STATE OF NEW JERSEY v. EDDIE V. DAVIS

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1460-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

EDDIE V. DAVIS,

Defendant-Appellant.
_______________________

Submitted November 4, 2021 – Decided November 24, 2021

Before Judges Hoffman, Whipple, and Suter.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 14-07-2234.

Joseph E. Krakora, Public Defender, attorney for
appellant (Amira Scurato, Designated Counsel;
Michele A. Adubato, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Sarah C. Hunt, Deputy Attorney General,
of counsel and on the brief).

PER CURIAM
Defendant Eddie V. Davis appeals the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For reasons that follow,

we affirm.

Defendant was convicted by a jury of second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(l); and third-degree aggravated assault, N.J.S.A. 2C:12-

l(b)(7). He was acquitted of aggravated sexual assault, N.J.S.A. 2C:12-1(b)(1).

On the second-degree sexual assault conviction, defendant was sentenced to ten

years imprisonment with eighty-five percent parole ineligibility pursuant to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced to a

consecutive term of five years imprisonment with a two-and-one-half year

period of parole ineligibility for the third-degree aggravated assault conviction.

Defendant filed a direct appeal. We affirmed his conviction and sentence

in an unpublished opinion. State v. Davis, No. A-5092-15 (App. Div. Jan. 16,

2018) (slip op. at 3, 13). The Supreme Court denied his petition for certification.

State v. Davis, 233 N.J. 615 (2018).

The facts underlying defendant's convictions are set forth in our prior

opinion, which we briefly relate here:

At trial, C.J. provided [the] following testimony.
C.J. explained that she and defendant had an "off and

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on" romantic relationship from 2012 until 2014. After
the relationship ended, C.J. allowed defendant to
remain living in her home because he had nowhere else
to stay.

On the evening of February 7, 2014, C.J. visited
her brother and returned home at approximately one
o'clock in the morning; upon returning home, defendant
grabbed her arm and forced her into the living room
where she fell. Defendant proceeded to punch C.J. "a
couple times" in the face, causing her to bleed from the
mouth and nose. Defendant then began choking C.J.,
digging his fingernails into the back of her neck, while
forcing her into the bedroom and continuing to hit her.
C.J. tried to tell defendant to stop and to fight him off,
but defendant continued beating her.

When in the bedroom, defendant threw C.J. to the
floor and kicked her; he then picked her up from the
floor and threw her on the bed. Defendant proceeded
to have nonconsensual vaginal intercourse with C.J.
Afterward, defendant would not allow C.J. to go to the
bathroom to clean up. C.J. asked defendant to let her
go to the hospital, but he refused and would not let her
leave the bed for the rest of the night. The following
day, defendant did not go to work and instead stayed
with C.J., preventing her from leaving the home or
calling anyone. Defendant told C.J. he did not want her
to go to the hospital because she would have him
"locked up."

The following day, defendant went to work.
After he left, C.J. showered and cleaned herself up, and
then called 9-1-1. Police arrived and an ambulance
took C.J. to the hospital. At the hospital, a Sexual
Assault Nurse Examiner (SANE), Mary Lou Kline,
examined C.J.

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[Davis, slip op. at 3.]

Defendant filed a pro se PCR petition in August 2018. He was assigned

counsel. An amended PCR petition was filed on his behalf on June 5, 2019.

The amended PCR petition argued defendant's trial counsel was ineffective for

"[a]llowing testimony to be admitted that [defendant] was a ten time repeat

offender, meaning that he had nine prior domestic violence offenses, when this

information served no strategic purpose other than to cause undue prejudice to

[defendant]." It also alleged ineffective assistance for "[f]ailing to request a jury

instruction that prior inconsistent statements made by [C.J.] were admissible as

substantive evidence."

On October 11, 2019, the PCR court denied defendant's PCR petition. It

also granted defendant's request to withdraw his previously filed pro se brief.

The PCR court rejected defendant's argument about his trial counsel's failure to

request a specific jury instruction. The court held this argument was

procedurally barred under Rule 3:22-5 and State v. Afanador, 151 N.J. 41

(1997), because it was "substantially the equivalent issue that was raised before

the Appellate Division that was already litigated and ruled on." The PCR court

also rejected defendant's claim his trial counsel provided ineffective assistance

A-1460-19
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by inquiring into prior domestic violence filings because this was done for

"strategic purposes" and was "basically or virtually, unchallengeable."

Defendant appealed the October 11, 2019, order. On appeal, defendant

raises these issues:

POINT I

DEFENDANT'S PCR CLAIMS WERE NOT
PROCEDURALLY BARRED BY R. 3:23-5.

POINT II

THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE FAILED
TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.

A. LEGAL PRINCIPLES.

B. COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST A JURY
INSTRUCTION THAT THE PRIOR
INCONSISTENT STATEMENTS OF
THE VICTIM COULD BE USED AS
SUBSTANTIVE EVIDENCE.

C. COUNSEL'S INTENTIONAL
ELICITATION OF GROSSLY
PREJUDICIAL TESTIMONY
REGARDING PRIOR DOMESTIC
VIOLENCE OFFENSES.

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D. FAILURE OF PCR COURT TO
CONDUCT AN EVIDENTIARY
HEARING.

II.

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 (1984), and adopted by our Supreme Court in State

v. Fritz, 105 N.J. 42 (1987). In order to prevail on an ineffective assistance of

counsel claim, defendant must meet a two-prong test by establishing: (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, 466 U.S. at 687, 694.

Our review of the PCR court's findings of fact is deferential. State v.

Pierre, 223 N.J. 560, 576 (2015). We "uphold the PCR court's findings that are

supported by sufficient credible evidence in the record." State v. Nash, 212 N.J.
518, 540 (2013). The PCR court's interpretation of the law and legal conclusions

are reviewed de novo. Id. at 540-41.

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A.

Defendant argues the PCR court erred in deciding he was barred from

claiming post-conviction relief on the ground that his attorney provided

ineffective assistance by not requesting a jury instruction to consider prior

inconsistent statements as substantive evidence. We do not agree this was an

error.

In his direct appeal, defendant argued the jury charge was not complete

because the court did not provide the jury with an instruction about the use of

prior inconsistent statements as substantive evidence. Davis, slip op. at 5. He

claimed there were inconsistencies in testimony by the State's witnesses. C.J.

claimed she was sexually assaulted but she did not mention this when she first

called 9-1-1. Id. at 7. He claimed "C.J. gave conflicting testimony about how

much she drank in the hours before the incident." Id. at 8. Defendant contended

Nurse Kline's testimony and report were not consistent about bruising on C.J.'s

neck and the length of time C.J. claimed she was strangled by defendant. Ibid.

In the direct appeal, we found there was "no error, much less plain error,

in the omission of the jury charge regarding the use [of] prior inconsistent

statements as substantive evidence." Id. at 9. We noted "[t]he trial court

instructed the jury on using prior inconsistent statements in evaluating

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credibility. . . ." Ibid. We found that what defendant claimed were

inconsistencies "were minor inconsistencies lacking 'any significant substantive

exculpatory value.'" Ibid. (quoting State v. Hammond, 338 N.J. Super. 330, 343

(App. Div. 2001)). We determined the omission "did not have a 'clear capacity

to bring about an unjust result,' because the instruction would have only assisted

the jury in fact-finding, rather than aid in explaining the law." Id. at 9 (quoting

State v. Singleton, 211 N.J. 157, 183 (2012)).

Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any

ground for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding brought pursuant to this rule or

prior to the adoption thereof, or in any appeal taken from such proceedings."

"Preclusion of consideration of an argument presented in post-conviction relief

proceedings should be effected only if the issue raised is identical or

substantially equivalent to that adjudicated previously on direct appeal." State

v. Marshall, 148 N.J. 89, 150 (1997) (quoting State v. Bontempo, 170 N.J. Super.
220, 234 (Law Div. 1979)).

Defendant argues the issue in the PCR appeal is different because the PCR

petition concerned his counsel's performance at trial while the direct appeal

concerned whether the trial court erred. Defendant claims he was prejudiced by

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his trial counsel's failure to ask for this instruction because the plain error

standard rather than the reversible error standard was applied in evaluating the

direct appeal. Defendant does not cite any new examples of inconsistency from

those raised in the direct appeal.

Under Hammond, we considered the jury instruction regarding prior

inconsistent statements of witnesses used as substantive evidence. 338 N.J.

Super. at 339. We rejected its application there because the out-of-court

statements "lack[ed] any significant substantive exculpatory value that is

pertinent to the jury instructions whose omission defendant challenges." Id. at

343. In that case, the witnesses disavowed any knowledge of the incident in

their out-of-court statements. However, at trial, they testified about the details

of the incident. The court found this inconsistency "went solely to the issue of

credibility," and that "they had no substantive exculpatory value of their own

that is relevant to the jury instruction on prior inconsistent statements of

witnesses." Ibid. In Hammond, the issue was about credibility, and the jury had

been fully instructed on that issue. We found the jury could determine the

credibility of the witnesses "with no less capacity than if it had been instructed

that it might consider as substantive evidence the witnesses' original denials of

any knowledge of the crime." Ibid.

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Here, the inconsistencies also implicated the witnesses' credibility. The

trial court fully instructed the jury about credibility, including its use of prior

inconsistent statements in evaluating a witness's credibility. The fact that C.J.

may have had more to drink than first reported or did not immediately mention

the sexual assault in the 9-1-1 call, or that the nurse's report did not mention

bruising on the neck, were all facts that were before the jury. Our prior opinion

found these inconsistencies to be minor. Davis, slip op. at 9. We also found

they did not have significant exculpatory value. Ibid. Therefore, the same

inconsistencies were evaluated, and we found the same omitted instruction did

not bring about an unjust result. The issue here is substantially the same as in

the direct appeal. The PCR court did not err in barring it under Rule 3:22-5.

We are confident in the same outcome even if Rule 3:22-5 did not apply.

Given the minor nature of the inconsistencies, which lacked exculpatory value,

counsel's performance by not requesting this instruction was not so deficient as

to implicate the first prong of Strickland, nor did defendant demonstrate he was

prejudiced because the jury was fully instructed on the use of prior inconsistent

statements in assessing witness credibility.

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B.

Defendant argues the PCR court erred by denying his post-conviction

petition because trial counsel elicited prejudicial testimony about prior domestic

violence incidents by defendant against C.J. We agree with the PCR court in

rejecting this claim.

In the trial, defense counsel asked Officer Robert Schwartz of the Camden

County Police Department, whether he had done a check of the "RT-TOIC"1

regarding defendant. The officer responded he was advised defendant "was a

ten-time repeat offender, which mean[t] that he had nine prior domestic violence

offenses." Shortly after this answer, the trial court asked counsel if he wanted a

limiting instruction, which he declined, explaining "it was [his] intention to

bring that out at some point . . . [and] that's not an oversight on our part." The

limiting instruction issue was raised again by the trial court when defendant

advised he was seeking to put C.J.'s "domestic history" before the jury.

Referencing prior applications by C.J. for restraints against defendant, counsel

argued:

Because not only were they denied in some instances,
in many instances she withdrew the applications before
she ever had her FRO hearing. Sometimes she didn't

1
The acronym refers to the "Real Time Tactical Operations and Information
Center."
A-1460-19
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show up at the FRO hearings. There is a pattern of
using restraining orders as a means to get my client to
comply to her expectations of behavior and conduct.

The trial court determined that if this type of testimony were elicited,

"[t]he [S]tate can certainly then bring in testimony to rebut an accusation or an

inference of filing false accusations to show the basis and the reasons why those

temporary restraining orders were not pursued." It was shortly after this ruling

that defense counsel advised defendant no longer wanted "to pursue that line of

questioning with the alleged victim," and requested a limiting instruction. The

trial court read this instruction to the jury after the State rested:

I note that during the trial you heard testimony from
Officer Schwartz, whereby he stated that the defendant
was a ten[-]time repeat offender, which means he had
nine prior domestic violence offenses. I instruct . . .
each of you that you are to totally disregard that portion
of Officer Schwartz['s] testimony. That means you
cannot consider that portion of his testimony for any
reason and it cannot be considered for any purpose
during your deliberations. There is no evidence that
these offenses were ever proven or even occurred.

The trial court read the same instruction to the jury as part of the jury charge.

Under the first part of Strickland, "there is 'a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance[,]' [and t]o rebut that strong presumption, a defendant must establish

that trial counsel's actions did not equate to 'sound trial strategy.'" State v.

A-1460-19
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Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 689). "If

counsel thoroughly investigates law and facts, considering all possible options,

his or her trial strategy is 'virtually unchalleng[e]able.'" State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, 466 U.S. at 690–91).

Defendant's strategy was to show C.J. was not truthful because she had a

pattern of accusing defendant of domestic violence and then not following up

on those allegations. He intended to pursue this strategy until the trial court

ruled he would be opening the door to evidence about the other domestic

complaints. We cannot say that a strategy to weaken C.J.'s credibility was per

se unsound. This case centered primarily on C.J.'s credibility. The fact a trial

strategy fails to obtain the optimal outcome for a defendant is insufficient to

show counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002)

(citing State v. Bey, 161 N.J. 233, 251 (1999)).

Defendant also failed to show he was prejudiced by the statement. The

comment by Officer Schwartz was isolated. The trial court's curative instruction

told the jury to disregard the officer's testimony. We must assume the jury

followed these instructions and disregarded the evidence. See State v. Loftin,

146 N.J. 295, 390 (1996) (noting "[t]hat the jury will follow the instructions

given is presumed"). Moreover, the instruction went beyond advising the jury

A-1460-19
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to disregard the testimony. It advised there was no evidence the facts were

proven or existed. We, therefore, agree with the PCR court's evaluation that

there was nothing which showed the result of the case would be different if this

information were not before the jury.

We are satisfied from our review of the record that defendant failed to

make a prima facie showing of ineffectiveness of trial counsel within the

Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an

evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-

63 (1992) (providing "trial courts ordinarily should grant evidentiary hearings

to resolve ineffective-assistance-of-counsel claims if a defendant has presented

a prima facie claim in support of post-conviction relief").

Affirmed.

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