hearing, pursuant to State v. Preciose, 129 N.J. 451 (1992), based on newly discovered evidence relating to an exculpatory witness. State v. Gray, No. A-4923-03T4 (App. Div. July 8, 2005) (Gray II).

B.

In our opinion ordering the remand hearing, we outlined the strategy at Gray's trial as follows:

Defendant's prosecution was based upon evidence that he had sexually molested T.W., whom we will fictitiously call Tina, from 1991 when Tina was eleven years old until discovery of his conduct in January 1997. At trial, Tina claimed among other things that sexual penetration had occurred, commencing in 1994. Gray denied that fact, although admissions of kissing and fondling by him were presented. The focus of the defense at trial, as recognized by the PCR judge, was on gaining an acquittal on the first-degree sexual penetration charge.

[Gray II, supra, slip op. at 3.]

The initial PCR hearing had focused on allegations that trial counsel had been ineffective for failing to investigate and call a witness named Martin, whose first name was referred to as either Bayshiel or Bashir, whom Gray contends would have testified that he had sexual relations with Tina. The PCR judge concluded that Seelenfreund was not ineffective and that, in any event, Martin's purported testimony would not have changed the result.

We explained the need for a remand hearing as follows:

We view the evidence in a somewhat different light. As the PCR judge recognized throughout his oral opinion, the primary focus of the defense was on the issue of whether defendant had penetrated Tina's vagina. Defendant stated that he had not, and no statement by him that was admitted at trial suggested otherwise. Tina disagreed. She testified additionally that she had not had intercourse with anyone else. Thus, evidence that her hymen was ruptured was strongly suggestive of defendant's guilt on the first-degree charge. If, however, Martin had testified to having had sexual intercourse with Tina, the probative value of evidence of a ruptured hymen would have substantially decreased. We thus do not regard Martin's testimony as relevant merely to Tina's credibility when she stated that she had sex only with defendant. It directly affected the value of Tina's ruptured hymen as evidence of defendant's guilt and the credibility of defendant's denial of acts of penetration - a principal issue at trial.

We also find significant the fact that Martin remained alive for two years following defendant's trial, and an attempt could have been made to call him as a witness during this period, but was not. We find the judge to have been mistaken in his reliance on State v. Bunyan, 154 N.J. 261 (1998) when analyzing the post-trial admissibility of information conveyed by Martin. In Bunyan, the issue was not whether post-conviction relief should be granted, as it is here, but rather whether defendant should be afforded a new trial on the basis of new evidence in the form of an alleged exculpatory statement by a deceased witness. In the present case, the PCR judge's focus should have been on the status of Martin at the time the allegedly incompetent representation occurred, not Martin's present status. As the judge acknowledged, the testimony then would have been admissible.

We are also troubled by the lack of testimony at the PCR hearing from Ignatoff. If, as the judge found, Martin did not appear until trial testimony had been concluded, and if the investigator's subsequent report of his interview with Martin was in the file, then the reasons for Ignatoff's failure to include Martin's testimony as newly-discovered evidence in the new trial motion filed substantially after the investigation occurred require exploration. It may be that strategic considerations motivated Ignatoff, and it may be that Ignatoff's testimony will shed further light on when Martin appeared to testify and whether his proposed testimony could in the circumstances be regarded as newly discovered evidence. Answers to these questions may suggest a need to further examine any strategic choices made by Seelenfreund, his ability and obligation to locate Martin - an identified witness - during trial, his obligation to bring the investigator's report of his conversation with Martin to Ignatoff's attention and the competence of his representation, and the probable effect of any failings in that regard on the outcome of the proceedings.

In any event, we find a remand for a further hearing pursuant to State v. Preciose, 129 N.J. 451 (1992) to be warranted in this case, so that a sufficient factual foundation can be established for the court's consideration of the ineffective assistance of counsel argument presented on defendant's behalf under standards established in Strickland v. United States, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 659 (1984) and State v. Fritz, 105 N.J. 42 (1987).

[Id. at 11-14 (footnotes omitted).]

We also remanded for consideration of whether PCR counsel had appropriately assisted Gray in presenting the points he sought to raise on PCR. See State v. Rue, 175 N.J. 1 (2002).

The trial judge held the remand hearing on December 5 and 6, 2006. Seelenfreund and Ignatoff testified at the hearing. Seelenfreund testified that Ignatoff had been chosen to replace him "[b]ecause there had been complaints made about [his] performance by several people in the community who had some reputation and clout and [his supervisor] thought [the] office would be best served if [he] was removed from the case." Seelenfreund acknowledged that he had Parkinson's disease at the time and it was affecting his memory. However, he also stated that only his short-term memory was influenced and that his overall performance was not affected. In addition, he did not believe that his Parkinson's medication altered his ability to represent Martin.

Seelenfreund testified that he had two or three pre-trial meetings with Gray and had spoken to Gray during court appearances, referring to a record kept with the case file. Seelenfreund also testified as to other trial preparation in which he had engaged, such as legal research, preparing motions, and receiving and reviewing discovery. Seelenfreund believed that, throughout the pretrial preparation, Gray made no mention of Martin. According to Seelenfreund, Martin first appeared in court during jury deliberations, two or three days after he had first heard of Martin from Gray. Seelenfreund testified that he had relied on Gray's statements that he would produce Martin at the courthouse, and that Gray had not indicated that he required assistance in doing so. Seelenfreund recalled that Gray was not in custody at the time of the trial, and that he had no reason to believe that he would need to subpoena Martin.

Seelenfreund testified that he met with Martin, stating that the interview lasted approximately twenty minutes. When questioned as to whether he had concerns about Martin's credibility, Seelenfreund stated that he "did have those concerns but they weren't pressing because [he] didn't believe it possible to call Mr. Martin at the instant trial." Seelenfreund stated that Martin was "reluctant to divulge information" about his relationship with Tina and Martin "didn't appear to be the most forthcoming witness." Seelenfreund acknowledged that he did not write a memo, or include anything in the case file, to inform Ignatoff that he had met and interviewed Martin.

After Gray was convicted, Seelenfreund testified that he requested that an investigator interview Martin and Nicole Totley, Tina's cousin. Around the same time, Seelenfreund drafted a notice of motion for a new trial based on newly discovered evidence. Seelenfreund learned from the investigator's report that Totley knew that Tina had dated Martin, but that she had no knowledge of sexual relations between the two. The report also stated that Martin acknowledged having sexual relations with Tina. Seelenfreund testified that the investigator's report was included in the case file.

When Ignatoff testified, he was questioned about a letter that he sent to the chief investigator at the Public Defender's office, dated July 21, 1999. The letter requested an investigator's assistance in procuring, among other things, Martin's signature on a certification stating that he had a relationship with Tina and that they engaged in penetrative sexual intercourse. The letter noted that the certification was important because Tina had testified that she only had penetrative sexual intercourse with Gray. Aside from the July 21 letter, Ignatoff had no recollection of any further requests for investigation of or follow-up with Martin.

Ignatoff also testified about a letter dated August 9, 1999, from Investigator Joseph Jackson of the Public Defender's office. The letter detailed Jackson's attempts to have Martin sign the certification. According to Ignatoff, Jackson went to Martin's address and "was told by someone he identifie[d] as Mr. Martin's cousin that Mr. Martin had nothing to say to us and did not wish to participate in the matter any further." Jackson's report was entered into evidence. It also showed that he made three attempts to reach Martin on July 23rd, August 2nd, and August 4, and had been told by Martin's family members that Martin did not want to be involved with the investigation.

Ignatoff testified that, during his representation of Gray, he did not recall having any conversations with Seelenfreund and that he did not recall reviewing the transcripts from Gray's trial. He testified that he may have spoken with Seelenfreund's supervisor at the Public Defender's office.

On cross-examination, Ignatoff confirmed that the billing information related to Gray's case indicated that he had reviewed the file on several occasions and that he met with Gray in jail to review the case and discuss the motion for a new trial. The billing information detailed Ignatoff's activity in Gray's case from June 10, 1999 to October 4, 1999, except that the page reflecting work done between July and September had been lost. Ignatoff explained his lack of recollection by testifying that he was first interviewed about his representation of Gray slightly more than seven years after he had first been assigned to the case.

The PCR judge noted that he found Seelenfreund's testimony credible and that "there is nothing . . . in this record or in the first PCR hearing to show that in fact Mr. Martin came in during a testimonial portion of the trial or during summation." The judge also found, as he had at the first PCR hearing, that while Seelenfreund "suffered from Parkinson's disease, it was in its early stages and [the disease] did not affect his memory."

Relying on the testimony and Jackson's report, the judge found that Seelenfreund was not ineffective by not having Martin testify because Martin was an unwilling witness:

It is clear from the testimony that the defendant said he would produce Mr. Martin and it is abundantly clear that the defendant only gave the name of Mr. Martin with no address except for the projects in Jersey City . . . .

If the defendant had the address for Mr. Martin or knew of the substance of his testimony, the defendant failed, I find, to let Mr. Seelenfreund know that. This accounts for why as Mr. Seelenfreund testified he was surprised and frustrated by the fact that Mr. Martin was not produced until the jury was in deliberations and that the case could not be reopened. I reject the testimony that Mr. Martin was a willing witness who came in on his own to testify. This I find is supported by Mr. Jackson's report dated August 9, 1999, . . . where he states he was told by two relatives of Mr. Martin that Mr. Martin did not want to be involved. Furthermore, the investigator I find returned three more times, left his business card and spoke to people in the neighborhood about Mr. Martin but in fact Mr. Martin never responded to those efforts as well.

The same is true as to Ms. [Totley]. [The first investigator] in his report . . . indicated that Ms. [Totley] had no knowledge of the sexual activity between the defendant and the victim. If anything, this shows and supports why Mr. Seelenfreund would not give the names of these potential witnesses to the prosecutor even after Mr. Gray provided the names to him.

It also supports his testimony that they would not provide names without having verification of what [the witnesses] would say specifically. . . .

There is nothing in this record to show that Mr. Seelenfreund was ineffective in representing the defendant or failing to produce Mr. Martin or Ms. [Totley] since they were going to be produced by the defendant and since the defendant had failed to provide their names until late in the trial.

The judge reiterated that even if Martin and Totley had testified at Gray's trial, it would not have changed the outcome "considering the evidence and multiple types of acts of penetration over several years . . . the jury could have convicted and would have convicted the defendant on the other acts of penetration should they believe the victim."

The judge also found that Ignatoff's representation of Gray was not ineffective:

The petitioner asserted that Mr. Ignatoff was ineffective in failing to take proper steps to locate Mr. Martin and file a motion for a new trial based on his alleged sexual relations with the victim.

Mr. Ignatoff, I find and as previously stated, adequately represented Mr. Gray on that motion for a new trial. Mr. Ignatoff's billing records indicate he had knowledge of [the first investigator's] interview with Mr. [Martin] and that he had acted upon that knowledge. Mr. Ignatoff prepared a certification for Mr. Martin to sign that Martin [had] sexual intercourse with the victim. The language contained in the certification was identical to the language contained in [the first investigator's] report. Mr. Ignatoff prepared those certifications.

Furthermore, Mr. Ignatoff requested that an investigator from the Public Defender's Office locate Mr. Martin to have him sign those certifications. On three occasions the investigator attempted to reach Mr. Martin at his home but was told he did not wish to cooperate or sign any statement. Furthermore, the investigators left their contact information for Mr. Martin and canvassed the neighborhood in an attempt to locate him. The evidence clearly indicates Mr. Ignatoff adequately represented the petitioner through his efforts and attempts to contact Mr. Martin.

On January 5, 2007, the PCR judge denied the petition for a second time. This appeal followed.

II.

On appeal, Gray raises the following issues in his primary brief:

DEFENDANT'S PCR PETITION SHOULD HAVE BEEN GRANTED AND HIS CONVICTIONS MUST BE REVERSED, BECAUSE COUNSELS' INEFFECTIVENESS FOR NOT INVESTIGATING AND/OR PRODUCING AN EXCULPATORY WITNESS TO TESTIFY FOR THE DEFENSE VIOLATED THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND/OR PRODUCE BAYSHIEL MARTIN AS A WITNESS.

B. [MOVANT'S] COUNSEL FAILED TO ADEQUATELY INVESTIGATE BAYSHIEL MARTIN.

He raises the following issues in a supplementary brief:

POINT ONE: THE LOWER COURT'S FINDINGS THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IS ERRONEOUS.

POINT TWO: PCR COUNSEL'S FAILURE TO PROVIDE ADEQUATE ASSISTANCE BELOW DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE.

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

B.

"Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson, 153 N.J. 318, 341 (1998)). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (internal citation omitted); see also Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994) ("[I]n our review of the results of a bench trial the factual findings of the trial judge, his assessments of credibility, and the discretionary decisions he may have made are entitled to great deference." (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974))). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

C.

The gist of Gray's appeal is that the PCR judge erroneously concluded that Seelenfreund and Ignatoff were not ineffective during the trial and post-trial proceedings, arguing that they were in fact ineffective because they failed to present Martin's purported exculpatory evidence. Our review of the record, in light of our standard of review, convinces us otherwise.

There was evidence in the record, found to be credible by the PCR judge, that Gray did not provide sufficient information to Seelenfreund to enable him to contact Martin directly, and that, in fact, Gray undertook to procure Martin's attendance at a time when he was not incarcerated. There is also credible evidence that Martin did not appear at the courthouse until the testimony had been completed, the jury had been charged, and the jury's deliberations were underway. Finally, there was evidence to support Seelenfreund's opinion that Martin "didn't appear to be the most forthcoming witness" and that he was "reluctant to divulge information." With respect to Totley, there was credible evidence that she had general knowledge that Tina and Martin dated, but she did not have any specific knowledge of the nature of their sexual relationship. As outlined in our remand opinion, the issue of sexual penetration by someone other than Gray was the crucial issue related to Martin's role as a potential witness.

Similarly, there is evidence to support the judge's conclusion that Ignatoff made reasonable efforts to contact Martin and gain his assistance. There is also evidence that Ignatoff's conclusion that Martin did not wish to cooperate was reasonable. In fact, it reflects Seelenfreund's prior experience with Martin. We find no fault with Ignatoff's effort to have Martin certify to his proposed testimony, given the uncertain nature of his level of cooperation and the need to have such a certification to support a motion for a new trial on that basis.

Having reviewed Gray's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).

Consequently, we affirm the denial of Gray's petition for post-conviction relief.

Affirmed.

 

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A-3612-06T4

March 31, 2010