STATE OF NEW JERSEY v. GREGORY EASTMEAD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1701-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY EASTMEAD,

Defendant-Appellant.

__________________________________

March 28, 2014

Submitted December 16, 2013 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment Nos.

01-10-1291 and 01-09-1198.

Joseph E. Krakora, Public Defender, attorney

for appellant (Rasheedah Terry, Designated

Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory Eastmead appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In September 2001, defendant was indicted by a Mercer County grand jury for the sexual molestation of three girls, ages eight and nine. The indictment charged three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), based on alleged digital penetration of the girls; three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), based on alleged sexual touching of the girls beneath their clothes; and three counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, for all the misconduct. In October 2001, a second indictment was returned against defendant alleging one count of first-degree sexual assault, N.J.S.A. 2C:14-2(a)(1), for engaging in an act of fellatio with a child less than thirteen years old; and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, for the same conduct. The second indictment alleged a crime that occurred while defendant was released on bail for the first set of charges.

Defendant stood trial on the first indictment in January 2004. The girls testified that defendant, who was dating the mother of one of them, had played a game with them called "Go Fish," during which he put his hand inside their pants and touched and penetrated their vaginas. Defendant had given a statement to the police in which he admitted playing the game and putting his hand inside the girls' pants but denied the allegations of penetration. According to the testimony of a mother of one of the girls, defendant had admitted penetration to her when she confronted him with her daughter's accusations. The jury found defendant guilty on all nine counts.

Defendant then pleaded guilty to the second indictment. On May 7, 2004, the court sentenced him to a term of twenty years imprisonment on the first indictment and to a concurrent term of fifteen years imprisonment on the second indictment. On direct appeal, we affirmed defendant's conviction and prison sentence. State v. Eastmead, No. A-2376-05 (App. Div. Nov. 24, 2008). The Supreme Court denied his petition for certification. State v. Eastmead, 197 N.J. 477 (2009).

Defendant filed a pro se PCR petition on April 23, 2009, and counsel was appointed to represent him. The court heard argument on the petition and issued a written decision and order on March 31, 2011, denying the petition without holding an evidentiary hearing.

On appeal, defendant argues:

POINT I

THE COURT SHOULD REVERSE THE ORDER DENYING POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel's Failure To Object To The

Trial Court's Unclear "Penetration"

Instruction Amounted To Ineffective

Assistance Of Counsel.

B. Trial Counsel Had No Reasonable Basis

For Raising The Lack Of Forensic

Evidence Issue When She Was Fully Aware

That Her Actions Would Invite Harmful

Rebuttal Testimony.

POINT II

THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.

POINT III

THE COURT SHOULD ALSO REMAND THE MATTER TO ADDRESS DEFENDANT'S PRO SE CLAIMS.

We find no merit in these arguments.

In considering a PCR petition, we begin with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Strickland test, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

Here, defendant argues his trial attorney was ineffective because he failed to request more precise jury instructions on the meaning of and the difference between sexual penetration, which was required to prove the first-degree charges, and sexual contact, a lesser-included offense of those charges. He contends the jury was misled by the inadequate instructions into concluding that his inappropriate touching of the girls inside their clothes could constitute penetration, making him guilty of first-degree aggravated sexual assault.

Defendant made these same arguments on direct appeal, and our unpublished decision fully addressed the adequacy of the jury instructions. In the direct appeal, defendant argued:

THE JURY CHARGE FAILED TO DISTINGUISH PENETRATION, AN ESSENTIAL ELEMENT OF THE GREATER OFFENSE OF AGGRAVATED SEXUAL ASSAULT, FROM TOUCHING, AN ELEMENT OF THE LESSER-INCLUDED OFFENSE OF SEXUAL CONTACT.

We analyzed the jury instructions the trial judge had given on the two types of offenses, sexual assault and sexual contact, and concluded they were not erroneous. Eastmead, supra, slip op. at 4-9. Since we considered and decided that issue, defendant may not raise it again in a PCR petition. R. 3:22-5; State v. Marshall, 173 N.J.343, 351 (2002).

Defendant argues nevertheless that his attorney was ineffective for having failed to object to the trial court's proposed charge on the meaning of penetration, which was in accordance with the model jury charges, Eastmead, supra, slip op. at 6-7. He argues his attorney should have requested additional clarifying language that we approved in State v. J.A., 337 N.J. Super. 114, 119 (App. Div.), certif. denied, 169 N.J. 606 (2001). We find no merit in these arguments. If the jury instructions as given were not erroneous but a correct statement of the law, the attorney's performance could not be deemed deficient and ineffective for failing to object to them.

Defendant also argues that his trial attorney was ineffective because she opened the door to damaging prosecution evidence at trial that would otherwise have not been admitted. He contends that the prosecutor and the trial judge warned defense counsel that if she pursued a defense based on the absence of forensic evidence to prove penetration, the prosecution would counter with expert testimony from a sexual crimes detective to the effect that the kind of digital penetration alleged by the victims would likely not leave forensic evidence, especially when the molestation was not immediately reported.

This, too, was an issue we addressed in the direct appeal, although on somewhat different grounds. There, defendant had argued:

DETECTIVE MCKEOWN TESTIFIED TO MEDICAL FINDINGS BEYOND THE SCOPE OF HER QUALIFICATIONS AS AN EXPERT IN SEXUAL-ASSAULT INVESTIGATIONS.

We rejected that argument, but we also stated that defense counsel had "'opened the door' to the issue of forensic evidence of the sexual assaults by cross-examining [a police witness] regarding the absence of forensic evidence." Eastmead, supra, No. A-2376-05 (slip op. at 12-14).

Defendant had admitted to the police that on several occasions he had put his hand inside the girls' pants and tickled their private areas. He denied he had digitally penetrated their vaginas, but all three girls told the police in taped statements and later testified at trial that he had done so. Faced with little to work with once defendant's partial confession was deemed admissible at trial, defense counsel attempted to challenge the allegation of penetration by showing that there was no objective evidence corroborating the girls' testimony regarding penetration.

Defense counsel's strategy was ultimately unsuccessful, but that does not mean it was deficient performance or ineffective representation of defendant. "[A] reviewing court must assess the performance of counsel with a 'heavy measure of deference to counsel's judgments.'" State v. Difrisco, 174 N.J. 195, 220 (2002) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. Ibid.; see State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).

Next, defendant cites State v. Savage, 120 N.J. 594, 618 (1990), and argues that the PCR court did not address the argument in his pro se PCR petition that his trial counsel was ineffective for failing to investigate and present a defense of diminished capacity based on his mental disorder, which the sentencing court described as "infantile." Defendant did not present any evidence in his PCR petition that he in fact suffered from a mental disorder that would support a diminished capacity defense. He did not proffer any expert opinion regarding his mental incapacity. Without at least a proffer of the evidence that defense counsel allegedly failed to gather, defendant has not shown a prima facie case of ineffective assistance. Cf. State v. Jack, 144 N.J. 240, 254 (1996) (necessity of establishing a prima facie case of ineffective assistance of counsel by presenting "expert or otherwise qualified testimony" to support contentions).

Our Supreme Court has stated: "In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" State v. Arthur, 184 N.J. 307, 319 (2005) (alteration in original) (quoting Stickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). The Court reconfirmed the Strickland standard and emphasized that "[a] reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." Ibid. Here, defendant's claims do not undermine our confidence in the outcome of his trial. Defendant simply lacked a credible defense in the face of strong evidence of his guilt.

In addition, the trial court did not err in deciding the matter without holding an evidentiary hearing. An evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined. See State v. Porter, 216 N.J. 343, 354-55 (2013); State v. Preciose, 129 N.J. 451, 462 (1992). The trial court has discretion to dispense with an evidentiary hearing "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); accord Preciose, supra, 129 N.J. at 462-64. Here, the trial court did not abuse its discretion in proceeding without an evidentiary hearing.

Affirmed.