STATE OF NEW JERSEY v. DARNELL STEWART

NOT FOR PUBLICATION WITHOUT THE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.

DARNELL STEWART,

Defendant-Appellant.

______________________________

June 10, 2014

 

Submitted November 19, 2013 Decided

 

Before Judges Reisner and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3205.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Darnell Stewart appeals from the trial court's May 9, 2011, order denying his petition for post-conviction relief (PCR). Defendant was sentenced on December 14, 2006, to an aggregate sixty-year term, with a sixty-year period of parole ineligibility, after a jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); and second-degree criminal attempt to commit sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c). Defendant does not contend he established a prima facie case warranting a hearing, let alone PCR. Rather, defendant argues on appeal that his PCR counsel failed to render effective assistance of counsel, and failed to fulfill his obligations under Rule 3:22-6(d). We agree that PCR counsel failed to advance all legitimate arguments requested by defendant or otherwise present those arguments to the trial court, contrary to the command of Rule 3:22-6(d). We therefore remand for the appointment of new PCR counsel, and a new hearing.

I.

A.

We reviewed the facts at length in our opinion affirming defendant's conviction on direct appeal. State v. Stewart (Stewart I), No. A-2745-06 (App. Div. April 29, 2009), certif. denied, 200 N.J. 475 (2009).1 In brief, the victim, B.S., testified that she was attacked and sexually assaulted in Camden at about 7:00 a.m. on October 23, 2004. B.S. testified that she was on her way home from a trip to a casino. She said her attacker hit her in the face, and forced her to an area under a highway overpass. He compelled her to lower her pants and bend over. As the tip of his penis entered her vagina, she tried to flee. After a short distance, she tripped and fell. Her attacker caught up to her, "punched" and "stomped" her, and directed her back to the overpass. He attempted to sexually assault her again, but could not achieve an erection, although he placed his penis against her buttocks. He told her he should have killed her, and then walked away.

After waiting until her attacker was a safe distance away, B.S. screamed for help to no avail. She went home and called 911. Police responded, and she was transported to the hospital. B.S. suffered a split eyebrow, a split lip, bruising to her back and chest, and swelling of her face. There was no evidence of genital trauma, or other physical injury to her vaginal area. The police searched the area under the overpass, but did not uncover any visible evidence of the assault or struggle.

A rape examination of B.S. led to the discovery of DNA that matched defendant's.2 A significant amount of sperm cells was found in her cervix. Several months after the assault, B.S. identified defendant from a photo array, stating she was sixty-percent certain he was the person who sexually and physically assaulted her. B.S. identified defendant in court and testified that she never saw him before the attack on October 23. In addition to B.S.'s testimony, the State presented the testimony of investigating officers, the SANE nurse, and a DNA expert.

Defendant did not testify.3 At the outset of the trial, defense counsel announced that a potential alibi witness Dawn Stewart would not testify, contrary to an apparent pre-trial alibi notice. The prosecutor stated that, according to a sergeant who interviewed Ms. Stewart, she could not definitively state that defendant was present in her home between 7:00 a.m. and 8:00 a.m. the morning of the attack.

However, defendant called an investigating police officer, as well as a defense investigator, to establish inconsistencies between B.S.'s testimony and her prior statements. Through cross-examination of B.S., as well as other witnesses, the defense established that B.S. initially misstated to police that she was on her way home from a late night shift as a supermarket worker. There were also discrepancies in her statements regarding the particular bus she allegedly rode the morning of the attack; her description of her attacker's height and physical appearance; and whether he was armed with a knife.

The defense also attempted to establish, based on B.S.'s prior statements, that B.S.'s attacker could not achieve an erection at all, did not penetrate B.S., and did not ejaculate. The defense did so in an effort to suggest that defendant's DNA, which was found in B.S., must have been placed there at an earlier time. However, the State attempted to demonstrate, through B.S.'s testimony and others, that semen or DNA could be left without full penetration, or ejaculation. Moreover, B.S. testified that her attacker did insert the tip of his penis in his first attack. She explained she had previously said he did not penetrate based on her understanding that penetration meant full, extended penetration.

The defense did not present direct evidence to support the suggestion that B.S. and defendant engaged in prior consensual intercourse. Defense counsel first suggested the theory at a pre-trial Wade4 hearing. Faced with compelling DNA evidence, counsel conceded that defendant had sexual relations with B.S. However, he asserted, "it's obvious that the man that attacked her is not the same man that put the semen in her" because the attacker allegedly did not penetrate her or achieve an erection. In response to the court's question, counsel declined to give a proffer of when defendant allegedly had consensual intercourse with B.S. Rather, he stated, "I'm waiting for the victim to testify."

The trial judge ruled that the Rape Shield Law, N.J.S.A. 2C:14-7, governed the admissibility of evidence that defendant and B.S. engaged in consensual sexual relations before October 23 as opposed to on that day. Notwithstanding the defense's late notice, the judge said she was ready to hold a hearing under the statute. Defense counsel questioned the court's ruling that the statute governed, did not submit to a hearing, and declined to seek interlocutory review. The judge reiterated her ruling the following day. Defense counsel stated, "I never intended to introduce any testimony or [c]ross-examine with respect to this in any way." However, counsel maintained the court's ruling improperly limited defendant's argument.

Defense counsel returned to the issue in a motion for a mistrial at the close of the State's case. Counsel argued defendant was improperly prohibited from arguing that defendant's DNA was placed in B.S. on a prior occasion. Pressed by the court to identify when the prior relations occurred, defense counsel stated, "Well, Judge, what I wanted to argue was this happened down in Atlantic City . . . ." The court denied the motion, reaffirming the view that proof of the alleged prior relations was subject to the Rape Shield Law, and defendant had declined the invitation to establish the admissibility of such evidence at a hearing.

In summation, defense counsel conceded, "Darnell Stewar[t] obviously fully and deeply penetrated Ms. Smith and left his semen. But, it was not under the circumstances she described." The defense argued that the quantity of defendant's sperm indicated that it was not placed there on October 23, when the attacker achieved little if any penetration. The defense focused on B.S.'s inconsistencies on where she was the previous night, and her lack of credibility. Defense counsel also questioned whether the attack occurred where B.S. alleged, as police could find no signs of a struggle.

On direct appeal, we rejected defendant's argument that he was denied a fair trial because (1) the State was permitted to refer to the name under which defendant's DNA sample was kept, Stewart I, supra, slip op. at 11-14; and (2) the court's application of the Rape Shield Law improperly barred him from arguing his theory of the case. Id. at 14-20.

B.

As defendant argues that his PCR counsel was ineffective, we review in some detail not only the arguments presented to the PCR court in support of relief, but also correspondence allegedly exchanged between defendant and PCR counsel regarding the points defendant wished to be made.

We first review the arguments presented to the PCR court. In his initial January 15, 2010, pro se petition, defendant asserted, without any further support or amplification:

14. My issues are: Ineffective Assistance of Counsel for failure to investigate alibi witnesses; Ineffective Assistance of Counsel for failure to conduct an effectivecross-examination of prosecution witness;and whatever issues appointed counsel will find.

 

This was followed by an amended verified petition, prepared by counsel, stating in general terms:

8. The petitioner seeks relief from the judgment of December 14, 2006 on the grounds that he was denied the effective assistance of counsel in that:

 

a. Defense Counsel was Constitutionally Ineffective for the Inter Alia Failure to Properly Investigate the Case.

 

b. Defense Counsel Failed to Call Necessary Witnesses and Did Not Communicate Sufficiently With Petitioner to Determine the Appropriate Course of Action In Accordance With the Rights Guaranteed By Both the New Jersey and United States Constitutions.

 

c. Appellate Counsel Was Ineffective For Not Investigating Issues, Consulting or Corresponding With Petitioner on the Case and Issues Which Should Have Been Raised on Petitioner's Behalf and for Not Producing Affidavits Which Could Have Helped to Support Petitioner's Claim of Court Error Which Denied Petitioner His New Jersey and United States Constitutional Rights.

 

d. Appellate Counsel Was Ineffective For Not Raising Denial of DNA Testing On His Direct Appeal Which Denied Petitioner His Right of Due Process Under The Law.

 

The petition was supported by a seven-page brief dated and served on November 18, 2010, and filed four days later. The fact section mirrored trial evidence. The legal section included a general description of the law governing PCR. However, the only discussion of grounds for relief consisted of the following:

POINT I

 

PURPOSE OF A POST CONVICTION RELIEF PETITION.

 

POINT II

 

COUNSEL WAS INEFFECTIVE.

 

STANDARDS OF INEFFECTIVE ASSISTANCE AND PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING.

 

1. Defense counselwas constitutionally ineffective for the inter alia failure to properly investigate the case, failure to call witnesses and for not communicating sufficiently with the petitioner to determine the appropriate course of action in accordance with the rights guaranteed by both the New Jersey and United States Constitutions.

 

2. Appellate counsel was ineffective for not investigating issues, consulting or corresponding with the petitioner on the case and issues which should have been raised on petitioner's behalf and for not producing affidavits which could have help[ed] to support petitioner's claims of court error which denied petitioner his New Jersey and United States Constitutional rights.

 

3. Appellate counsel was ineffective for not raising denial of DNA testing on his direct appeal which denied petitioner of his rights of due process under the law.

 

At oral argument, PCR counsel relied on his papers, except to assert a request, on behalf of defendant, for a transcript of the grand jury proceedings.

Judge Edward J. McBride denied relief in a cogent opinion. The judge applied the well-settled two-pronged test for assessing claims of ineffective assistance of counsel. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Relying on State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999), the court found that defendant's petition rested on "bald assertions," and his claims of uncalled alibi witnesses, ineffective cross-examination, and inadequate investigation were unsupported by competent evidence. Defendant failed to identify the uncalled witnesses and what they would have said. Nor did he provide specifics regarding the omitted cross-examination, the nature of the investigation, and what it would have uncovered. The court observed that B.S. was extensively cross-examined and her credibility was challenged.

As for the claim that appellate counsel was ineffective, by failing to confer adequately with defendant, the court again noted that defendant did not describe what points on appeal he claimed were omitted, except for the claim that counsel was deficient "in failing to raise the denial of DNA testing." The court held, "The simple flaw in this argument is that there was DNA testing in this case. And the results, which linked the defendant to the victim through sexual penetration, were never disputed."

In letters to PCR counsel in September and November 2010, defendant outlined, in greater detail than presented to the court, the grounds for his claim. However, before writing those two letters, defendant requested a full copy of the discovery in his case, including the grand jury minutes, in an April 25, 2010, letter. He also asked for prior recorded statements of B.S. and the SANE nurse.5 In another letter bearing the same date, defendant responded to a previous letter from PCR counsel, inquiring about grounds for the petition. Defendant argued that trial counsel was ineffective in failing to obtain grand jury minutes, which would have enabled him to discredit B.S. In a subsequent two-page letter dated May 12, 2010, defendant renewed his request for grand jury minutes, and complained about the trial court's response to two requests from the jury, during deliberations.6

In a more extensive September 5, 2010, letter to PCR counsel, defendant essentially provided a draft brief to counsel. Defendant stated: "Enclosed you will find a multitude of legal issues in which I am submitting and would like for you to raise on my behalf with some legal history in support. Please submit these issues to the court on my behalf for Post Conviction Relief." Conceding that he and counsel "have not been able to understand one another on the issues in which I would like for you to raise on my behalf," defendant asserted that the letter was designed to explain those points "so you will be able to submit them on my behalf."

The letter then incorporated the full text of a proposed "supplemental letter brief" with a legal argument. The brief included the following points:

POINT I

 

DEFENSE COUNSEL WAS CONSTITUTIONALLY INEF[F]ECTIVE FOR THE INTER ALIA FAILURE TO PROPERLY INVESTIGATE THE CASE, FAILURE TO CALL WITNESSES AND FOR NOT COMMUNICATING SUFFICIENTLY WITH PETITIONER TO DETERMINE THE APPROPRIATE COURSE OF ACTION IN ACCORDANCE WITH THE RIGHTS GUARANTEED BY BOTH THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

 

POINT II

 

APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING ISSUES, CONSULTING OR CORRESPONDING WITH PETITIONER ON THE CASE AND ISSUES WHICH SHOULD HAVE BEEN RAISED ON PETITIONER[']S BEHALF AND FOR NOT PRODUCING AFF[I]DAVITS WHICH COULD HAVE HELP[ED] TO SUPPORT PETITIONER'S CLAIMS OF COURT ERROR WHICH DENIED PETITIONER HIS NEW JERSEY AND UNITED STATES CONSTITUTIONAL RIGHTS.

 

POINT III

 

APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING DENIAL OF DNA TESTING ON HIS DIRECT APPEAL WHICH DENIED PETITIONER OF HIS RIGHTS OF DUE PROCESS UNDER THE LAW.

 

In support of Point I, defendant asserted for the first time, without supporting details, that B.S. was a prostitute. With respect to Point III, defendant appeared to argue that DNA testing was necessary to secure evidence that B.S. was with another man. Defendant argued:

Trial counsel can be found to have provided deficient representation because he failed to imply to the jury that the victim was selling her body for monetary gains. And that a second independent DNA test would have reve[a]led that the victim had on her clothing multiple bodily fluids which could have been used for a defense that would have been in[ ]accordance with defendant[']s theory of consen[s]ual sexual intercourse as the medical evidence suggested because there [were] no signs of forceful[] penetration of the victim, that she lied in her testimony about where she was coming from and that she may have changed her clothing from gambling attire to her work garments.

 

PCR counsel did not file defendant's proposed brief in any form.

On November 17, 2010, defendant sent another letter to PCR counsel, entitled, "Issues in which I wish for you to raise on my behalf." This twenty-five-page document included a certification that the information contained therein was "truthful to the best of my knowledge."7 In that letter, for the first time, defendant alleged that he and B.S. engaged in consensual sex on October 20, 2004. He asserted that B.S. was a soliciting prostitute in an area known for prostitution. He claimed that in lieu of her $40 fee, he offered to pay her $20 in cash and the rest with drugs. B.S. accepted, although she later expressed fear that her pimp would retaliate against her because she did not collect the full cash fee.

Defendant asserted that counsel was ineffective by failing to investigate and seek evidence to support his claim, including: circumstantial evidence that the area was a known area for prostitution; DNA evidence (including testing of the clothing B.S. wore on the day of the attack) to establish B.S. had multiple sexual partners; and testimony of other prostitutes.

Defendant also alleged that Dawn Stewart and another alibi witness, George Bucks, were both willing to testify that he was present in their home the morning of October 23, 2004, and trial counsel never followed up with them. Defendant asserted to his PCR counsel that it was his "job, to seek out these people, get the affidavits, certify them and bring them to the PCR Judge."

With respect to his claim of ineffective assistance of appellate counsel, defendant asserted that he provided a supplemental pro se brief, but appellate counsel refused to file it. The proposed brief is not included in the record before us.

The record also includes a March 2011 letter from PCR counsel, apparently in response to a February 2011 letter from defendant that is not in the record. PCR counsel characterized defendant's interest in the grand jury transcript as a fishing expedition, and insisted that defendant provided no facts upon which to base his claim for PCR.

In his appeal from the order denying PCR, defendant argues: "DEFENDANT'S POST CONVICTION RELIEF COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL." Defendant also argues that his PCR counsel failed to comply with Rule 3:22-6(d).

II.

We recently held our State Constitution affords a defendant a "right to counsel when raising ineffective assistance of trial counsel for the first time, whether raised on direct appeal or by way of PCR." State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). "[T]here can be no question that a defendant is entitled to effective and competent assistance of counsel" when counsel is appointed for a PCR petitioner. State v. McIlhenny, 333 N.J. Super. 85, 87 (App. Div. 2000).

In addition to the constitutional right to counsel, "Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010). The Rule provides:

Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.

 

[R. 3:22-6(d).]

In State v. Webster, 187 N.J. 254, 257 (2006), the Court held that PCR counsel must investigate claims urged by a client and "should advance all of the legitimate arguments that the record will support". See also State v. Rue, 175 N.J. 1, 18 (2002) (recognizing "the critical nature of faithful and robust representation of a defendant at a PCR proceeding").

We shall not reach defendant's ineffective assistance claim. Just as our Court has disfavored ineffective-assistance-of-trial-counsel claims on direct appeal, we shall not entertain an ineffective-assistance-of-PCR-counsel claim on appeal from the denial of a first PCR petition. Ineffective-assistance-of-trial-counsel claims are generally inappropriate for consideration on direct appeal because they "involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J.451, 460 (1992). Likewise, defendant's claim that his PCR counsel was ineffective relies on evidence outside the PCR record presented to Judge McBride.

However, we are satisfied, based on Hicksand Rule3:22-6(d), that a remand is necessary to enable the trial court to consider the grounds for relief that defendant articulated in his September and November 2010 letters. Viewed together, the letters assert the defense theory that defendant had sexual relations with B.S. three days before her assault; B.S. was a prostitute; and that she said she was afraid that her pimp would punish her for failing to collect the full price of her services. Defendant also maintained that his alibi witnesses were willing to testify, but trial counsel did not follow up with them. Defendant presented these arguments in two pro se briefs and expressly asked PCR counsel to convey them to the court.

We recognize the weakness of defendant's factual claims. There is no indication in the record that defendant ever conveyed to trial counsel his claim that he received B.S.'s sexual services on October 20 in Camden. Indeed, trial counsel initially declined to make a proffer as to when prior consensual sexual relations between defendant and B.S. may have occurred in support of his mistrial motion. Trial counsel later suggested that the alleged prior relations between defendant and B.S. occurred in Atlantic City.

Trial counsel cannot be ineffective for failing to investigate a version of events that defendant never conveyed to him. Defendant's version of events may also be questioned based on his omission of any specific mention of his alleged interaction with B.S. in any document until November 2010. In his September 2010 letter, defendant only stated that trial counsel failed to imply that B.S. was a prostitute, without asserting that he was her customer, in Camden, on October 20.

However, it is not for us to evaluate in the first instance defendant's claims for relief. Even if PCR counsel believed the claims lacked merit, he was not free to ignore them. SeeR.3:22-6(d); Webster, supra, 187 N.J.at 258. If counsel did not believe the points merited inclusion in his supplemental brief, counsel was required to convey the pro se briefs as defendant drafted them, or advise defendant to file them himself.

To satisfy his obligation to examine defendant's proposed arguments, PCR counsel was required to present them to the court, and certify "that no further argument or elaboration" was necessary. Hicks, 411 N.J. Super.at 377. Such a certification "will provide the court with a reliable indication that defendant has received the benefits of the attorney's expertise. In the absence of such certification, a reviewing court must presume that counsel did not make a meaningful effort to comply with the requirements of Rule3:22-6(d)." Ibid.

"The remedy for counsel's failure to meet the requirements imposed by Rule3:22-6(d) is a new PCR proceeding." Id.at 376 (citing Rue, supra, 175 N.J.at 4). Defendant should receive the appointment of new PCR counsel and the opportunity to present his claims for relief for adjudication by the trial court.

Reversed and remanded. We do not retain jurisdiction.

 

 

 

 

 

 

1 We remanded for resentencing, finding that the trial court improperly imposed two extended terms, contrary to N.J.S.A. 2C:44-5(a)(2). The original aggregate sentence was sixty years, with an eighty-five percent period of parole ineligibility. However, upon remand, the trial court on November 6, 2009, held that because defendant had previously been convicted of sexual assault and was serving a special sentence of parole supervision for life, the court was obliged to impose extended terms, without parole eligibility, on convictions for kidnapping and sexual assault pursuant to N.J.S.A. 2C:43-6.4(b). No further direct appeal was taken on that issue.

2 As we discussed at length in our opinion on direct appeal, defendant's DNA sample was under an alias. Although use of the word "alias" was to be avoided, the State was not barred from eliciting evidence that defendant's sample was maintained under a different name. Stewart I, supra, slip op. at 11-14.

3 In addition to his 1999 conviction for second-degree sexual assault, defendant was twice convicted of failing to comply with Megan's Law in 2004 and 2005. He also was convicted of theft in 1996, and burglary and CDS distribution in 1998. The court ruled that all convictions, once sanitized, could be used to impeach defendant.

4 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

5 It is unclear from the document whether it was sent to PCR counsel or the court; but we shall assume, for purposes of our opinion, that the letter was sent to counsel.

6 The jury had requested (1) any written statement B.S. may have given to police, or a tape of any pre-trial statement; and (2) a readback of her testimony describing the assault. The trial court responded that the prior statements were not in evidence, except to the extent presented in cross-examination. The excerpts of B.S.'s testimony were read. Defendant asserted in his letter that his trial counsel should have offered the tape of B.S.'s statement.

7 We recognize that certifications upon information and belief are improper. See Patrolman's Benevolent Ass'n of Montclair, Local No. 53 v. Town of Montclair, 70 N.J. 130, 133-34 & n.1 (1976). However, defendant submitted the brief pro se. Therefore, for purposes of our opinion, we shall assume that defendant would have properly certified to the truth of his factual assertions if represented by counsel.