STATE OF NEW JERSEY v. W.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.B.,

Defendant-Appellant.

________________________________________________________________

June 4, 2014

Submitted December 10, 2013 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-12-1464.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted by a jury of second-degree sexual assault, and third-degree endangering the welfare of a child. He filed a petition for post-conviction relief (PCR) in which he asserted he was denied the effective assistance of trial counsel because counsel failed to file a pretrial motion for a Michaels1 hearing and failed to call Dr. Kathryn Hall, the author of a report finding suggestive questioning techniques in the victim interviews, as a witness at trial. He appeals an order that denied his petition following an evidentiary hearing. For the reasons that follow, we affirm.

In August 2003, the sentencing court imposed an aggregate sentence of eight years with a four-year parole disqualifier. Defendant appealed. We affirmed his convictions and remanded for reconsideration of his sentence. State v. W.B., No. A-1368-03 (App. Div. June 27, 2005) (slip op. at 19), certif. denied, 185 N.J. 296 (2005).2 Defendant was resentenced to the same term and appealed to this Court again on October 12, 2006. We affirmed his sentence. State v. [W.B.], No. A-1057-06 (App. Div. Nov. 14, 2007).

Defendant filed a PCR petition in August 2008,3 which was supplemented by a brief by assigned counsel that raised the following issues:

POINT I

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE TIMELY FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS.

POINT II

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel's failure to call Expert Witness Dr. Hall at trial.

B. Trial Counsel's failure to call Character Witnesses at trial.

POINT III

PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE CONSTITUTION.

The trial court denied the petition without an evidentiary hearing. We reversed, finding "defendant should be afforded an evidentiary hearing to develop whether it was reasonable for defense counsel to choose not to seek a pretrial Michaels hearing for the purpose of excluding statements that were allegedly the product of suggestive or coercive interrogative techniques[,]" State v. W.B., Docket No. A-5940-09 (App. Div. June 23, 2011) (slip op. at 3), and remanded for the trial court to conduct a hearing.4

The only witness at the evidentiary hearing was defendant's trial counsel, Darryl Saunders. He testified regarding his decisions not to call Dr. Hall as an expert witness and not to request a Michaels hearing.

Saunders was admitted to practice in 1990, approximately thirteen years before he represented defendant in this matter, and had experience in sexual assault cases prior to defendant's trial. Saunders testified that he was familiar with the Michaels case but had never conducted a Michaels hearing. He explained his understanding of the Michaels case:

Well, my reading of the Michaels case, it would apply to anybody, depending upon their age; their competence, the allegations that are being made; who is doing the interview; how suggestive is it; are they, pretty much, giving the individuals the answer.

Saunders was substituted as counsel for defendant in January 2003, approximately six weeks before the scheduled trial date. At the time he was retained, Saunders was unaware that Dr. Hall had prepared a psychological report. He did not see her report until approximately two months before the evidentiary hearing and previously understood that there had been a financial issue regarding paying Dr. Hall if she was to be called as an expert witness at trial. Saunders included Dr. Hall on a potential witness list because she had been involved in the case but did not intend to call her or to request a Michaels hearing. His understanding of Dr. Hall's involvement was that she had reviewed records; he was under the impression that "[e]ither the report hadn't been provided or that the report wasn't going to be done until she was paid a certain amount of money."

Saunders testified that he did not want to have a Michaels hearing in this case and explained why:

Prior to trial . . . I already had prior inconsistent statements and, I felt, that they would be powerful at the time of trial. I say that because the victims gave statements to police and then they were called before the grand jury, which is something I don't normally see. And they gave different statements. And I though[t] that if I did my job the correct way, I would be able to show that those statements would - - were inconsistent. And, quite frankly, that I felt that when they testified, we were going to have more inconsistencies. And that is exactly what occurred in this case.

Based upon his analysis and review of Dr. Hall's report, it was his opinion that the testimony of victim C.K.5 would "absolutely not" be excluded following a Michaels hearing. He believed that he had much more damaging evidence to address in the case that would not be affected by even a successful outcome from a Michaels hearing, noting he was "very nervous" about a taped telephone conversation between defendant and C.K., which would not have been suppressed in a Michaels hearing.

In addition to stating his opinion that a Michaels hearing would fail to lead to a successful result for defendant, Saunders testified that proceeding with such a motion would have a strategic disadvantage. A Michaels hearing would reveal the prior witness statements that Saunders deemed significant. He did not want to give the prosecutor's office "an advance look at [his] case" and afford them the opportunity to cure perceived problems in the witnesses' testimony. Saunders testified he explained his decision against requesting a Michaels hearing to defendant.

Saunders testified he also discussed Dr. Hall's report and its ramifications with defendant. He told defendant that he was not going to call an expert because, after reading the victims' statements and grand jury testimony, he believed "they were lying, and [he] could prove it."

The PCR judge denied defendant's petition, setting forth his reasons in an oral opinion. As recognized by the PCR judge, the standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The PCR judge found that the decisions challenged were made "with the understanding and the acknowledgment and the approval of the defendant." Calling Saunders an experienced attorney, the judge accepted his testimony that he did not believe a Michaels hearing would be beneficial in this case and that it was more likely to benefit the Prosecutor and weaken the defense. Rhetorically asking if "every lawyer [would] make the same decision," the judge stated, "[m]any have." The judge concluded that defendant failed to satisfy the first prong of the Strickland test.

The PCR judge observed that, as a general rule, "strategic miscalculations . . . are insufficient to warrant reversal[.]" He then assessed what would have come out in the Michaels hearing to attack the credibility of the witnesses at trial and considered counsel's performance at trial. The judge concluded that, using the inconsistencies in the witnesses' statements, the suggestiveness of questions, and the influence of peers, Saunders had "fully dissected" the witnesses in cross-examination, and that there was "nothing" that could have been achieved through a Michaels hearing or through using Dr. Hall's testimony that was not achieved at trial. The judge noted further that the trial strategy had led to some success in the verdict, in which the jury acquitted defendant of the charges involving three of the four alleged victims. Thus, the PCR judge concluded that defendant also failed to show he was prejudiced by his counsel's decisions.

In his appeal, defendant argues that he was denied the effective assistance of counsel. We are not persuaded by the argument advanced and affirm.

The unrefuted testimony at the evidentiary hearing was that defense counsel made strategic decisions not to use an expert at trial or to request a Michaels hearing, and discussed those decisions with defendant during his representation. "In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div. 2004) (citing Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976)); State v. Buonadonna, 122 N.J. 22, 38 (1991). As noted by the PCR judge, Saunders provided reasonable explanations of his decisions, identifying the strategic advantages and disadvantages applicable to those decisions. We concur with the PCR judge that these trial decisions did not fall below the standard set by the first prong of the Strickland/Fritz test.

The second prong requires defendant to show that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 315 (2006) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached." Ibid. Here, as the PCR judge observed, the jury acquitted defendant of all charges except the two related to C.K., the victim who had the tape-recorded conversation with defendant that Saunders found so damaging. Again, we agree with the PCR judge that defendant failed to make the requisite showing as to the second prong of the Strickland/Fritz test.

Affirmed.

1 State v. Michaels, 136 N.J. 299 (1994).

2

The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

3 An earlier petition for PCR was withdrawn without prejudice while the direct appeal was pending.

4 Contrary to the characterization of our opinion advanced by defendant in his brief, we did not remand for a hearing to give trial counsel the opportunity to explain why he did not call Dr. Hall as an expert at trial.

5 Although defendant was charged with misconduct involving four different teenaged girls, he was only convicted of the charges related to C.K.