STATE OF NEW JERSEY v. M.R.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
0 DOCKET NO. A-0089-11T3
STATE OF NEW JERSEY,
November 18, 2014
Argued March 12, 2014 Decided
Before Judges Grall, Waugh and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-05-946.
Barry H. Evenchick argued the cause for appellant (Walder, Hayden & Brogan, P.A., attorneys; Mr. Evenchick and Peter G. Bracuti, on the brief).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).
The opinion of the court was delivered by
In these appeals, defendant M.R. asks us to reverse a judgment of conviction of two counts of sexual assault and one count each of criminal sexual contact and simple assault, crimes he committed against his wife, for which he was sentenced to an aggregate five-year prison term and ordered to comply with the registration and reporting requirements of Megan's
Law. Defendant argues that his trial was plagued by errors that occurred at nearly every phase: during jury selection, because the case was tried on the anniversary of the September 11 attacks and his trial counsel did not adequately question prospective jurors about possible prejudice; throughout the State's case, due to the prosecutor making unduly prejudicial remarks in his opening and closing statements, conducting an improper examination of the victim, and withholding exculpatory evidence; during the victim's testimony, when she referred to her domestic violence case and during a nurse's testimony, when she gave improper expert testimony; and during jury deliberations, because the court waited until after the jurors returned a verdict before granting defendant's motion to dismiss a kidnapping charge.
Defendant also argues that he was wrongfully denied bail pending appeal and that his petition for post-conviction relief (PCR) was wrongly denied.
Having considered defendant's arguments in light of the record and controlling law, we conclude that defendant's trial was not perfect, but the errors that did occur were not clearly capable of producing an unjust result. We also conclude that there is no reasonable probability that, but for trial counsel's alleged errors, the result of the trial would have been different. For those reasons, we affirm defendant's convictions and the order denying his PCR petition.
The procedural history of this case is uncomplicated. Defendant married a young Moroccan woman, to whom we will refer to by the pseudonym Sonja to protect her privacy. Within five months of coming to America with defendant, Sonja left him twice, the second time after attempting to reconcile. Following her second departure, a grand jury charged defendant in a six-count indictment with two counts of kidnapping, N.J.S.A. 2C:13-1(b)(2); two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1); criminal sexual contact, N.J.S.A. 2C:14-3(a); and aggravated assault, N.J.S.A. 2C:12-(b)(7). According to the allegations and dates in the indictment, defendant committed the offenses of kidnapping, sexual assault, criminal sexual contact, and aggravated assault during the time he and Sonja were together before she first left him; and the offenses of kidnapping and sexual assault during the month following Sonja's return in an effort to reconcile.
During defendant's trial, at the close of the State's evidence, defendant moved for a judgment of acquittal. The court reserved decision on the kidnapping counts and denied the motion as to the other counts. Defendant presented no witnesses. The jury found defendant guilty of one count of kidnapping, both counts of sexual assault, criminal sexual contact, and simple assault as a lesser-included-offense of aggravated assault. The jury found defendant not guilty of the second kidnapping count.
Following the verdict, defendant moved for a judgment of acquittal or a new trial. The court acquitted defendant of the remaining kidnapping offense, but otherwise denied the motion. On the same day, the court sentenced defendant on the two sexual assault counts to concurrent five-year custodial terms subject to the No Early Release Act, N.J.S.A. 2C:43-7.2; imposed a special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4; and ordered defendant to comply with the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2. On the criminal sexual contact count, the court imposed a concurrent custodial term of eighteen months. On the simple assault count, the court imposed a concurrent custodial term of six months. The court also imposed appropriate monetary assessments and penalties. Defendant appealed.
While the direct appeal was pending, defendant filed a motion for a limited remand to permit him to file a PCR petition. We granted the motion. Defendant then filed a PCR petition, which the court denied following an evidentiary hearing. Defendant appealed. Following that appeal, we denied defendant's motion to consolidate the appeals, but calendared them back-to-back. We now consolidate them for purposes of this opinion.
The State developed the following proofs at trial. Defendant is approximately ten years older than Sonja. Sonja was seventeen years old when she married defendant in Morocco, where she had lived her entire life. The marriage had been proposed by defendant's mother during the summer of 2007 while she was taking adult education classes in Morocco with Sonja's mother. Sonja was reluctant to accept the proposal because she wanted to continue her education, did not want children, and did not know how to cook, but defendant's mother assured her that defendant would be a good husband; he had a job, lived in his own home, and would pay for Sonja to continue her education in the United States. Defendant's mother said she would come to the United States and teach Sonja how to cook. Sonja accepted the proposal.
Throughout the following year, Sonja and defendant communicated by telephone and email. Defendant assured her that she could continue her education; however, he did not want her to work after she graduated. Sonja agreed. In the summer of 2008, defendant travelled to Morocco where he met Sonja face-to-face for the first time. During that summer, Sonja petitioned a Moroccan court for permission to marry, as the court's approval was necessary because she was only seventeen. After Sonja assured the court that she was not being forced to marry defendant, the court approved the marriage. Defendant and Sonja married in July 2008.
Following a honeymoon, the couple returned to the United States on August 29, 2008, and began living together in defendant's two-bedroom apartment in Bayonne. A few days later, defendant returned to work, leaving Sonja alone in the apartment. Throughout September, October, and November, their relationship deteriorated. On the cold evening of November 22, 2008, Sonja fled their home, traumatized and shoeless.
The events leading to Sonja's flight from the marital home began shortly after she came to the United States. Sonja quickly became disillusioned with her new life. She was isolated from family and friends. She felt that defendant did not support her. He did not allow her to watch television, listen to music, or access the internet. He gave her no money, and he permitted her to telephone her family only twice each month. He did not permit her to leave the apartment by herself, though she understood and respected that restriction based upon their culture and religion.
In late September or early October 2008, defendant's mother came from Morocco. Defendant's mother kept the keys to the apartment during that time. Sonja had to ask her permission to take out the garbage. Defendant's mother would, however, take Sonja with her to defendant's sister's house and sometimes defendant's sister would visit defendant's apartment.
After one visit from defendant's sister, defendant refused to touch Sonja or to speak with her for about four days. When he finally spoke, he told Sonja that he wanted a divorce. When she asked why, he said he did not want her anymore because she cried all the time, could not cook, and was boring. Sonja initially pleaded with defendant not to divorce her, unsure of what a divorce would mean for her future, but reconsidered and told defendant she wanted a divorce. After she signed a paper agreeing to a divorce, defendant said that he was not going to divorce her. Sonja told defendant she wanted to return to Morocco. Defendant said she would have to get money from her father because he would not pay for her return trip. After that incident, defendant became physically abusive. In late October or early November, he began to hit her and pinch her pubic area.
Sonja recalled that on November 1, 2008, defendant told her he had invited guests to come the following day, and he expected her to cook three specific Moroccan dishes. The next day, while defendant went to the mosque, Sonja attempted to cook the meal, but failed. When defendant returned with the visitors, he became very angry when he saw she had not prepared any food for them, but he could not yell because of the guests. He helped her prepare a simple Moroccan breakfast of juice and dates.
After the guests left and the couple was alone in the apartment, defendant told Sonja he was disappointed in her. He physically abused her, pinching her on her breasts, legs, and in her pubic area, leaving bruise marks on her body. She cried from the pain, but did not call the police.
The following week, on November 9, defendant asked Sonja to prepare a Moroccan dish for breakfast, but she had previously burned the tool needed to make the dish. While Sonja was in the kitchen thinking of what to do, defendant came in and asked what was taking so long. She showed him the burnt tool. He became angry and slapped her. Her mother-in-law also verbally chastised her.
Later that day, Sonja was alone with defendant. He told her some friends would be coming to dinner. Sonja said that she could not cook for them, but he insisted that she must. When defendant's mother returned to the apartment, she began preparing dinner. Sonja attempted to help, but her mother-in-law told her to help defendant. When Sonja tried to help him clean, he told her to stay away from him. She retreated to the bedroom where she cried and threw everything from defendant's desk onto the floor.
Later that evening, after the guests left, defendant entered the bedroom and saw the mess. Angry, he asked what Sonja had done with his money. When she denied knowing what he was talking about, he told her to remove her clothes and look for it. She complied. When she finished, defendant said her "punishment [was] going to start." He started to pinch her. She cried, but he continued "twisting and pinching and pulling." When he finished and she attempted to go to sleep, he demanded sex. Crying from pain, she refused, but defendant forced himself on her, penetrating her against her will. She cried throughout, loudly, and complained that it hurt, but he continued. Afterward, Sonja remained in their bed, not knowing where to go. The next day, defendant went to work as normal.
The next incident culminated with Sonja fleeing the apartment on November 22, 2008. Defendant's sister had come to visit, planning to spend the weekend, and the family discussed defendant's plans to take his mother and Sonja to Saudi Arabia as part of their religious obligation. Defendant's sister was upset because she had learned about the trip from Sonja's mother. Sonja denied telling her parents about the trip, explaining that defendant had cut off her phone access, so she could not call her parents. When Sonja denied telling her mother about the planned trip, her mother-in-law called her a liar and verbally attacked her family. Sonja retreated to her bedroom and began to cry. Defendant came in and told her she had to prepare dinner for everyone. Sonja went to the bathroom, washed her face, and then locked the bedroom door. Defendant and his family ate dinner without her. A few hours later, defendant knocked on the bedroom door, but Sonja refused to open it.
The next morning, Sonja was still upset. She heard people laughing in the living room and felt that no one cared about her. She began breaking things in the room, including a window. It was very noisy, and Sonja heard people saying she was crazy. People knocked on the door, but she refused to open it. Defendant then demanded that she open the door, threatening to open it from the outside. When Sonja refused to open the door, defendant removed the doorknob, entered the room, and pushed the door closed. He sexually assaulted Sonja, laughing at her and calling her crazy while she cried.
When defendant finished with Sonja, he left her alone in the apartment, later returning with his mother. Sonja put on her coat and attempted to leave the apartment, but defendant slapped her and forced her into the bedroom, where he slapped her some more. Sonja cried. She became aware that she was bleeding when she saw blood on the pillow and sheets.
After defendant left the bedroom, Sonja fled the apartment through a bedroom window. It was a "freezing cold" night, but she wore no shoes because there were none in the bedroom. She saw a woman who had just parked her car and she approached the woman and her daughter. Sonja asked them for help and for shoes. The woman invited Sonja into the car and consoled her. According to the woman's trial testimony, Sonja appeared "so scared, so afraid, she was crying. And her lip was in bad shape[,]" not bleeding, but black and blue and reddish, "like somebody hit her or punched her."
Meanwhile, the woman's daughter called the police, even though Sonja did not want to notify the police because she feared the reaction of people she knew in Morocco. Bayonne Police Sergeant Terrence Joynt and Officer Anthony Laura responded. Joynt attempted to speak with Sonja, who was crying, had a bruised lip, and appeared "distraught", but there was a bit of a language barrier. He obtained as much information from her as he could and called for an ambulance, which arrived and took her to a hospital for her injury, and for investigation of a possible sexual assault.
Joynt, Laura, and another officer proceeded to defendant's basement apartment. There, Joynt observed a window ajar. Defendant answered the door and let the police in. About five people were present in a living room area to the right of the entrance. To the left of the entrance was a small bedroom. Joynt noticed that the knob to the bedroom door was off, and there was phone wiring coming underneath the door, with the phone outside the door. The police used a tool to open the bedroom door. Once inside, Joynt observed a pillow and mattress on the floor and blood in the center of the pillow. One window was open and another was broken. The room was in disarray, "a total mess[,]" with broken objects strewn about. Believing that probable cause existed to arrest defendant for an act of domestic violence, Joynt arrested him.
Meanwhile, at the hospital, Sonja met with Detective Polly Hanns from the Hudson County Prosecutor's Office's Special Victim's Unit. Hanns described Sonja as "very emotional. Very upset, crying . . . overwhelmed." She observed Sonja's swollen lip and some marks on her face, and Sonja had reported additional bruises on her breasts and legs.
Another prosecutor's employee, Bonnie Rodgers, a sexual abuse nurse examiner (SANE), examined Sonja. Rodgers described Sonja as appearing "pretty scared" and "nervous[;]" she was "holding herself . . . [a]nd teary eyed." Rodgers attempted to perform an internal examination of Sonja's vaginal area and cervix, but could not complete it because Sonja complained of severe pain. Rodgers could not explain the cause of Sonja's pain, which she conceded could have been the result of an infection, though Sonja denied any medical condition and Rodgers did not observe any sign of infection. Rodgers observed the bruise on Sonja's lip as well as circular markings or bruises on both breasts and both thighs, in various states of healing, and a red bluish mark on her cheek under her right eye.
After Rodgers completed the examination, Hanns gave Sonja some of the personal items she had requested from the apartment, including clothing and her passport. According to Hanns, she did not file sexual assault charges against defendant at that time because Sonja declined to bring criminal charges. Sonja told Hanns that she just wanted to get a divorce and return home to her parents in Morocco.
Hanns made efforts to obtain shelter for Sonja. Ultimately, Sonja chose to go home with a Moroccan nurse to whom we will refer to by the pseudonym Amy, who offered Sonja a place to stay, dissuading her from going to a shelter. Hanns later learned that a member of Amy's household attended the same mosque as defendant.
A month later, on December 22, 2008, while at Amy's sister's house, Sonja began to experience pain and went to a hospital emergency room. Hospital personnel informed her that she had a urinary tract infection and that she was pregnant. While at the hospital, defendant showed up. Amy's sister had apparently told her husband where Sonja was. The husband then told the Sheikh of defendant's Mosque. Although Sonja returned to Amy's sister's home after leaving the hospital, Amy and her sister made plans for Sonja and defendant to meet again.
Several days later, Sonja and defendant met with the leader of the mosque, who attempted to reunite them. Defendant signed an agreement not to physically abuse Sonja and Sonja agreed to return to him. Sonja felt she had nowhere to go. She did not know anybody in America and thought that if she did not agree, she would be out on the streets. She believed she could not return to Morocco with a child because the community there would be against her. On January 15, 2009, defendant brought Sonja home to his new studio apartment in Jersey City. She remained there less than ten days. During her stay, defendant assaulted her again.
When Sonja arrived at the studio apartment, she saw that it had no refrigerator, no internet access, no phone. She helped defendant hang curtains and arrange some other things. That night before going to sleep, they engaged in consensual sex. Sonja explained that even though she felt "mentally really destroyed," no "Arab person can imagine that wife will get back to their husband without doing sex." She explained that she "didn't look happy, but . . . looked satisfied with the situation." Although really upset, Sonja understood "it's a reality that I have to live it."
Her tolerant attitude did not last long. At 3:00 a.m. defendant woke up, angry, enraged, and demanded sex. Pregnant and tired, Sonja did not want to have sex, but she submitted. Later that morning, after defendant went to work, Sonja was alone in the apartment with little food and no key. Amy's father came later and brought her some food. When he left, Sonja began breaking things, frustrated at her situation. In the afternoon, she borrowed a neighbor's phone, called Amy, and told her of defendant's abuse. Amy counseled her to be patient with defendant because she had gotten him in big trouble by going to the police.
That night, defendant returned home around midnight, bringing a sandwich that he shared with Sonja. Defendant wanted to have sex with her again, but she pushed him away. She told him to give her the essentials, such as food, and then he could have sex with her. The next few days, while defendant was at work, Sonja spent time with a neighbor, a Moroccan woman, who fed her and listened to her complaints. The woman cautioned Sonja to be patient; maybe defendant could change. Things did not change, however, and defendant continued to force Sonja to have sex, despite her crying. She testified that the nonconsensual sex happened about five times.
On January 18, after sexually assaulting Sonja, defendant took Sonja to call her parents and ask them to send money for her to return to Morocco. He told Sonja's parents that she had been breaking things in the apartment and it would be better if she were with them, especially since she was pregnant. Shortly thereafter, her father sent $600 to Amy, which Amy gave to Sonja.
On January 22, 2009, defendant took Sonja to a travel agency, where they argued about whether defendant was going to travel with her to Morocco. They made no travel arrangements. When they returned to the apartment, defendant told her he was going to divorce her and then he sexually assaulted her while she cried. Afterward, defendant said he was going to work. Sonja left the apartment with him and found his mother in a car outside. Defendant's mother drove the two to the mosque leader's home, where Sonja remained until January 24, when the leader brought Sonja back to the apartment to pack up her things in preparation for returning to Morocco the following day.
The following day, after a woman called the police on Sonja's behalf, the police came to the mosque leader's house. Sonja filed a complaint against defendant.
That night, Sonja was experiencing pain, so she went to a hospital where she was examined by a sexual assault response team (SART) nurse, Alicia Jonville. Jonville described Sonja as appearing "nervous," crying at times. Sonja would smile or laugh depending on what Jonville said to her, "[b]ut, basically, she was very sad. And very despondent." Jonville examined Sonja, but found no physical evidence from which she could conclude that Sonja had been abused.
Hanns was assigned to the case due to her involvement with Sonja in November 2008. Sonja agreed to file criminal charges against defendant. Hanns took a formal, recorded statement, which the State played for the jury. According to Hanns, throughout the statement Sonja appeared "[v]ery upset[,]" cried, and expressed feelings of helplessness and fear. Following Sonja's statement, the police arrested defendant.
In this appeal, defendant raises the following points for our consideration
I. TRIAL COUNSEL'S LACK OF A MEANINGFUL PRETRIAL INVESTIGATION, INCLUDING HIS FAILURE TO INTERVIEW VIRTUALLY ALL POTENTIAL DEFENSE WITNESSES OR ANY OF THE STATE'S WITNESSES SERVED TO DENY A FAIR TRIAL TO [DEFENDANT].
II. PROSECUTORIAL MISCONDUCT CONSISTING OF INFLAMMATORY OPENING AND CLOSING STATEMENTS, VIOLATIONS OF N.J.R.E. 602 AND THE WITHHOLDING OF EXCULPATORY EVIDENCE SERVED TO DENY [DEFENDANT'S] RIGHT TO A FAIR TRIAL.
A. The Prosecutor's Opening Statement.
B. The Prosecutor's Summation.
C. The Prosecutor's Improper Examination of [Sonja].
D. The State's Withholding of Exculpatory Evidence was a Violation of Brady v. Maryland, 373 U.S. 83 (1963).
III. THE DENIAL OF DEFENDANT'S REQUEST TO DISMISS THE KIDNAPPING CHARGES, PRIOR TO SUBMISSION TO THE JURY PREJUDICED HIS RIGHT TO A FAIR TRIAL.
IV. [SONJA'S] REPEATED REFERENCES TO HER PARALLEL CIVIL DOMESTIC VIOLENCE CASE AGAINST DEFENDANT VIOLATED N.J.R.E. 404(b) AND ALTERNATIVELY R. 403.
V. [DEFENDANT] WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE FEDERAL AND STATES CONSTITUTIONS BY VIRTUE OF THE STATE'S INTRODUCTION OF INADMISSIBLE EXPERT TESTIMONY THROUGH THE "SANE" NURSE .
VI. [DEFENDANT] WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION [AND] ARTICLE I OF N.J. CONSTITUTION.
VII. [DEFENDANT'S] CONVICTIONS MUST BE VACATED DUE TO A DEFICIENT VOIR DIRE WHICH DEPRIVED HIM OF AN IMPARTIAL JURY.
VIII. THE DENIAL OF [DEFENDANT'S] REQUEST FOR BAIL PENDING APPEAL WAS IMPROPER PURSUANT TO R. 2:9-4.
We first address defendant's contention that he was denied the right to an impartial jury. Defendant's trial began on September 8, 2010, and ended on September 22, 2010. He contends that scheduling the trial of a fundamentalist Muslim during the anniversary of the September 11, 2001 attacks, following "substantial media coverage of the Ground Zero Mosque and Quran Burning controversies," deprived him of an impartial jury and a fair trial. He further contends the court conducted inadequate voir dire of prospective jurors to determine their attitudes about those events and defendant's religion.
Assuming that defendant did request an adjournment, the court did not abuse its discretion by denying the request.1 To support his argument, defendant has included four news articles that pre-dated his trial and two that post-dated it. The articles that pre-dated defendant's trial include September 7 and 8, 2010 articles concerning "a controversial Florida preacher" who proposed burning copies of the Quran and an August 22, 2010 news article concerning the proposed "Ground Zero Mosque." A fourth article dated August 2, 2010 concerns defendant's domestic violence case, though the article does not identify defendant by name. It reported that an appeals court had reversed a judge who refused to grant a woman a restraining order "after her Muslim husband pinched her 'private areas' and forced her to have non-consensual sex . . . ." The article noted that her husband faced criminal charges for sexual assault, kidnapping, aggravated assault, and criminal restraint.
The two post-trial articles reported on defendant's conviction and a postponement of his sentencing proceeding. The articles appeared on the internet and were followed by responses from readers, mostly negative. None of those materials persuades us that defendant was denied his right to a fair and impartial jury.
The federal and state constitutions guarantee defendants in criminal cases the right to trial by a fair and impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, 10. "'The theory of our [trial] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.'" Skilling v. United States, 561 U.S. 358, 378, 130 S. Ct. 2896, 2913, 177 L. Ed. 2d 619, 641 (2010) (quoting Patterson v. Colo., 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 2d 879 (1907)). As our Supreme Court has recognized, "[a] 'trial by an impartial jury . . . goes to the very essence of a fair trial.'" State v. Timmendequas, 161 N.J. 515, 567 (1999) (quoting State v. Williams, 93 N.J. 39, 60 (1983)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
That is not to say that jurors can have no knowledge about a case. Our Supreme Court has recognized that "a jury with knowledge about a case still can be impartial." Timmendequas, supra, 161 N.J. at 567. "Indeed, 'it is difficult to imagine how an intelligent venireman could be completely uninformed of significant events in his community.'" Ibid. (quoting United States v. Abello-Silva, 948 F.2d 1168, 1178 (10th Cir. 1991), cert. denied, 506 U.S. 835, 113 S. Ct. 107, 121 L. Ed. 2d 65 (1992)). What is required is that a "juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." State v. Williams, 113 N.J. 393, 429 (1988) (quoting Dobbert v. Fla., 432 U.S. 282, 302 97 S. Ct. 2290, 2303, 53 L. Ed. 2d 344, 362 (1977)).
When pretrial publicity poses a possible impediment to a defendant's right to be tried by a fair and impartial jury, "'primary reliance on the judgment of the trial court makes [especially] good sense' because the judge 'sits on the locale where the publicity is said to have had its effect' and may base her evaluation on her 'own perception of the depth and extent of news stories that might influence a juror.'" Skilling, supra, 561 U.S. at 386, 130 S. Ct. at 2918, 177 L. Ed. at 646 (quoting Mu'Min v. Va., 500 U.S. 415, 427, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991)). We review a trial court's decision as to whether a jury could render an impartial verdict under an abuse-of-discretion standard. See Timmendequas, supra, 161 N.J. at 568. Here, we find no abuse of discretion.
The handful of articles defendant cites provide far from compelling support for his argument that he was denied his right to a fair and impartial jury. Of the four articles that pre-dated defendant's trial, three had nothing to do with him. Two concerned a "controversial Florida preacher" who posted a message on Facebook urging people to burn the Quran. One merely reported the controversy, and the other reported New York City Mayor Michael Bloomberg's defense of the Florida preacher's First Amendment right to do so, despite the Mayor's finding the preacher's conduct distasteful.
Other than citing the articles and making a general allegation, defendant has not established that the articles influenced prospective jurors. One could just as easily generalize that most people would reject the preacher's views as extremist. And as to the article about Mayor Bloomberg, it is difficult to understand how a juror who agreed with the article which respected one's First Amendment rights could somehow be deemed to be prejudicial rather than open-minded.
We reach the same conclusion with respect to the article about the Ground Zero Mosque. The article, apparently posted by the American Broadcasting Company (ABC), is dated more than two weeks before the trial. Defendant's suggestion that jurors might have been influenced by that or similar articles amounts to little more than speculation and a sweeping generalization. Defendant fails to point to a single instance in which a prospective juror's ability to fairly decide his case might have been affected by the article about the Ground Zero Mosque or similar articles. We decline to find that the trial court abused its discretion based on speculation and generalizations.
The only pre-trial article that specifically referred to defendant's case, dated August 2, 2010, did not even identify defendant by name. Rather, it headlined "[a] state appeals court" that reversed a trial court order that dismissed a domestic violence complaint. Once again, defendant fails to cite a single instance of a prospective juror recalling the article, let alone being influenced by it.
Nor are we persuaded that the articles that appeared after defendant's conviction affected his right to an impartial trial. We find entirely unpersuasive his suggestion that readers' sentiments about a defendant convicted of sadistic sexual crimes somehow reflect a widespread public pre-conviction prejudice.
Defendant cites as legal precedent Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). That case is clearly distinguishable from the case before us. In Sheppard, the United States Supreme Court referred to the "carnival atmosphere at trial" in agreeing with this characterization of the pretrial and trial publicity
Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. . . . In this atmosphere of a "Roman holiday" for the news media, Sam Sheppard stood trial for his life. [State v. Sheppard, 135 N.E.2d 340, 342 (Ohio 1956).]
[Id. at 356, 358, 86 S. Ct. at 1519-20, 15 L. Ed. 2d at 616, 618.]
In contrast, defendant here has cited one newspaper article that referred to his case, but not his name. The handful of articles defendant has cited hardly equate to the "carnival atmosphere" that pervaded the Sheppard trial; nor do they establish either an abuse of discretion by the trial court or that the jury, which defendant's attorney characterized in his opening statement as "a little United Nations" representing "many, many, many different facets of our very diverse county-population," was unfair or partial.
We find equally unavailing defendant's argument that the jury voir dire was inadequate to disclose the attitudes of jurors who might be prejudiced against someone of defendant's religious persuasion. It bears noting that the questionnaire filled out by prospective jurors was the questionnaire proposed by defendant. Significantly, defendant does not cite to one instance of allegedly inadequate voir dire. Rather, he cites his attorney's statement to the trial judge on the second day of jury selection that the court "rarely, if ever, asked what somebody meant by an answer on the questionnaire." Based on that and similar comments by his attorney, defendant asserts that "[r]eview of the record below clearly demonstrates that counsel's legitimate concerns were not addressed by the court's jury voir dire, which was conducted with extreme brevity, given the circumstances of the case."
It is difficult to evaluate defendant's argument because it is based on generalities rather than specifics. Nevertheless, after considering the transcript of the voir dire of prospective jurors, we reject defendant's argument. During jury selection, the court explained to the jurors that defendant had a right to an impartial jury and encouraged them to give truthful and honest answers to the questions they were asked. The court encouraged the jurors to disclose "any biases, prejudices, fixed opinions or views" they may have held. Jurors were specifically questioned about their ability to be open-minded and to decide the case solely on the evidence presented during the trial. And defendant's questionnaire included this question: "The defendant and several witnesses, including the complaining witness, are Moroccan Muslims who believe in and practice the religion of Islam. Does that in any way cause you to question your ability to serve as an impartial juror in this case?"
The voir dire resulted in the court removing many jurors for cause, including jurors who were unable to be impartial based on prior experience with, or exposure to, domestic violence; due to the nature of the charges; and due to the inability to be fair in a case involving a Muslim following the September 11, 2001 attacks. Significantly, only one prospective juror indicated that she had read about the case. Although she believed she could be impartial, defendant used a preemptory challenge to have her removed from the jury.
In short, we see no reason to question the impartiality of any juror. More importantly, defendant has not pointed to one instance where he believes the judge should have asked a follow-up question based on a specific response given by a juror. We find no basis for disagreeing with the trial court's conclusion that it selected an impartial jury.
We next address defendant's argument that the prosecutor's misconduct throughout the trial deprived defendant of a fair trial. When reviewing such claims, we must determine whether misconduct occurred, and if so, we must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." Timmendequas, supra, 161 N.J. at 575. If a prosecutor has engaged in misconduct, "[t]o justify reversal, the . . . conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).
We are guided in our review by well-settled principles that apply to the general duty of a prosecutor trying a case, and to the prosecutor's performance during specific phases of a trial. As our Supreme Court has noted, "New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012), cert. denied, ____ U.S. ____, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "'If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged.'" Ibid. (quoting State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994)). For that reason, the prosecutor's duty is "to prove the State's case based on the evidence" without "play[ing] on the passions of the jury or trigger[ing] emotional flashpoints." State v. Blakney, 189 N.J. 88, 96 (2006).
Nevertheless, the duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous" manner. State v. Ramseur, 106 N.J. 123, 190 (1987), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, 31 N.J. 489, 510-11 (1960), aff d, Johnson v. N.J., 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). He or she may argue the case "'graphically and forcefully,'" Smith, supra, 212 N.J. at 403 (quoting State v. Feaster, 156 N.J. 1, 58 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)), but must not lose sight of the obligation to "'conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction,' ensuring that at all times his or her 'remarks and actions [are] consistent with his or her duty to ensure that justice is achieved.'" State v. Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting Williams, supra, 113 N.J. at 447-48).
For the foregoing reasons, "'[o]ur jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness.'" State v. Echols, 199 N.J. 344, 359 (2009) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)), cert. denied, ____ U.S. ____, 133 S. Ct. 877, 184 (L. Ed.2d 687 (2013). As we recently explained
Prosecutors must choose their tactics in conformity with their legal duties. Thus, they are not free to employ a prejudicial tactic just because the precise action has not yet been expressly condemned by the Supreme Court. Similarly, when a reviewing court has declared a method improper in a published opinion but concluded it to be harmless error in that case, compliance with the prosecutor's obligation does not permit repetition. A finding of harmless but improper prosecutorial conduct cannot, consistent with a prosecutor's duty, be understood as a license to mimic an improper method.
[State v. Rivera, ___ N.J. Super. ___, ___ (App. Div. (2014) (slip. op. at 5).]
With those principles in mind, we turn to defendant's argument concerning the prosecutor's opening statement. Defendant accuses the prosecutor of misconducting himself by referring to Sonja's age, education, and national origin in an attempt to elicit sympathy and to prejudice the jurors against him; by expressing his personal opinions about Sonja's and defendant's thinking and feelings; and by expressing his opinions about defendant's character traits.
When making opening statements, "prosecutors should limit comments . . . to the 'facts [they] intend in good faith to prove by competent evidence.'" Echols, supra, 199 N.J. at 360 (alterations in original) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)). Because "[t]he purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove[,] [they] . . . should limit themselves in their opening to what they will prove and not 'anticipate' their 'final argument.'" State v. W.L. Sr., 292 N.J. Super. 100, 108 (App. Div. 1996) (quoting State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961)). Prosecutors are prohibited from including in their opening statements comments intended to generate sympathy for the victim or animosity toward the defendant, W.L., supra, 292 N.J. Super. at 108; suggestions that a defendant is dangerous, see Echols, supra, 199 N.J. at 359-60; and suggestions that the State knows of reasons beyond the evidence why the jury should reach a certain verdict. See Wakefield, supra, 190 N.J. at 438-39.
In the case before us, defendant did not object to the prosecutor's opening statement. When a defendant raises an issue for the first time on appeal, we review the issue for plain error, that is, error that "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). Additionally, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 83 (1999).
In the case before us, the prosecutor explained not only the events that resulted in the criminal charges against defendant, but also the events in Morocco that led to Sonja marrying defendant and accompanying him to America. In doing so, the prosecutor explained that Morocco is predominantly an Arab country, located in the northwest corner of Africa "3,600 miles and four time zones away from where I am standing here today." The prosecutor also told the jury that when the marriage proposal was communicated, Sonja was sixteen years old, "a high school girl." He later repeated that Sonja was "a young girl growing up," and a "high school girl."
In describing Sonja's attitude toward the marriage, the prosecutor said, "I think that you think of this marriage and you think that [Sonja] did not want to have anything to do with it. And I will tell you right now, she did. She was excited about this. This was a smart, successful, Muslim man."
As the prosecutor began to detail defendant's abuse of Sonja, he explained that Sonja felt like a prisoner in her own home, that it had become apparent to defendant that Sonja "was not the wife [defendant] expected," and that defendant did not like the situation because "this is not what he signed up for[,] . . . this is not the woman he thought he was getting [and] . . . deserved." The prosecutor also told the jury that defendant "felt that he could demand and he could get sex from her whenever he wanted. . . . He felt that as a man and as her husband, that if he wanted sex he could take sex. Irrespective of what she wanted." We find no prosecutorial misconduct with respect to the preceding statements during summation.
The events that occurred in Morocco certainly did not establish the elements of any offense with which defendant was charged, and were only marginally relevant. Those events, however, as well as Sonja's feelings of loneliness and isolation, were relevant to explain why she was initially reluctant to bring criminal charges against defendant and why she returned to defendant after escaping him. And the comments were relatively innocuous as evidenced by the fact that defendant did not object to them.
Defendant argues that when the prosecutor said, "I will tell you right now, [Sonja wanted to marry this] smart, successful Muslim man[,]" he was expressing a personal opinion. Defendant also accuses the prosecutor of expressing a personal opinion when he told the jury defendant "felt he could demand and get sex from her, whenever he wanted . . . . He felt that as a man and as her husband, that if he wanted sex he could take sex." We disagree.
The prosecutor's prefatory comment, "I will tell you right now," is not necessarily an expression of personal opinion. Literally, the prosecutor was "telling the jury right now" what he intended to prove. But even if the prefatory comment could be construed as a lead-in to a personal opinion, its context and the State's evidence suggest otherwise. The prosecutor followed that prefatory comment by stating facts he not only intended to prove, but did prove at trial. Sonja testified that she willingly married defendant and came to the United States with him. She was, initially, enthused about the marriage and thought she loved defendant.
The prosecutor's comments about Sonja's and defendant's states of mind were also supported by Sonja's testimony. She told the jury about her isolation. She also told the jury it was defendant who first said he was disappointed in her for numerous reasons and wanted to leave her. More importantly, her testimony about when and under what circumstances defendant demanded sex, and how he forced her when she refused, amply supported the prosecutor's comments about defendant thinking he had the right to have sex whenever he demanded it.
The prosecutor concluded his opening statement by emphasizing that Sonja was a kid
The one thing that I will leave you with, ladies and gentlemen, is to remember that [Sonja] was a kid. She is [a] kid now, she is nineteen years old. The person that you see tomorrow has been forced to grow up well beyond her years as a result of what this man did. But at the time that this happened, ladies and gentlemen, in November of 2008 and January of 2009, she was a kid.
She was a kid who had been dropped in a foreign country, thousands of miles away from her home, away from family, away from friends, and she was forced to endure this treatment by a man that she loved, that she thought was her husband. I ask you to remember that she was a kid when you judge her, when you analyze the testimony that she gives.
These comments present a closer question. The prosecutor deliberately emphasized that Sonja was a "kid," a word he repeated five times before telling the jury he was confident they would convict defendant after hearing all of the testimony. The prosecutor's assertion was contrary to the evidence, which clearly established that at the time defendant engaged in the conduct underlying the criminal offenses, Sonja was a young adult. And the repetition and context point to use of the word kid as a ploy to appeal to the jurors' sympathy.
But the prosecutor could have intended to use the term to denote a young woman in her late teens who was immature, unworldly, and too inexperienced to handle the demands of her relationship with defendant. That possibility finds support in the prosecutor's statement, "[s]he is [a] kid now, she is nineteen years old."
Significantly, defense counsel used the same theme in his opening statement when he told the jury: "[O]bviously, the fact that these charges came from the person who [the prosecutor] characterizes as a kid - - very young, in a very difficult situation, is going to raise issues that both of us are going to be talking about from our different positions at the end of the case." He repeated that theme in his summation when he told the jury: "This is a young woman, a kid as [the prosecutor] called her in the beginning - - a spoiled child who acts like a spoiled child when things are not going the way she wants." Thus, defense counsel not only understood the prosecutor's remarks as referring to an immature and child-like young woman, but also used that connotation to what he believed to be a tactical advantage.
More significantly, there was substantial evidence of defendant's guilt. Sonja's testimony was corroborated by many witnesses, including law enforcement officers who entered her apartment on the night she first fled, witnesses who described her emotional state, and a nurse who observed injuries on some of the parts of her body that she claimed defendant had pinched. And the circumstances of her first flight exiting a home through a window, without shoes, on a cold night are contrary to the notion that Sonja orchestrated those events.
Lastly, the jury's verdict reflects that it carefully applied the court's instructions to the proofs the State presented. The jury acquitted defendant of one kidnapping charge and convicted him not of aggravated assault, but of the lesser-included-offense of simple assault.
The single conclusion from those several considerations is that the prosecutor's remarks in his opening statement, even if improper, did not raise a reasonable doubt as to whether they led the jury to a result it otherwise might have not reached. McGuire, supra, 419 N.J. Super. at 106-07.
Defendant's remaining arguments about the prosecutor's opening statement are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
For substantially the same reasons, we conclude that certain comments the prosecutor made in his closing statement were insufficient to raise a reasonable doubt as to whether they led the jury to a result it otherwise might not have reached. In arriving at that conclusion, we bear in mind that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. See Ramseur, supra, 106 N.J. at 323. In this case, defense counsel did not object to the remarks defendant now complains about.
Defendant accuses the prosecutor of multiple instances of misconduct in his summation. He argues that the prosecutor improperly vouched for Sonja's credibility; denigrated defendant's relationship with his mother; improperly disparaged defendant's image, characteristics, and character traits; referred to defendant's need for control and ability to manipulate; attacked defendant's religious beliefs; expressed his personal opinion about defendant's guilt; and commented on defendant's failure to testify. Most of these accusations, however, either cite the prosecutor's remarks out of context or overlook the fact that the remarks are supported by competent evidence the prosecutor presented during the trial.
The prosecutor's summation was, to a large extent, a response to that of defense counsel. Defense counsel's tactic was to put Sonja on trial. He told the jury, "[t]he evidence in this case is [Sonja]." He continued: "Trustworthiness. The evidence in this case begins significantly with a story about the November [Sonja] who just wanted to go home. And over a period of months, she changes into the January [Sonja] who wants to stay here and press criminal charges against her husband." Defendant emphasized throughout his closing that Sonja's testimony was not trustworthy. He challenged the jury as follows: "If [the prosecutor] can convince you that [Sonja] is a trustworthy witness, whether or not she is a trustworthy person . . . then you convict [defendant]."
Defense counsel then characterized Sonja as a temperamental, spoiled child: "this is a young woman, a kid, as [the prosecutor] called her in the beginning a spoiled child who acts like a spoiled child when things are not going the way she wants." Counsel emphasized that Sonja's behavior escalated to violence when she did not get her way, as evidenced by her tantrums, which included trashing the apartment. And after defense counsel further emphasized that Sonja had never called the police, he asked rhetorically: "Is that because she was afraid to or because she knew her complaints were lies?" Counsel suggested that Sonja fabricated the charges and that her injuries were self-inflicted.
In response to defense counsel's summation, the prosecutor told the jury
We focus so much on [Sonja], and that was inevitable because you heard so much from her, alright. Six hours of testimony, I can tell you the truth, I have never been through that as a prosecutor. It was long. She came before you, she told you her story. And I think you all would admit and you all would agree that as a 19 year old, she has been through more than most other people.
Defendant argues that the prosecutor's statement expressed his personal belief in Sonja's credibility.
The prosecutor improperly injected his own experience, or perhaps inexperience, when he said he had "never been through that as a prosecutor," referring to the length of Sonja's testimony. His experience, or inexperience as the case may be, was not presented as evidence during the trial and was not subject to cross-examination. Nevertheless, the jury obviously witnessed the length of time that Sonja testified and the evidence supported the prosecutor's argument that she had been through more than most people. Considering the entirety of the prosecutor's closing argument, the evidence presented at trial, and the fact that defense counsel did not object to the fleeting comment, we conclude that the comment was not clearly capable of producing an unjust result. R. 2:10-2.
The prosecutor's denigration of defendant's relationship with his mother is a different story. After noting that defendant "was twenty-seven year old, living in the United States, working in Manhattan as an accountant[,] . . . well respected in his Mosque[,]" the prosecutor said: "yet, he has Mommy go over 3600 miles away to the other side of the world to pick out a 16 year old wife for him. And you are telling me that she is spoiled?"
Later in his summation, in describing the incident in which Sonja was unable to prepare food for guests, the prosecutor said
November 16th, same thing happened again. But you know what the difference was on November 16th? Mommy came to the rescue again. Mommy came to the rescue when he needed a wife. Mommy came to the rescue when he needed to provide for guests. His image could not be shattered, he had to hold himself up. He knew that [Sonja] couldn't do it. So he calls Mommy, and Mommy comes in.
Counsel's denigration of defendant's relationship with his mother was improper. Cf. State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) (finding that the prosecutor's statement, among others, that "[the defendant's] Mommy hired him a lawyer" to be improper), certif. denied, 168 N.J. 290 (2001). Nevertheless, we conclude that the prosecutor's improper comments do not require reversal under a plain error analysis. The prosecutor made his remarks as a response to defendant's argument that Sonja was a spoiled child. And the fact that defendant's mother was involved in his life or perhaps overly involved as argued by the prosecutor can hardly be said to have caused the jury to decide that defendant committed the sadistic acts Sonja described. This is particularly true in view of the evidence corroborating Sonja's testimony, which we have recounted above. Moreover, had defendant objected the court could have easily cured any prejudice that might have occurred as the result of the prosecutor making the petty remarks that he made about defendant's relationship with his mother.
Most of the remaining comments defendant complains about were amply supported by the evidence. For example, defendant claims that the prosecutor's statements that defendant wanted to get rid of Sonja, he did not care, and "[i]t fits the image he had, it fits the character traits he has," was a reference to inadmissible propensity evidence. But the prosecutor's comments were based on evidence that proved the elements of the offenses with which defendant was charged, including kidnapping, criminal sexual contact, and aggravated assault. Sonja testified, among other things, that when she first arrived in the United States, defendant did not permit her to leave the apartment, watch television, access the internet, or listen to music. She also testified that as her relationship with defendant deteriorated, he told her he did not want her anymore because she cried all the time, could not cook, and was boring. And the evidence was virtually indisputable that on the night Sonja left the apartment, defendant had removed the door knob from the bedroom door and had prevented Sonja from using the telephone. That evidence supported an inference that defendant was a controlling person, as did the evidence of defendant forcing Sonja to disrobe while searching for his money that she had unknowingly thrown on the floor from his desk. In the context of that evidence, the prosecutor's passing reference to defendant's character traits was far from plain error.
Similarly, defendant's accusation that the prosecutor commented on his failure to testify is devoid of merit. The prosecutor was not referring to defendant's post-arrest silence. He was responding to the defense argument that defendant did not intentionally inflict any injuries on Sonja, and that her injuries were perhaps self-inflicted. It was in that context that the prosecutor asked, rhetorically, whether defendant ever apologized or asked, upon observing Sonja's injuries, where they came from.
Defendant's remaining accusations about the prosecutor's summation are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
Defendant next argues that the prosecutor impermissibly questioned Sonja by asking her a leading question and by making a statement that substituted his testimony for her testimony. The leading question involves a date. After a prefatory statement, defendant asked Sonja if "this was a Sunday night after the ninth? The November 9th, is that correct? Was that the next Sunday?" The prosecutor then asked the judge, "would it be fair to say that that is November 16th?"
Defendant argues that the prosecutor's leading question and statement prevented the defense attorney who tried the case from properly cross-examining Sonja's recollection of the alleged conduct. That assertion is not supported by the trial transcript. In fact, the attorney who tried the case did not object to the leading question. The date appears to be relatively inconsequential. Sonja was not precise about when certain things occurred, and the indictment did not allege defendant had sexually assaulted her on a specific date, but rather suggested that the crimes were committed "on or about diverse dates of October 2008 through November 22, 2008, and on January 15 through January 18, 2009."
In any event, the court has discretion to control the mode and order of interrogating witnesses. N.J.R.E. 611(a). While leading questions should generally not be used on direct examination of witnesses, they are permitted if necessary to develop a witness' testimony. N.J.R.E. 611(c). Here, defendant did not object at trial to the question he now complains about. We are unable to conclude from our review of the transcript that the prosecutor's leading question was error, let alone plain error.
In this final allegation of prosecutorial misconduct, defendant contends the prosecutor withheld exculpatory evidence. Defendant asserts that two "Sexual Assault Examination Reports" dated November 22, 2008 and January 26, 2009, were not provided to him by the prosecutor as required by the rules of discovery. Defendant further asserts that the reports contradicted Sonja's grand jury testimony and could have been used to impeach her trial testimony. Defendant did not raise this argument before the trial court and he has failed to make an adequate record in this appeal. He asserts in his brief, without any citation to the record, that "these reports were first produced on September 14, 2010, in the middle of trial during [the SANE nurse's] testimony." Although the trial transcript and appendix support defendant's assertion that the reports were produced at trial, defendant has no certification from his trial attorney either that the reports were first produced at trial or that the belated disclosure impaired his ability to cross-examine Sonja. Moreover, defendant has not cited to a transcript of Sonja's grand jury testimony as support for his assertion that the reports contradict that testimony. In view of the wholly inadequate record, we decline to address the argument. See State v. Robinson, 200 N.J. 1, 19 (2009).
We next address defendant's argument that he was deprived of a fair trial as the result of Sonja's repeated references to her domestic violence complaint against defendant and the inadmissible expert testimony of SANE nurse Bonnie Rodgers. We find no ground for reversal in the testimony of either witness.
During her testimony, Sonja referred to a "civil case" that she would "not talk about." She also mentioned that a case against defendant had been dismissed. Defense counsel did not object to this testimony.
Later in her testimony, relating to the criminal complaint she made against defendant in January 2009, Sonja testified that the police obtained a restraining order on her behalf. Defense counsel objected and the court immediately instructed the jury
Ladies and gentlemen of the jury, this case has nothing to do with restraining orders, restraining orders are not involved here, whatsoever. Please disregard that, they are to take no part in your deliberations. And [addressing Sonja], please don't mention restraining order again.
On further direct examination, Sonja mentioned having "so many court proceedings" after making her complaint to police, and addressed why she needed an interpreter during those court proceedings.
On cross-examination, defense counsel questioned Sonja extensively about the testimony she gave in prior proceedings, and her prior statements to police, as well as her divorce and child support proceedings in Morocco.
Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). See also State v. Vallejo, 198 N.J. 122, 124-25 (2009) (reversing conviction because trial "was poisoned by the recurring admission of evidence of other crimes and wrongdoings by defendant, and by reference to the domestic violence restraining order against him[,]" and "trial judge's curative instruction was too little, too late"). But see State v. Duprey, 427 N.J. Super. 314, 316, 323-25 (App. Div. 2012) (stating that domestic violence hearing testimony of complainant and defendant may be used on cross-examination in related criminal trial).
Here, with the exception of one instance when she referred to the police obtaining a restraining order, Sonja did not refer specifically to the domestic violence proceedings. And when she testified that the police had obtained a restraining order for her, the court promptly and emphatically instructed the jury to disregard any reference to restraining orders. The jury is presumed to have followed that instruction. State v. Miller, 205 N.J. 109, 126 (2011). Sonja's other references to other proceedings were vague and could have referred to the proceedings defense counsel referenced during his cross-examination.
Defendant asserts that Sonja's references to the domestic violence case "had the clear potential for creating an inference in the minds of the jurors that defendant had previously committed acts of violence against the alleged victim and that a judge ruled that the victim was credible and believed her testimony." If defendant means that the jury could have inferred he committed crimes other than those for which he was on trial, the record supports no such inference. Further, the assertion "that a judge ruled that the victim was credible" is not only unsupported by the record, but overlooks Sonja's testimony that after defendant had confronted her in the emergency room about another court case, she "just [felt] like nothing happened to him. And that the case got dismissed, actually."
Defendant also argues that the prosecutor elicited testimony about the domestic violence case. The prosecutor referred to a lengthy proceeding that lasted several months in which Sonja testified with an interpreter. The prosecutor's purpose in referencing the "lengthy proceeding" was to explain why she needed an interpreter then, but was testifying without one at defendant's criminal trial. While explaining her concern about not being able to speak fluently, Sonja also said she was concerned about winning the case and really concerned that the person who hurt her body be punished. But, as previously indicated, she had already told the jury that "the case got dismissed, actually." Defendant would have us speculate that the jury disregarded Sonja's statement that a previous case had been dismissed and speculate that instead the judge in the prior proceeding determined that Sonja was credible. We decline to engage in such speculation.
Considering the references by Sonja to previous proceedings in the context of her lengthy trial testimony, including her cross-examination on statements she had made in other proceedings, we conclude that the references did not deny defendant his due process right to a fair trial.
Defendant next contends he was denied a fair trial when SANE nurse Bonnie Rodgers testified about the significance, or lack of significance, of the absence of external injuries to Sonja's vaginal area. The testimony came during Rodger's re-direct examination concerning her November examination of Sonja. In cross-examining Rodgers, defense counsel attempted to show that she was biased in favor of alleged victims. He then established that when Rodgers examined Sonja, there were no external injuries to Sonja's vaginal area.
On re-direct examination, the prosecutor questioned Rodgers as follows
Q. Nurse Rodgers, [defense counsel] asked you about injuries, or lack thereof, to the vaginal area.
. . . .
Q. You have been doing this for some time. Is that correct?
Q. Okay. Is there an opinion that you have with regard to the injuries, or the lack thereof, of the vaginal area?
[DEFENSE COUNSEL]: I'm going to object to that, Judge. I don't understand the question.
Q. Is there any opinion you could have with the facts you were presented with about injuries, or lack thereof, to the vaginal area?
[DEFENSE COUNSEL]: Can we come to sidebar, Judge?
(Sidebar, recording off)
BY [THE PROSECUTOR]
. . . .
Q. You indicated that there were no injuries to the vaginal area.
A. Not visible from where I was sitting.
Q. Because there were no injuries, did that . . . indicate anything to you one way or the other?
Q. And why is that?
A. Because sometimes you don't have to visually see injuries externally. And that's why I needed to go in, because sometimes I don't see any injuries externally. But when I go in with the speculum, I can see types of bruising, tears, and then I take pictures. But I was not I was unable to do that because of the pain.
Q. Okay. And is there a possible reason why there would be no injuries external?
A. Some have some have external injuries, some don't.
Q. Okay. And and what would be the difference between the some that do and the some that don't?
A. I guess it depends on the actual act or what has actually happened.
Q. Okay. And --
[DEFENSE COUNSEL]: We're getting a little broad now, Judge.
BY [THE PROSECUTOR]
Q. When you say that, what do you mean by that, just expound upon that a little bit.
A. The act, sometimes there are victims who are assaulted, but . . . if they don't put up a fight or they don't do anything, I mean, you're not going to see external injuries. And then you have certain victims who will put up a fight, a struggle. So sometimes, you will see injuries. Depending on the narrative, you know, that's why I follow the story line to see what I'm going to see.
Q. Okay. And did the lack of injuries fit with this story line.
A. She says sometimes she had consensual and sometimes she didn't. So, it fit with the stories that she was telling me.2
The testimony was admissible to refute the implication from defense counsel's emphasizing the absence of external injuries that the absence of external trauma suggested the absence of sexual assault. See State v. Vandeweaghe, 177 N.J. 229, 237-38 (2003); State v. James, 144 N.J. 538, 554 (1996). Moreover, "expert testimony as to whether [a] negative physical examination [is] . . . consistent with the abuse testified to by [a victim is] and remains acceptable." See State v. Pillar, 359 N.J. Super. 249, 290 (App. Div.), certif. denied, 177 N.J. 572 (2003).
The problem was that the prosecutor did not first qualify Rodgers as an expert witness, nor did the court instruct the jury about expert testimony. Thus, there was error. The question is whether the error was so prejudicial that it warrants a new trial. We conclude that it does not.
There is no record of any objection from defense counsel about Rodgers's qualifications to give opinion testimony on this subject,3 nor is there any record of a request for an expert witness charge. And Rodgers's testimony reveals that she was qualified to give the testimony based upon her training and experience. See, e.g., State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995) (finding harmless error in the court's failure to specifically qualify police officer as an expert witness where enough evidence was presented to qualify him as an expert); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 (2014) ("In general, lay opinion testimony may not cross into the realm of expert testimony. . . . Nonetheless, if the subject of the testimony does not require complex scientific or technical knowledge, or if the witness possesses sufficient qualifications to have testified as an expert, any error in allowing the lay 'opinion' may be deemed harmless.").
Moreover, Rodgers stated explicitly that the absence of a visible injury indicated nothing to her, one way or the other. Considering Rodgers's testimony in its entirety, its "expert component" was harmless. R. 2:10-2.
We turn to defendant's argument that submission of the kidnapping charges to the jury violated his right to a fair trial. As previously noted, the court reserved decision on the kidnapping charges when defendant moved for a judgment of acquittal at the close of the State's evidence. The jury found defendant not guilty of one kidnapping charge and the court dismissed the other on defendant's post-verdict motion, concluding that no evidence supported a finding that "the confinement of the victim was for a substantial amount of time or to facilitate the commission of any crime, whatsoever."
Defendant contends that as a result of being overcharged with two counts of kidnapping, charges the court permitted the jury to consider, there was a "real possibility" that a compromised verdict occurred. Defendant asserts "there is a genuine likelihood that defendant was prejudiced by the inclusion of the kidnapping charges[,]" and that "[t]he submission of the unsupported kidnapping charge may have led the jury to convict on separate charges for which there may have been verdicts of acquittal, absen[t] the presence of this flawed kidnapping charge." Defendant's argument has insufficient merit to warrant more than a brief discussion. R. 2:11-3(e)(2).
As our Supreme Court has explained, "[w]e expect and rely on 'the ability of jurors to faithfully follow a trial judge's instructions in deliberating on a defendant's guilt.'" State v. Wilder, 193 N.J. 398, 415 (2008) (quoting State v. Muhammad, 145 N.J. 23, 52 (1996)). Recognizing that it is "'pure fancy' to speculate that a jury's verdict on a lesser offense was a compromise," the Court held that "overcharging errors, like other non-constitutional trial court errors such as defects in charging and the like, should be subjected on appeal to the same 'unjust result' standard in Rule 2:10-2." Id. at 415, 418.
Undoubtedly, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.]" Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2788, 61 L. Ed. 2d 560, 588 (1979). In such instances, constitutional error has occurred. Id. at 317-18, 99 S. Ct. at 2788, 61 L. Ed. at 588. For that reason, it is also error to submit a charge to the jury when that charge is not supported by sufficient evidence to permit a finding of each element beyond a reasonable doubt. Here, however, the error was fully addressed by the judge's subsequent reversal of the verdict on the kidnapping count.
We conclude that the court's error in permitting the jury to deliberate on the kidnapping charges was not clearly capable of producing an unjust result. R. 2:10-2. That conclusion is evidenced by the jury's acquittal of defendant on one of the kidnapping charges. To disregard that result and accept that the verdict on the remaining charges, which were fully supported by the evidence, was a compromise, would require us to speculate or engage in the "pure fancy" that the Court rejected in Wilder.
In a written opinion dated May 2, 2012, the trial court denied defendant's motion for bail pending appeal. Defendant contends the court erred. We affirm, substantially for the reasons explained by the trial court in its written decision.
We now address defendant's appeal of the order denying his PCR petition. Defendant contends his trial attorney was ineffective primarily because he failed to conduct a meaningful pretrial investigation, "including [failing] to interview virtually all potential defense witnesses or any of the State's witnesses." Although the PCR court provided defendant with the opportunity to present those witnesses at an evidentiary hearing, defendant did not do so. Because defendant has not demonstrated that trial counsel's failure to investigate establishes a reasonable probability that the outcome of the trial would have been different, we affirm the denial of his PCR petition.
When a defendant has filed a PCR petition that includes the information required by Rule 3:22-8 ("Contents of Petition; Verification"), and alleges as the sole ground for relief that trial counsel was ineffective, the trial court must initially decide whether the defendant is entitled to an evidentiary hearing. A defendant is entitled to an evidentiary hearing
only upon the establishment of a prima facia case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
A defendant must do more than make bald assertions to establish a prima facie case that trial counsel was ineffective; the defendant must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). For example, "when a petitioner claims his trial counsel inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Even then, a trial court need not grant an evidentiary hearing if a hearing "will not aid the court's analysis of the defendant's entitlement to post-conviction relief" or "if the defendant's allegations are too vague, conclusory, or speculative[.]" R. 3:22-10(e)(1) & (2).
On the other hand "[a] judge deciding a PCR claim should conduct an evidentiary hearing when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside of the presence of the judge." State v. Porter, 216 N.J. 343, 354 (2013). Such discussions include "those relating to the nature and content of the off-the-record conferences between defendant and [the] trial attorney[.]" Id. at 355 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999)). Additionally, if a defendant's PCR claim turns on the credibility of a witness whose certification the defendant has offered in support of his petition, the PCR court should generally grant an evidentiary hearing. See id. at 356. "There is no substitute for placing a witness on the stand and having the testimony scrutinized by an impartial fact finder." Ibid.
If the court determines that a defendant is entitled to an evidentiary hearing, "[t]he scope of [the] hearing shall be limited to the issue of whether the defendant was improperly convicted." R. 3:22-10(d). That is so because, "[u]ltimately, a PCR petition is a defendant's last chance to challenge the 'fairness and reliability of a criminal verdict in our state system.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). "If an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." Ibid. At the hearing, the defendant "must establish the right to [post-conviction] relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992).
To sustain that burden, a defendant must prove two elements: first, that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
To prove the first element, a defendant must "overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities." Nash, supra, 212 N.J. at 542 (citation and internal quotation marks omitted). To prove the second element, a defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." 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).
When a defendant appeals the denial of a PCR petition following an evidentiary hearing, we defer to the "PCR court's factual findings based on its review of live witness testimony . . . [and] will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Nash, supra, 212 N.J. at 540. We do not defer to the PCR court's legal conclusions. Ibid. Those are reviewed de novo. Id. at 540-41.
Applying our standard of review to the facts developed by the parties at the evidentiary hearing, we conclude that defendant has not proved how specific errors of counsel undermined the reliability of the jury's findings of guilt.
In the case before us, defendant's PCR petition established a prima facie case that his trial counsel was ineffective. That is not in dispute. Nevertheless, we briefly review the petition because defendant did not present the same proofs at the evidentiary hearing.
In his certification supporting the PCR petition, defendant alleged his trial counsel was ineffective for, among other reasons, conducting virtually no investigation; failing to obtain and use at trial various records and documentary evidence containing statements that contradicted Sonja's allegations; failing to put on a defense; and preventing defendant from testifying. Defendant had given his attorney a list of more than twenty-five witnesses but his attorney interviewed only four.
Significantly, defendant included in his petition the certifications of seven witnesses, the content of which, if believed by a jury, would have completely undermined Sonja's testimony. The certified statements included first-hand witness accounts of Sonja enjoying herself and in one instance attending a party during critical dates in November 2008 that spanned dates that Sonja claimed that defendant was abusing her. Several witnesses aver that during that period, Sonja told them that she was very happy and loved defendant.
The Sheikh of the Mosque that defendant and Sonja attended provided a certification that contradicted much of what Sonja had testified to at trial. For example, when the Sheikh was asked by, among others, Sonja's family to personally intervene in December 2008, defendant initially declined, stating that he did not want to reconcile with Sonja and he wanted a divorce. The Sheikh and others "encouraged and persuaded [defendant] to reconcile with his wife." After speaking at length with defendant and Sonja, the Sheikh believed "there was a lack of experience and respect on [Sonja's] part in dealing with her husband. My assessment of the problem was that [Sonja] was not comfortable dealing with her mother-in-law and that this was causing a problem between herself and her husband." The Sheikh also averred that Sonja complained of the treatment she was receiving from her mother-in-law but had no problems with defendant. Defendant privately expressed his concern that Sonja was plotting something.
The Sheikh also averred that when defendant and Sonja decided to attempt a reconciliation, she specifically asked that she would not be forced to cook, do laundry, and that they move to an apartment close to Amy's parents. Defendant was willing to comply with those conditions.
According to the Sheikh, defendant returned to him with his mother and Amy because Sonja had threatened to call the police and fabricate false charges, including that he had kidnapped her. Amy told the Sheikh that Sonja said defendant had not mistreated her; Sonja had never complained to Amy about physical or sexual abuse.
Lastly, the Sheikh certified that Sonja later refused to go home alone without defendant, but defendant would not take her back, so Sonja stayed with the Sheikh. On the fourth day, January 25, 2009, Amy telephoned and told the Sheikh that Sonja said she had called the police to file false charges and get revenge on her husband, who had divorced her. According to Amy, the police were on their way to the Sheikh's house. The Sheikh certified: "I asked [Sonja] and she confirmed the information given by [Amy], and at that point, asked her to leave my house. She left with the police . . . ."
During the evidentiary hearing, defendant produced none of the witnesses who had provided certifications in support of his PCR petition. His testimony was, for the most part, consistent with the certification he had filed. The only exhibit he moved into evidence at the hearing was the witness list he had given to his attorney before trial.
The reason defendant called no witnesses can be gleaned from a colloquy that occurred during the State's cross-examination of defendant at the PCR hearing and from PCR counsel's closing argument. PCR counsel objected to the State questioning defendant in an effort to show that no one on the witness list had any direct knowledge of the facts that constituted the elements of the offenses with which defendant was charged. PCR counsel argued, "this isn't a trial. We're not going back over guilt or innocence." The court asked, rhetorically,
is [failing to interview witnesses] in and of itself enough? Doesn't there have to be a proffer by . . . the PCR petitioner . . . that these were relevant witnesses who would testify to his benefit and ultimately would have caused the jury to find him not guilty? Don't you have to hit that burden as well? I mean the mere allegation there were interviews. Is that enough?
PCR counsel responded by disagreeing with the court
this proceeding is in no way intended by me to be anything other than an opportunity to establish for the Appellate Division . . . that the sin, if you will, of [trial counsel, was] . . . in this particular case he failed to do . . . what any attorney even one right out of law school would do minimally, and that is interview the witnesses he was informed by his client had relevant information.
It may well be that after he conferred with him he would have determined that their information would not be helpful, but he never even spoke with them. And that, in my opinion, carries the day for us in terms of the Strickland test.
PCR counsel later reiterated in his closing argument that trial counsel's wholesale failure to interview witnesses established both elements of Strickland.
The State presented the testimony of trial counsel, an assistant deputy public defender who had been practicing law since 1968. Contradicting defendant's testimony, his trial counsel testified that they had communicated many times about the case, meaning more than twenty, by telephone, email, and in person both at the courthouse and at his office. Trial counsel had pressed defendant to consider a plea bargain because of the substantial risk of going to trial and because Sonja was unpredictable.
Defendant's trial counsel testified that he did not interview Sonja because she had made it clear that she would not cooperate, but he had observed her in "Family Court" and had observed the DVD of her statement to the authorities. He realized that if the jury liked Sonja and connected with her, there was "not really going to be much [he could] do to protect [defendant] . . . from a conviction."
Defendant's trial attorney also claimed to have spoken with defendant's mother, sister, and four of the witnesses he had identified. He also believed he had spoken with Sheikh Kenawi by phone, but was "not 100% sure of that." The attorney claimed that he made independent judgments about whom he would interview, but did not interview everyone defendant identified because he believed they were peripheral and because he understood as a strategic matter that "we needed to go directly after [Sonja]."
According to trial counsel, he reviewed discovery, including police reports, and personally attended the last day of the Family Court proceedings where he was able to observe two witnesses testify. He obtained and reviewed a copy of the Family Court transcripts. He testified that he "spent more time on this case by far than any other case [he'd] had in the last eight years."
Defendant's trial counsel decided not to present the testimony of defendant or his proposed witnesses because after cross-examining Sonja, he believed he had sufficiently damaged her credibility and created reasonable doubt. Characterizing his decision as "a very very difficult call," he explained that it "was a very considered judgment and a difficult judgment," but one he believed to be the correct decision. He testified that he discussed the decision with defendant, defendant's sister, defendant's mother and his "gifted colleagues," who had observed his cross-examination of Sonja.
In hindsight, trial counsel conceded that perhaps his judgment had been incorrect. Given a second chance, he would have presented a defense. Nevertheless, he thought the verdict showed "the jury didn't believe [Sonja] with regard to 50 percent of the case[,]" particularly in those instances where the allegations were based solely on her uncorroborated testimony.
Based on the evidence presented during the evidentiary hearing, the court denied defendant's PCR petition. In its decision, the court found that defendant's trial counsel "attended the family proceedings, acquired transcripts, met with [defendant] on several occasions, spoke to his mother and sister, and interviewed a few of the individuals provided on [defendant's] witness list." The court additionally determined that, "[i]n the end, [defense counsel] concluded that the best trial strategy was to focus his energy on weakening the credibility of the victim's testimony rather than continue to interview the remaining proposed witnesses."
The court explicitly rejected defendant's argument that his attorney had a duty to interview the remaining witnesses on the list defendant had provided. The court concluded that defense counsel had become familiar with the facts of the case and the strengths and weaknesses of key witnesses through his own research, which led him to the strategic decision to focus on diminishing the State's case. The court further concluded that such a decision was reasonable under the circumstances and consequently counsel's performance was not deficient. The court specifically rejected the "theory of the [d]efense that a defense attorney's performance is conclusively deficient if he or she fails to interview all possible witnesses put forward by the defendant."
Having also presided over the trial, the PCR court noted that defense counsel's cross-examination of the victim "was effective and in due course led to the victim telling the jurors 'that anybody can say whatever they want on the stand.'"
Lastly, and most significant in terms of this appeal, the PCR court determined that "there was no showing of causation on the part of the [d]efense. To successfully show ineffective assistance, a defendant must not only demonstrate that his attorney committed unreasonable errors, the defendant must also show how the poor performance altered the outcome of the case." We agree.
A criminal defense attorney has a duty to reasonably investigate a client's case. State v. Savage, 120 N.J. 594, 618 (1990). An attorney may make a decision that certain investigation is unnecessary, but that reason must itself be informed and reasonable; otherwise, the attorney's performance is deficient. Ibid. Our Supreme Court has explained that "where 'reasonable professional judgments' support a defense counsel's decision to limit an investigation, the court should not find ineffective performance of counsel." State v. Chew, 179 N.J. 186, 205 (2004) (quoting State v. Martini, 160 N.J. 248, 266 (1999), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007)). That proposition is not absolute: "'strategy decisions made after less than complete investigation are subject to closer scrutiny.'" Ibid. (quoting Savage, supra, 120 N.J. at 617-18).
Defendant challenges the PCR court's finding that his trial attorney conducted a reasonable investigation. We need not decide that issue, however, because assuming defendant had proved that his trial attorney's investigation was inadequate and his performance therefore deficient, that proof only satisfied the first part of the Strickland-Fritz test. Defendant provided no proofs of the second part, namely, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant presented no evidence at the evidentiary hearing to show "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. 2047 n.26, 80 L. Ed. 2d 668 n.26. Consequently, defendant failed to prove by a preponderance of the evidence his ineffective assistance claim.
In this appeal, defendant repeatedly emphasizes "that counsel's failure to conduct any semblance of an adequate pretrial investigation rendered his right to a fair trial a nullity." He argues that in this "classic he said, she said case," the witnesses whose certifications he attached to his petition "could have provided testimony attacking the credibility of [Sonja] in a case without physical evidence supporting the [S]tate's presentation." But defendant did not present the testimony of those witnesses, nor did he introduce their statements at the evidentiary hearing. Defendant was granted the evidentiary hearing so that he could present the testimony of those witnesses to establish their credibility and prove that their testimony established a reasonable probability that the trial's outcome would have been different.
Defendant argues that prejudice should be presumed and cites Cronic for that proposition. Defendant does not provide either a quote from Cronic or a cite to the page of the opinion that supports his argument. In Cronic, the Court explained that no specific showing of prejudice is required when an accused has been denied counsel at a critical stage of the trial, if counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing," or if an accused has been "denied the right of effective cross-examination." Id. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668. The Court also explained that "[a]part from circumstances of that magnitude, . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668 n.26. Here, defendant was not denied counsel at a critical stage of trial, and he was not denied the right of effective cross-examination. Nor did defendant establish at the evidentiary hearing that defense counsel failed to subject the prosecution's case to meaningful adversarial testing.
Defendant also claims that counsel's discouraging defendant from testifying and disassociating himself from defendant rendered his assistance ineffective. These and defendant's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
1 It is unclear whether defendant actually requested a trial adjournment. On September 9, 2010, during the second day of jury selection, defense counsel told the court that had he foreseen "that the voir dire was going to be conducted with the speed and the brevity that [Your Honor] has conducted it, I would have moved to adjourn this case." When the court responded that defendant had moved to adjourn the case, defense counsel replied that he "didn't really move to adjourn the case," but rather "agreed with Your Honor's assessment, . . . that we could use the circumstances to flush out bias and prejudice and to determine who might not be suitable to sit on the jury."
2 Defendant claims that the jury asked for a playback of Rodgers's testimony, and that the playback ended after Rodgers gave the allegedly inadmissible testimony. That assertion is not supported by the record. Rather, the record reflects that the jury requested a playback of both the SANE and SART nurses' testimony (Rodgers and Jonville), and does not reflect at what point in the testimony the playback ended.
3 There was a sidebar, but it was not recorded. Defendant does not explain the substance of the objection or provide a statement in lieu of transcript. R. 2:5-3(f). The sidebar should have been recorded. R. 1:2-2. Complying with Rule 1:2-2 avoids the need to recreate a record as well as other problems.