STATE OF NEW JERSEY v. GERALD POHIDA
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0868-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERALD POHIDA,
Defendant-Appellant.
_________________________________
Submitted September 19, 2017 – Decided April 10, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
04-04-0497.
The Buerkle Law Firm, attorney for appellant
(Scott C. Buerkle, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Gerald J. Pohida appeals from a September 11, 2015
order denying his claim for post-conviction relief (PCR) following
an evidentiary hearing. We affirm.
I.
We briefly summarize the procedural history. From June to
October 2003, defendant, then forty-one years-old, engaged in
sexual activities with a thirteen-year-old girl he met on the
internet. Defendant requested to meet the thirteen-year-old's
friends, which resulted in defendant engaging in sexual activities
with a twelve-year-old girl. Defendant was arrested on October
24, 2003, and charged with two counts of first-degree kidnapping,
N.J.S.A. 2C:13-1(b); first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a); two counts of second-degree sexual assault,
N.J.S.A. 2C:14-2(c); two counts of third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree
criminal sexual contact,
N.J.S.A. 2C:14-3(b).
Prior to trial, defendant's trial attorneys Alan Zegas and
Mary Frances Palisano filed a number of pretrial motions, including
a motion under Miranda v. Arizona,
384 U.S. 436 (1966), to suppress
defendant's statement at Sayreville Police Department (SPD)
headquarters on the night of his arrest. Defendant's wife Kerri
Pohida testified that while he was being arrested at their house,
he asked the officers if he could call his lawyer but was told to
2 A-0868-15T2
wait. The trial court did not credit the testimony of defendant's
wife, and denied the motion to suppress.
After an eight-day trial, a jury convicted defendant of all
charges. He was sentenced to thirty years in prison with twenty-
five-year and 85% periods of parole ineligibility under
N.J.S.A.
2C:15-1(c) and
N.J.S.A. 2C:43-7.2, to be served consecutively to
an unrelated sentence.
On appeal, defendant argued that his motion to suppress his
statement to police should have been granted because "the police
did not scrupulously honor his request for counsel." On February
10, 2009, we upheld his June 14, 2006 judgment of conviction,
finding "sufficient credible evidence in the record to support the
judge's finding that defendant did not invoke his right to counsel
when he was at home and defendant voluntarily gave a statement to
the police." State v. Pohida, No. A-6266-05 (App. Div. Feb. 10,
2009) (slip op. at 14) (Pohida I), certif. denied,
199 N.J. 133
(2009).
Defendant filed a PCR petition claiming his trial attorneys
were ineffective. See State v. Pohida, No. A-2408-11 (App. Div.
Sep. 30, 2013) (slip op. at 6) (Pohida II). Defendant's first PCR
counsel, Michael Paul, filed a brief which claimed defendant's
trial attorneys were ineffective in investigating and trying the
case. Defendant replaced Paul with his second PCR counsel, Michael
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Simon. Simon's brief claimed the trial attorneys were ineffective
in not seeking to suppress defendant's statement because the police
ignored a request to cease the interrogation by defendant's
pretrial counsel, Michael Campagna. Defendant cited State v.
Reed,
133 N.J. 237 (1993), which held:
when, to the knowledge of law-enforcement
officers, an attorney has been retained on
behalf of a person in custody on suspicion of
crime and is present or readily available to
assist that person, the communication of that
information to the suspect is essential to
making a knowing waiver of the privilege
against self-incrimination, and withholding
that information renders invalid the suspect's
waiver of the privilege against self-
incrimination.
[Id. at 269.]
Reed also ruled that "whenever the attorney has communicated his
presence and desire to confer with the suspect to an agent of the
State in a position to contact the interrogating officers, we will
impute to those officers knowledge of the attorney's presence and
desire to confer with the suspect." Id. at 264.
Simon supplied certifications from Campagna and defendant's
brother Wayne Pohida in support of the PCR petition.1 Campagna
certified that on the night of defendant's arrest, he called SPD
1
Our opinion on defendant's PCR appeal misidentified Wayne's
certification as being from defendant's father. Pohida II, slip
op. at 14-15.
4 A-0868-15T2
while being driven to the station and requested that any
questioning of defendant should cease until he arrived. Pohida
II, slip op. at 9. Wayne certified he drove Campagna to SPD
headquarters that night and witnessed the phone call. Id. at 14-
15.
The PCR court denied defendant's PCR petition. As to the
Reed issue, the PCR court found that the certifications defendant
provided regarding Campagna's call were "vague, conclusory and
speculative[,]" and denied an evidentiary hearing. Id. at 10.
We reversed and remanded the matter for an evidentiary hearing
solely on whether trial counsel were ineffective for not seeking
to suppress defendant's confession under Reed. Id. at 17. We
found that the certifications supporting defendant's argument,
taken in the light most favorable to defendant, demonstrated a
prima facie case for ineffective assistance of counsel warranting
an evidentiary hearing. Id. at 14-16.
On remand, the PCR court held a five-day evidentiary hearing.
We briefly summarize the testimony and evidence presented at the
hearing.
Defendant called three fact witnesses. His now ex-wife Kerri
testified as follows. On the night of October 24, 2003, defendant
was arrested at their home. While being arrested, defendant
instructed Kerri to call Campagna, a longtime family friend and
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attorney for the Pohida family. She did not know Campagna's phone
number, so she called defendant's brother Wayne and asked him to
call Campagna.
Wayne testified that upon receiving the call from Kerri, he
immediately called Campagna's cell phone. Campagna and Wayne
testified that Campagna said he was having dinner in a restaurant,
and that they made arrangements for Wayne and another brother,
Glenn Pohida, to pick up Campagna at Campagna's home.
Campagna testified that he was picked up by defendant's
brothers and that shortly after they started driving to SPD
headquarters, he called SPD and spoke to one person, whom he
believed was a dispatcher. Campagna "told them who I was, who I
wanted to see, and asked if he was being questioned, to cease
until I got there." Wayne testified Campagna said "he represented
[defendant], he was on his way, and do not question." However,
the phone records for Campagna's cell phone and Wayne's cell phone
did not show an outgoing call to SPD headquarters on the night of
October 24, 2003. Attempts to get the phone records for Glenn's
cell phone were unsuccessful. Neither Wayne nor Campagna could
recall whose cell phone was used to call SPD.2
2
Glenn did not testify at the evidentiary hearing.
6 A-0868-15T2
Wayne and Campagna testified it took fifteen to twenty minutes
to drive SPD headquarters. Campagna testified as follows regarding
the events that transpired upon their arrival. Campagna informed
the desk officer at the door that he represented defendant and
that he wanted to speak with defendant. He was told defendant was
in custody and being questioned. Approximately fifteen minutes
later, Campagna was brought into an interrogation room to speak
to defendant, and was told by Detectives Davern and Fitzsimmons
that their questioning had concluded. After conferring with
defendant, and subsequently speaking to the detectives, Campagna
knew that defendant had given a statement prior to Campagna's
arrival at the interrogation room. However, he did not tell the
detectives that he had called SPD or had to wait to see defendant,
or that they had violated defendant's rights by continuing to
question.
Regarding defendant's trial attorneys, Campagna testified he
never spoke with Zegas about any aspect of defendant's case,
including the Reed issue. Campagna testified that while he may
have spoken with Palisano, he did not believe that he told her
about the Reed issue. Wayne testified that he accompanied
defendant to meetings at Zegas's office prior to the trial, but
that it never occurred to him to tell the trial attorneys about
the Campagna phone call.
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Campagna testified that he referred Simon to the Pohida family
to serve as defendant's second PCR counsel, and that Simon asked
him about his phone call to SPD. Campagna testified he was unsure
if he was aware of the call's legal significance until Simon asked
him about it.
The State called several officers who were working at SPD
headquarters on the night of October 24, 2003. Dispatchers Tom
Fogarty and Beth Freyer each testified they had no recollection
of receiving a call from Campagna or about Pohida that night. They
also testified that, in their more than twenty years as
dispatchers, neither had ever taken a call from an attorney
requesting that police not speak to the client. Both testified
that if they received such a call, they would have made sure the
attorney spoke to the station commander, and they would remember
it. Fogarty testified that all incoming calls to SPD came to the
dispatchers, and that if the dispatchers were busy, a station
commander would pick up an incoming call.
The on-duty SPD station commanders on the evening of October
24, 2003, were Sergeant Ray Szkodny and Sergeant Glenn Skarzynski,
who would take over when Szkodny was on break. Neither recalled
getting a call from Campagna or about Pohida that night. Each
testified that, in his approximately twenty years of service, he
never received a call from a lawyer asking the police to refrain
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from questioning a client, and that they would remember such a
call. Both testified that an attorney coming into the station
would interact with the station commander at his desk by the door
to SPD headquarters. Neither Szkodny nor Skarzynski could recall
interacting with Campagna at the station on October 24, 2003.
Detectives Kenneth Davern and Jack Fitzsimmons questioned
defendant at SPD headquarters that night. Davern testified
defendant was advised of his Miranda rights, and given a pre-
interview prior to the recording his statement. Fitzsimmons and
Davern each testified that they were not informed before or during
the pre-interview or the statement that Campagna had called or was
at the station, and that if so informed they would have stopped
the interview. The detectives testified they were informed
Campagna was at SPD headquarters when Sergeant Richard Sloan
knocked on the door after defendant had completed his statement.
Fitzsimmons testified Campagna did not say he had called the police
station that night. Fitzsimmons' contemporaneous police report
stated that when Sloan said Campagna had arrived, "the interview
of [defendant] ceased, and his attorney was escorted into the
conference room, where he was able to meet with his client."
Sergeant Sloan testified he was taking inventory of evidence
seized from defendant's residence when he received a call which
he believed came from a station commander, that an attorney had
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arrived at the station to see defendant. Sloan testified he
immediately met Campagna and immediately brought him to the
interview room where defendant's interview had been completed.
The State also called defendant's trial attorneys. Zegas
testified as follows. Shortly after he substituted onto the case
he spoke to Campagna. He was aware of Campagna's visit to SPD
headquarters on the night of defendant's arrest, and asked Campagna
questions regarding Campagna's contact with SPD and arrival at the
station, and whether defendant had been questioned in violation
of his rights. In response, Campagna told Zegas that when he
arrived at SPD headquarters, he was informed the questioning of
defendant "was over." Campagna never suggested he contacted SPD
prior to his arrival at the station. If he had, Zegas would have
moved to suppress on that basis.
Zegas testified that he met with Wayne, who never claimed he
overheard Campagna calling SPD. Moreover, Zegas also testified
that defendant was "very active in his defense," and that defendant
never mentioned Campagna's alleged call to SPD, including when the
defense team "went over the statement very carefully with
[defendant]."
Palisano testified that shortly after defendant's initial
meeting with the firm, Zegas told her that he had spoken to
Campagna, who said he had not arrived at the police station in
10 A-0868-15T2
time to intervene before defendant gave his statement. Palisano
testified that Zegas used this sequence of events as an example
of why their firm's practice was to always call and then fax a
letter of representation to police departments in similar
circumstances. Palisano testified that she was familiar with
Reed, and that if Campagna had called or been made to wait at the
police station prior to speaking with defendant, she would have
moved to suppress on that basis.
The State subpoenaed second PCR counsel Simon, who testified
as follows. He substituted in to handle defendant's PCR petition
after being referred by Campagna. Shortly thereafter, he attended
a meeting where Campagna introduced him to members of defendant's
family. During that September 2010 meeting, Campagna claimed that
he called SPD and requested they cease questioning defendant, and
that SPD had not honored his request. Campagna must have been the
source of this information, which Simon used in the PCR brief,
because there was no other evidence through which he could have
independently discovered it.
Defendant testified as a rebuttal witness that he sent his
first PCR counsel Paul a letter dated August 4, 2010, in which he
specifically raised the Reed issue. Paul died in 2014. A
paralegal who had worked for Paul testified he was unable to locate
11 A-0868-15T2
in Paul's files or on his computer a copy of the letter defendant
claims to have sent.
On cross-examination, defendant testified as follows. When
he met with Campagna on the night of his arrest at SPD
headquarters, Campagna did not inform him that he had called SPD
or been made to wait before seeing defendant. Defendant recalled
first learning of Campagna's alleged phone call from his brother
David Pohida during a prison visit. Thereafter, defendant
discovered the Reed issue while doing legal research in the prison
library. Defendant did not raise the Reed issue to his lawyers
or judges between 2006 and 2010 because it was his understanding
the issue could only be raised at PCR, not on direct appeal.
Defendant never spoke to Campagna directly about the Reed issue.
In a September 11, 2015 written decision, the PCR court denied
defendant's petition. The court found insufficient evidence to
substantiate the claim that Campagna called SPD and requested the
police stop questioning defendant until Campagna arrived. Thus,
the court concluded there was no Reed issue and defendant's trial
counsel were not ineffective for not raising a Reed issue.
Defendant appeals, arguing:
I. THE TESTIMONY ELICITED FROM MICHAEL SIMON
RELATED TO THE GENESIS OF HIS LEGAL THEORIES
VIOLATED THE ATTORNEY WORK-PRODUCT PRIVILEGE.
12 A-0868-15T2
a. Mr. Simon's testimony cannot be
justified by N.J.R.E. 504(2)(c).
b. Mr. Pohida did not make a knowing
and voluntary waiver of the attorney-
client privilege.
II. THE CROSS-EXAMINATION OF GERALD POHIDA
INFRINGED UPON ATTORNEY WORK PRODUCT AND THE
ATTORNEY-CLIENT PRIVILEGE.
a. The State's cross-examination of
Gerald Pohida infringed upon defendant's
attorney work product privilege.
b. The State's cross-examination of
Gerald Pohida violated the attorney-
client privilege.
III. THE COURT'S EXAMINATION OF WAYNE POHIDA
CALLED FOR TESTIMONY FOR WHICH HE HAD NO
PERSONAL KNOWLEDGE.
IV. THE COURT'S FINDING WAS AGAINST THE
WEIGHT OF THE EVIDENCE.
V. THE COURT'S DECISION WAS INCONSISTENT AND
THE MATTER SHOULD BE REMANDED FOR
CLARIFICATION.
II.
Defendant claimed his trial attorneys were ineffective for
failing to discover Campagna's alleged phone call to SPD and to
file a motion to suppress under Reed. To show ineffective
assistance of counsel, defendant had to meet the two-pronged test
of Strickland v. Washington,
466 U.S. 668 (1984), adopted in State
v. Fritz,
105 N.J. 42 (1987). "The defendant must demonstrate
first that counsel's performance was deficient, i.e., that
13 A-0868-15T2
'counsel made errors so serious that counsel was not functioning
as the "counsel" guaranteed the defendant by the Sixth Amendment.'
In making that demonstration, a defendant must overcome a strong
presumption that counsel rendered reasonable professional
assistance." State v. Parker,
212 N.J. 269, 279 (2012) (quoting
Strickland,
466 U.S. at 687).
Second, "a defendant must also establish that the
ineffectiveness of his attorney prejudiced his defense. The
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 279-80 (quoting
Strickland,
466 U.S. at 694). "A defendant asserting ineffective
assistance of counsel on PCR bears the burden of proving his or
her right to relief by a preponderance of the evidence." State
v. Gaitan,
209 N.J. 339, 376 (2012).
We first address defendant's claim that the PCR court's
decision was against the weight of the evidence. We review any
legal conclusions de novo. State v. Nash,
212 N.J. 518, 540-41
(2013). Where a PCR court has held an evidentiary hearing, the
appellate standard or review "is necessarily deferential to a PCR
court's factual findings based on its review of live witness
testimony." Id. at 540. "An appellate court's reading of a cold
record is a pale substitute for a trial judge's assessment of the
14 A-0868-15T2
credibility of a witness he has observed firsthand." Ibid. "In
such circumstances we will uphold the PCR court's findings that
are supported by sufficient credible evidence in the record."
Ibid.
"We defer to the findings of the PCR court in weighing witness
testimony when those findings are supported by sufficient credible
evidence in the record." Id. at 553. A reviewing court may not
set aside a factfinder's conclusion "as against the weight of the
evidence unless, having due regard to the opportunity of the
[factfinder] to pass upon the credibility of the witnesses, it
clearly and convincingly appears that there was a manifest denial
of justice under the law." See R. 3:20-1; see also State v.
Armour,
446 N.J. Super. 295, 305-06 (App. Div. 2016), certif.
denied,
228 N.J. 239 (2016); R. 2:10-1. We must hew to our
standard of review.
Defendant's brief acknowledges that the PCR court credited
the testimony of the police officers and discredited Wayne and
Campagna, and that "without making a direct finding that Campagna
is lying, the [c]ourt clearly conclude[d] that no such phone call
occurred." The court found there was "insufficient evidence to
substantiate this claim." The court also found "Campagna simply
arrived at the [SPD headquarters] too late, after [defendant] had
concluded his statement."
15 A-0868-15T2
We find no manifest denial of justice. The only testimony
that Campagna called SPD was from defendant's brother Wayne and
from Campagna, whom the PCR court found was not only defendant's
lawyer but "the Pohida family lawyer and a close family friend."
See State v. Scott,
229 N.J. 469, 481 (2017) (ruling the bias or
interest of a witness bears upon his credibility). Their cellphone
records had no record of such a call, and there was no evidence
they used the only other available phone, belonging to defendant's
brother Glenn. Campagna claimed he demanded that the police not
question defendant, but he made no such claim to the station
commander he encountered when he entered SPD headquarters, to
Sergeant Sloan who escorted him to the interview room, to the
detectives conducting the interview, or to defendant, even though
all of them told him defendant had been questioned. It is
undisputed Campagna did not mention his alleged call or the
improper questioning to Wayne and Glenn that night, to defendant's
trial attorneys, or indeed to anyone involved in the case for over
six years.
Defendant claims the State was unable to directly contradict
the testimony of Campagna and Wayne that Campagna called SPD
demanding the police not question defendant. To the contrary, the
two SPD dispatchers who would have received any call, and the two
SPD station commanders who would have handled such a call,
16 A-0868-15T2
testified that they had no memory of such a call from Campagna,
and that they would remember if an attorney had called demanding
the police stop questioning his client. The dispatchers testified
they would have immediately brought such a call to the attention
of the station commanders, and the station commanders, the
escorting sergeant, and the detectives all testified such a demand
would have caused them to stop the questioning immediately.
Defendant notes the station commanders, Sergeants Szkodny and
Skarzynski, also testified that they did not remember Campagna
showing up at the station that night. However, Campagna testified
that all he did on arrival was to say he represented defendant and
wanted to speak with him. Although the station commanders said
they would remember that too, the PCR court could find that would
have been far less memorable than an attorney calling up during
an interrogation demanding the police stop questioning his client.
The PCR court could properly credit the officers' consistent
testimony that such a phone call never occurred. Accordingly, the
PCR court's factual findings were supported by sufficient credible
evidence.
III.
Defendant also argues that the PCR court's written decision
was inconsistent and should be remanded for clarification. He
cites a statement in the written decision: "The Court accepts Mr.
17 A-0868-15T2
Campagna's testimony that he made this phone call, despite the
lack of physical proof and that Mr. Campagna could not recall
whose phone he used." Defendant argues that the commonly-accepted
meaning of the word "accept" is "to consider as true." Defendant
argues this statement cannot be reconciled with the court's
conclusion that no such phone call occurred.
The State argues that "accepts" meant the PCR court accepted
that Campagna believed his statements were true. We believe that,
read in context, the PCR court's use of "accept" indicated that
it acknowledged Campagna's testimony but discredited it "without
making a direct finding that Campagna is lying," as defendant
concedes.
The PCR court's decision first noted there was no evidence
supporting the claims of Campagna and Wayne. The decision stated
that "[t]he phone records of Mr. Campagna and Wayne reflect no
such call was made to the police station," and that no records
could be obtained for Glenn's phone.
Thereafter, the PCR court's decision found Campagna's claim
not credible. The decision stated that "[i]t is unreasonable to
believe that when Mr. Zegas and Ms. Palisano took over
representation of the Defendant, Mr. Campagna failed to inform
them of this supposed Reed issue." The court found that Campagna,
"certainly would have shared this information not only with Mr.
18 A-0868-15T2
Zegas and Ms. Palisano, but with Defendant's family as well,
especially considering Mr. Campagna drove home from the police
station that evening with the Defendant's two brothers." The
court credited Zegas' testimony that when he asked Campagna about
the events of that night, Campagna merely stated, "by the time I
got to see [defendant], it was over." As such, the court concluded
that "Campagna's silence [in response to Zegas] on any police
wrongdoing is akin to an express affirmation that all was handled
properly."
Moreover, the PCR court noted that if Campagna, in speaking
with defendant, had discovered the detectives had continued to
question defendant after Campagna's call, and Campagna had told
defendant, "it is highly unreasonable to believe that the defendant
would not have brought this to the Court's attention."
The PCR court found "insufficient evidence to substantiate
[defendant's] claim" that "Campagna telephoned [SPD] to cease
questioning." The court also found that "Defendant's statement
had already concluded" before "Campagna's arrival at the police
station." The court concluded: "Therefore, there is no State v.
Reed issue, and Mr. Zegas and Ms. Palisano were not ineffective
for failing to raise such issue at the suppression hearing."
Thus, any initial ambiguity that arose as a result of the PCR
court's statement that it "accepts Mr. Campagna's testimony that
19 A-0868-15T2
he made this phone call," was quickly and unambiguously dispelled.
Defendant acknowledges as much in his brief, stating "the [c]ourt
clearly concluded that no such phone call occurred." Thus, a
remand for clarification is not warranted.
IV.
As the PCR court believed the police officers and disbelieved
defendant's evidence that Campagna called SPD or otherwise tried
to stop the questioning before the questioning was concluded,
defendant failed to establish the factual predicate of his
ineffectiveness claim. Moreover, even assuming the alleged call
had occurred, defendant would still have to show the trial
attorneys were deficient in their investigation into a potential
Reed issue based on a call no one told them about. Despite being
questioned by the trial attorneys, Campagna and Wayne denied
telling them about the alleged call and the PCR court credited the
trial attorneys' testimony they were unaware of any such call.
The court found "it was not necessary for Mr. Zegas to ask
additional follow-up questions to Mr. Campagna, as the Defense now
argues, because Mr. Campagna's silence on any police wrongdoing
is akin to an express affirmation that all was handled properly."
The extent of trial counsel's investigation "must be directly
assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments." State v.
20 A-0868-15T2
Perry,
124 N.J. 128, 154 (1991) (quoting Strickland,
466 U.S. at
691). Moreover,
[t]he reasonableness of counsel's actions may
be determined or substantially influenced by
the defendant's own statements or actions.
Counsel's actions are usually based, quite
properly, on informed strategic choices made
by the defendant and on information supplied
by the defendant. In particular, what
investigation decisions are reasonable
depends critically on such information.
[State v. DiFrisco,
174 N.J. 195, 228 (2002)
(quoting Strickland,
466 U.S. at 691).]
"Thus, when the 'defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even
harmful, counsel's failure to pursue those investigations may not
later be challenged as unreasonable.'" State v. Martini,
160 N.J.
248, 266 (1999) (quoting Strickland,
466 U.S. at 691). The trial
attorneys "cannot be faulted for failing to expend time or
resources analyzing events about which they were never alerted."
DiFrisco,
174 N.J. at 228 (finding counsel's investigation was not
deficient where "neither defendant's family nor defendant
mentioned [the alleged information] in interviews with the defense
team").
In addition, defendant also had to prove prejudice. If a
trial "counsel's failure to litigate a [suppression] claim
competently is the principal allegation of ineffectiveness, the
21 A-0868-15T2
defendant must also prove that his [suppression] claim is
meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence
in order to demonstrate actual prejudice." Perry,
124 N.J. at 153
(quoting Kimmelman v. Morrison,
477 U.S. 365, 375 (1986)).
In his statement to the detectives, defendant admitted
meeting the thirteen-year-old, but denied engaging in any sexual
activity with her. The State argues that other evidence
established the meeting and the sex occurred, and that the evidence
of defendant's guilt of all the crimes was overwhelming. As
defendant failed to prove the trial attorneys were deficient, we,
like the PCR court, need not determine whether he proved prejudice.
V.
Defendant argues that testimony elicited from second PCR
counsel Simon during the evidentiary hearing violated his
attorney-client privilege, and intruded upon the attorney work-
product privilege. We disagree.
"[C]ommunications between lawyer and his client in the course
of that relationship and in professional confidence, are
privileged." N.J.R.E. 504(1) (quoting
N.J.S.A. 2A:84A-20(1)).
However, this privilege does not extend "to a communication
relevant to an issue of breach of duty by the lawyer to his
client[.]" N.J.R.E. 504(2)(c) (quoting
N.J.S.A. 2A:84A-20(2)(c)).
22 A-0868-15T2
Under this exception, the privilege "does not extend to
communications relevant to an ineffective-assistance-of-counsel
claim." State v. Bey,
161 N.J. 233, 296 (1999).
The PCR court suggested this exception applied and waived the
privilege as to all prior counsel.3 Simon's communications with
Campagna were relevant to an issue of breach of duty by Zegas and
Palisano, but Simon was not the lawyer whom defendant accused of
breach of duty. We need not reach whether the exception extends
beyond the lawyer accused of ineffectiveness because defendant
waived the attorney-client privilege before Simon testified.
Current PCR counsel initially objected to the State's
subpoena of Simon because his testimony would not be "relevant
with regards to the trial counsel's work." The PCR court responded
that Campagna had testified about his communications with Simon.4
When Simon appeared in court, current PCR counsel asked the
PCR court to instruct Simon on attorney-client issues. The
prosecutor wondered if defendant "would be willing to waive the
privilege." Current PCR counsel and defendant conferred off the
3
The PCR court also stated that the remand for an evidentiary
hearing required a broad inquiry into the Reed issue. However,
nothing in our opinion remanding the case, or in the law governing
PCR petitions, removed the need to respect applicable privileges.
See N.J.R.E. 101(a)(1).
4
Defendant does not renew the relevance objection on appeal.
23 A-0868-15T2
record. The court asked if defendant "was willing to waive?"
Current PCR counsel responded that defendant waived the privilege:
Your Honor, I have spoken to my client . . .
I said this before, I'm not too sure how Mr.
Simon's testimony is relevant to the PCR issue
before the Court . . . . That being said, my
client has no problem with waiving the
attorney/client privilege with regard to Mr.
Simon's representation of him as to the PCR.
Simon then testified without objection. When current PCR counsel
asked a question about what defendant told Simon about his first
PCR attorney Paul, current PCR counsel reiterated that defendant
"has waived" the privilege. The prosecutor never asked Simon
about any "communications between lawyer [Simon] and his client"
defendant. N.J.R.E. 504(1).
On appeal, however, defendant claims his waiver of the
privilege was not "knowing and voluntary" because the PCR court
did not directly address him and ask if he wished to waive the
privilege, tell him he had no obligation to do so, warn him of the
risks, or ask if he was doing so without coercion or duress.
However, there is nothing in the record to indicate that defendant
was unaware of any risk or his right not to waive, that current
PCR counsel coerced him in open court, or that if asked he would
have made a different decision than what counsel announced in
front of him after consulting with him.
24 A-0868-15T2
Defendant notes the court's statement days earlier, after
Campagna raised his conversations with Simon, that Simon "might
be an interesting witness." However, review of the record shows
the court did not coerce defendant to waive the privilege; as
defendant admits, the court believed "a waiver from [defendant]
was not necessary."
Moreover, defendant fails to cite any authority that such an
inquiry is required for an effective waiver of attorney-client
privilege. Although it is the client's decision whether to waive
the attorney-client privilege, "an attorney or agent may exercise
this power [when] acting with a client's authority." State v.
Davis,
116 N.J. 341, 362 (1989). The attorney-client privilege
is a statutory right, not a constitutional right. Even for
"substantial rights that implicate the Constitution but are not
explicitly identified therein," effective waivers only "require
defense counsel to explain the ramifications of waiver to the
client before acting on that waiver in court. However, an on-the-
record waiver by the client is not required." State v. Buonadonna,
122 N.J. 22, 35 (1991).
Indeed, the attorney-client privilege can be waived in a
variety of ways, without an on-the-record inquiry by the court.
See State v. Mauti,
208 N.J. 519, 531-32 (2012). The privilege
can be waived if the defendant "contracted" to do so, or "made
25 A-0868-15T2
disclosure of any part of the privileged matter or consented to
such a disclosure made by anyone." N.J.R.E. 530 (quoting
N.J.S.A.
2A:84A-29). "In addition to the explicit contract and disclosure
waiver provisions of that rule, our courts have also recognized
that a privilege may be waived 'implicitly' where a party puts a
confidential communication 'in issue' in a litigation. Mauti,
208 N.J. at 532 (quoting Kinsella v. Kinsella,
150 N.J. 276, 300 (1997)
(citation omitted)).
Defendant waived the privilege implicitly as well as
explicitly. By calling his former counsel Campagna as a witness,
"defendant waived the attorney-client privilege" as to Campagna's
conversations. Bey,
161 N.J. at 296. Defendant did not object
when Campagna testified about his conversations with Simon,
putting those conversations in issue. A "client cannot 'use the
privilege as a sword rather than a shield,' and thereby 'divulge
whatever information is favorable to [the client's] position and
assert the privilege to preclude disclosure of the detrimental
facts.'" In re Grand Jury Subpoena Issued to Galasso,
389 N.J.
Super. 281, 298 (App. Div. 2006) (quoting United Jersey Bank v.
Wolosoff,
196 N.J. Super. 553, 567 (App. Div. 1984)); see Kinsella,
150 N.J. at 301 (citing Wolosoff).
Defendant also contends Simon's testimony violated the work-
product doctrine. However, defendant did not mention the work-
26 A-0868-15T2
product doctrine in the PCR court. Therefore, he must show plain
error. Under the plain error standard, "defendant has the burden
to show that there is an error, that the error is 'clear' or
'obvious,' and that the error has affected 'substantial rights.'"
State v. Chew,
150 N.J. 30, 82 (1997) (quoting United States v.
Olano,
507 U.S. 725, 734 (1993)). To show such an effect,
defendant has the burden of proving the error was "clearly capable
of producing an unjust result[.]" R. 2:10-2.
Defendant cites Hickman v. Taylor,
329 U.S. 495 (1947), which
originated the work-product doctrine, but "[t]hat was a civil case
arising in the federal courts and, though it was admittedly
concerned with pretrial discovery of written statements of
prospective witnesses, it did not enunciate any constitutional
principle and has no controlling force" in state criminal cases.
State v. Montague,
55 N.J. 387, 401 (1970).
Defendant also cites Rule 4:10-2(c), but that is "the civil
work product privilege." Galasso,
389 N.J. Super. at 299. Rule
4:10-2 has no applicability to criminal cases. Compare R. 4:1
("The rules in Part IV . . . govern the practice and procedure of
civil actions") with R. 3:1-1 ("The rules in Part III govern the
practice and procedure in all indictable . . . proceedings").
"In New Jersey, the attorney work product privilege
applicable to criminal cases is codified in R. 3:13-3(c)," now
27 A-0868-15T
2 Rule 3:13-3(d) in the criminal discovery rule. State v. DeMarco,
275 N.J. Super. 311, 317 (App. Div. 1994). Rule 3:13-3(d)
provides:
(d) Documents Not Subject to Discovery. This
rule does not require discovery of a party's
work product consisting of internal reports,
memoranda or documents made by that party or
the party's attorney or agents, in connection
with the investigation, prosecution or defense
of the matter nor does it require discovery
by the State of records or statements, signed
or unsigned, of defendant made to defendant's
attorney or agents.
By its terms, the criminal work-product rule protects from
discovery only "documents," such as "internal reports, memoranda,"
"records or statements." Ibid. Therefore, the criminal work-
product rule does not address whether an attorney can be called
as a witness, which is instead governed by the attorney-client
privilege and the rules of evidence.
Defendant relies on the final sentence of inapplicable civil
work-product rule:
(c) Trial Preparation; Materials. Subject
to the provisions of R. 4:10-2(d), a party may
obtain discovery of documents, electronically
stored information, and tangible things
otherwise discoverable under R. 4:10-2(a) and
prepared in anticipation of litigation or for
trial by or for another party or by or for
that other party's representative (including
an attorney, consultant, surety, indemnitor,
insurer or agent) only upon a showing that the
party seeking discovery has substantial need
of the materials in the preparation of the
28 A-0868-15T2
case and is unable without undue hardship to
obtain the substantial equivalent of the
materials by other means. In ordering
discovery of such materials when the required
showing has been made, the court shall protect
against disclosure of the mental impressions,
conclusions, opinions, or legal theories of
an attorney or other representative of a party
concerning the litigation.
[R. 4:10-2(c) (emphasis added).]
Even if the civil work-product rule applied to this criminal
case, its final sentence only limits the "discovery of such
materials," namely "documents, electronically stored information,
and tangible things." Ibid.; see Tractenberg v. Twp. of W. Orange,
416 N.J. Super. 354, 374 (App. Div. 2010) ("The work product
privilege offers qualified protection from disclosure of
documents"). By its terms, the civil rule too does not govern
whether an attorney may be called as a witness.5
Defendant cites Halbach v. Boyman,
377 N.J. Super. 202 (App.
Div. 2005), where we ruled an attorney objecting to being
questioned "about his legal theories and strategies" in
representing himself pro se was "entitled to the protections
5
Defendant also cites the federal civil work-product rule, but it
similarly covers "documents and tangible things." Fed. R. Civ.
P. 26(b)(3)(A); see In re EchoStar Commc'ns. Corp.,
448 F.3d 1294,
1301 (Fed. Cir. 2006) ("Unlike the attorney-client privilege,
which protects all communication whether written or oral, work-
product immunity protects documents and tangible things, such as
memorandums, letters, and e-mails.").
29 A-0868-15T2
afforded by Rule 4:10-2(c)." Id. at 206-09. Even assuming Halbach
properly extended the civil work-product rule beyond documents and
tangible things, the civil rule does not apply to criminal cases,
and the language relied on by defendant and Halbach does not appear
in the criminal work-product rule. Moreover, no case has expanded
the criminal work-product rule beyond its plain language. Thus,
defendant cannot show that any error was clear or obvious under
the law "at the time of appellate consideration." Johnson v.
United States,
520 U.S. 461, 468 (1997); see Chew,
150 N.J. at 82.
In any event, the PCR court ensured Simon was not questioned
about his mental impressions, conclusions, opinions, or legal
theories regarding defendant's defense to the criminal charges.
Moreover, defendant has not shown that Simon was questioned about
his mental impressions, conclusions, opinions, or legal theories
regarding the Reed issue. Defendant cites questions asking whether
Campagna told Simon about his alleged call to SPD, but those
questions merely addressed a factual issue about which Campagna
had already testified.
Defendant complains Simon contradicted Campagna. However,
defendant cannot call one of his attorneys as his main witness,
have him give his version of his conversation with another
attorney, and use the work-product rule to prevent that version
from being questioned. "'[A] litigant cannot use the work product
30 A-0868-15T2
doctrine as both a sword and shield by selectively using the
privileged [information or documents] to prove a point but then
invoking the privilege to prevent an opponent from challenging the
assertion.'" In re Grand Jury Proceedings,
616 F.3d 1172, 1185
n.24 (10th Cir. 2010) (alteration in original) (citation omitted).
A criminal defendant cannot "advance the work product doctrine to
sustain a unilateral testimonial use of work product materials"
while preventing the prosecution from rebutting it. United States
v. Nobles,
422 U.S. 225, 239-40 (1975); see State v. Mingo,
77 N.J. 576, 585 (1978).
In any event, defendant cannot show prejudice. In its
opinion, the PCR court made no mention of this contradiction.
Indeed, the court's opinion did not mention Simon or any of his
testimony. The court gave numerous reasons for discrediting
Campagna, none of which involved Simon's testimony. Thus,
defendant has failed to show plain error. See Bey,
161 N.J. at
296 (finding no violation of the attorney-client privilege where
the allegedly privileged communications "neither were referred to
by the PCR court in its opinion nor are the bases for any
conclusions by this Court").
VI.
Defendant also claims the PCR court erred in allowing his
brother Wayne to be questioned about how Simon learned of
31 A-0868-15T2
Campagna's alleged telephone call. However, defendant did not
object to any of the questions he now cites. Therefore, defendant
must show plain error. Again, defendant cannot show plain error
because the PCR court's opinion does not even mention Simon or his
testimony, let alone Wayne's testimony about Simon.
In any event, defendant's claim fails. Wayne was asked about
his affidavit, submitted with Simon's PCR brief, which stated that
Campagna made the alleged call while Wayne drove him to SPD
headquarters. Wayne testified the affidavit was prepared by
Simon's office. The PCR court asked how Simon knew what occurred
on the drive. Wayne said "I'm going to assume," and the court
interrupted, telling Wayne it did not "like you assuming." Wayne
testified he "really believe[d]" Simon spoke with Campagna. When
Wayne said he would "have to use assume," the court explained it
was proper for Wayne to "make an inference. . . . If you didn't
tell it to [Simon], then somebody had to. And it had to be you,
[Campagna], or the other [person] in the car, your brother
[Glenn]." Wayne testified he was "assuming Mr. Campagna explained
it to [Simon] first," because Simon already knew the events of the
drive when he questioned Wayne. Wayne said "[t]hat's how I believe
it happened, Your Honor."
Defendant argues the PCR court asked Wayne to testify about
matters of which he had no personal knowledge. N.J.R.E. 602 states
32 A-0868-15T2
"a witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter." However, a non-expert "witness'
testimony in the form of opinions or inferences may be admitted
if it (a) is rationally based on the perception of the witness and
(b) will assist in understanding the witness' testimony or in
determining a fact in issue." N.J.R.E. 701; see State v. Chen,
208 N.J. 307, 319 (2011).
Wayne inferred that, as Simon knew Wayne drove Campagna to
the police station, and as Wayne did not tell Simon, Campagna must
have told Simon. This was a rational inference based on Wayne's
perception. Moreover, this information was relevant to
determining the veracity of Campagna's testimony that Simon
learned of Campagna's alleged phone call to SPD independently.
Thus, Wayne's testimony was properly admitted pursuant to N.J.R.E.
701; see State v. Johnson,
309 N.J. Super. 237, 263 (App. Div.
1998).
VII.
Defendant additionally argues when the State cross-examined
him, his work-product and attorney-client privileges were
violated. Current defense counsel sought to call defendant for
the limited purpose of authenticating the letter he allegedly
wrote raising the Reed issue to Paul, his deceased first PCR
33 A-0868-15T2
counsel. The court ruled the prosecutor could cross-examine
defendant on how the Reed issue arose and whether it was revealed
to his earlier counsel.
Defendant claims that during his cross-examination, his
attorney-client privilege was violated by questions about whether
Campagna told him at SPD headquarters on the night of his arrest
that Campagna had called SPD, that Campagna had been made to wait,
or that there was a problem. However, defendant called Campagna
to testify about this and other issues, thereby placing their
otherwise protected communications in issue. "By allowing
[Campagna] to testify, defendant waived the attorney-client
privilege." Bey,
161 N.J. at 296. Defendant cannot use his
attorney-client privilege as a shield because he "create[d] the
'need' for disclosure of those confiden[tial communications] to
the adversary." Mauti,
208 N.J. at 532.
Defendant raises two new issues on appeal. First, defendant
claims the prosecutor violated his attorney-client privilege by
asking him if he told his appellate counsel about the Reed issue.
However, defendant did not object to the prosecutor's questions
or claim attorney-client privilege regarding appellate counsel.
Second, defendant claims the prosecutor violated his "work
product privilege" by eliciting that he learned about the Reed
issue by doing research in the prison law library, and that he did
34 A-0868-15T2
not tell the court or counsel because he understood he could not
raise the issue on direct appeal, only on PCR. However, he did
not object to the prosecutor's questions or ever raise a work-
product argument.
Thus, defendant must show plain error. He cites Rule 4:10-
2(c) and Halbach's dicta that "[e]ven a non-lawyer 'who creates
work-product material before hiring an attorney' is entitled to
invoke the work product privilege."
377 N.J. Super. at 208
(citation omitted). Even assuming Halbach properly extended the
civil work-product rule beyond attorney work-product, the civil
rule does not apply to criminal cases. The prosecutor's question
did not violate the criminal work-product rule because it did not
seek "documents," such as "internal reports, memoranda," "records
or statements." R. 3:13-3(d). No case has expanded the criminal
work-product rule in the manner suggested by Halbach. Thus,
defendant cannot show that any error was clear or obvious under
the law "at the time of appellate consideration." Johnson,
520 U.S. at 468.
In any event, the PCR court's opinion did not mention
defendant's prison research or his appellate counsel. The court
said it could not "ignore the fact that the Defendant remained
silent for half a decade," but that was the least of the PCR
court's numerous reasons for discrediting the testimony of
35 A-0868-15T2
Campagna and Wayne that Campagna called SPD and demanded
questioning cease. Thus, defendant has not shown any error was
"clearly capable of producing an unjust result[.]" R. 2:10-2.
Affirmed.
36 A-0868-15T2
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