STATE OF NEW JERSEY v. ERIC EPPS

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." 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-5692-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ERIC EPPS, a/k/a CHARLES
WATKINS, DWIGHT MITCHELL
and COREY GRUBBS,

          Defendant-Appellant.


                   Submitted January 19, 2021 – Decided                           March 10, 2021

                   Before Judges Sabatino and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 14-02-0397.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Lucille M.
                   Rosano, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the briefs).
              Appellant filed a pro se supplemental brief.

PER CURIAM

        Defendant Eric Epps appeals from the June 24, 2019 order denying his

petition for post-conviction relief (PCR), contending trial counsel was

ineffective regarding several evidentiary issues and in failing to investigate the

case and discuss the discovery with him. We affirm.

        We derive the facts from our prior decision in the direct appeal affirming

defendant's convictions and sentence. State v. Epps, No. A-4094-14 (App. Div.

June 8, 2017) (slip op. at 1-2).

        As three children – a twelve-year-old girl, Z.P.1 and her brothers, aged

eight and ten – were walking home from school, they noticed a parked green

Jeep. Through the open front passenger side window, the children observed a

man masturbating in the driver's seat. He was not wearing any pants. The girl

told her brother to write down the Jeep's license plate number and they reported

the incident to the authorities.

        The license plate belonged to a vehicle owned by defendant. Several days

later, Z.P. identified defendant in a photo array. She and her older brother

identified defendant at trial as the man in the Jeep.


1
    We use initials to protect the minor's privacy. R. 1:38-3(c)(12).
                                                                            A-5692-18
                                         2
      Defendant was convicted of second-degree sexual assault,  N.J.S.A.

2C:14-2(b); third-degree endangering the welfare of a child,  N.J.S.A. 2C:24-

4(a) and fourth-degree lewdness,  N.J.S.A. 2C:14-4(b)(1). He was acquitted on

two counts of endangering the welfare of a child. The court sentenced defendant

as a persistent offender under  N.J.S.A. 2C:44-3 to an aggregate term of

seventeen years, subject to an eighty-five percent term of parole ineligibility and

ordered him to comply with parole supervision for life and the requirements of

Megan's Law.

      Defendant filed a pro se petition for PCR asserting numerous instances of

trial court error and ineffective assistance of counsel. In a subsequent brief,

substituted defense counsel argued trial counsel (1) lacked diligence and failed

to zealously represent defendant; (2) failed to properly investigate the matter

and produce a witness for trial; (3) failed to properly advise defendant regarding

certain aspects of sentencing; 2 and (4) failed to object to the admission of

prejudicial evidence, specifically certain testimony of Z.P.

      The PCR court denied the petition in a comprehensive, well-reasoned

written decision and order. Pertinent to the issues on appeal, the PCR court did



2
   Although the PCR court granted defendant an evidentiary hearing solely on
this assertion, defendant later withdrew the claim.
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not find any merit in defendant's arguments regarding deficiencies in trial

counsel's preparation or investigation of the case or in failing to produce a

particular witness.

      The PCR court also addressed the assertion that trial counsel was

ineffective for failing to object to the testimony of Z.P., in which she stated she

had seen defendant masturbating while sitting in a different vehicle on prior

occasions. In rejecting the claim, the PCR court noted defendant had raised the

issue in his direct appeal. In our decision, we found because it was defendant's

counsel who elicited details of Z.P.'s observations of defendant on a prior

occasion, he could not now argue counsel should have objected. The testimony

was elicited by defense counsel. Therefore, any claim that counsel should have

objected was barred under the doctrine of invited error.

      Because defendant failed to present a prima facie case of ineffective

assistance of counsel, the PCR court found he was not entitled to an evidentiary

hearing on these issues.

      In a counseled brief, defendant presents the following issues for our

consideration:

            POINT I
            THE DEFENDANT WAS DENIED EFFECTIVE
            ASSISTANCE  OF   TRIAL   COUNSEL  AS
            GUARANTEED BY THE SIXTH AMENDMENT TO

                                                                             A-5692-18
                                        4
      THE UNITED STATES CONSTITUTION AND ART.
      1, PAR 10 OF THE NEW JERSEY CONSTITUTION

      A. Trial Counsel Was Ineffective When She Introduced
      Highly Prejudicial Other-Crime Evidence Against Her
      Client and Then Successfully Argued Against Any
      Limiting Instruction and Restriction on the Use of That
      Evidence.

      B. The Defendant was Denied the Right to a Complete
      Defense by Trial Counsel's Failure To Investigate the
      Case; To Review Discovery with her Client, and To
      Prepare for Trial.

      C. Trial Counsel Failed to Challenge the
      Trustworthiness of the Children's Statements Alleging
      Sex Crimes

      POINT II
      THE DEFENDANT IS ENTITLED                     TO   AN
      EVIDENTIARY HEARING

      POINT III
      THE DEFENDANT IS ENTITLED TO DE NOVO
      REVIEW, AND NO DEFERENCE SHOULD BE
      GIVEN TO THE ERRONEOUS CONCLUSION
      BELOW

In a pro se supplemental brief defendant asserts:

      POINT I
      EPPS WAS DENIED DUE PROCESS AND DID NOT
      GET A FAIR TRIAL. N.J.R.E. 803(c) (27); N.J.R.E.
      104; N.J.R.E.  403 AND N.J.R.E. 404(b); N.J. Ct.R.
      2:10-2




                                                                A-5692-18
                                 5
A. Epps Did Not Get a Fair Trial Because There Were
No Pre-trial Hearings Conducted on the Admissibility
of Prior-Bad-Act Evidence

B. There Was No N.J.R.E. 403 Balancing

POINT II
THE INDICTMENT SHOULD BE DISMISSED
BECAUSE THE STATE FAILED TO CORRECT
FALSE AND INCONSISTENT TESTIMONY AND
FAILED TO ESTABLISH THE REQUIRED
ELEMENTS OF COUNT I

A. The Prosecution Omitted Evidence Presented By
Their Witness

B. The State Failed To Prove the Necessary Elements
of Count I, Sexual Assault 2C:14-2(b)

POINT III
THE STATE FAILED TO OVERCOME ITS BURDEN
OF ESTABLISHING THAT THE PROBATIVE
VALUE OF THE OTHER-CRIMES EVIDENCE WAS
NOT OUTWEIGHED BY ITS APPARENT
PREJUDICE

POINT IV
THE STATE ULTIMATELY USED THE PRIOR-
BAD-ACT EVIDENCE TO BIAS THE NEW JERSEY
SUPREME COURTS' OPINION

POINT V
EPPS IS ENTITLED TO AN EVIDENTIARY
HEARING.    APPELLATE   COUNSEL    WAS
INEFFECTIVE FOR FAILING TO RAISE STATE
AND FEDERAL CONSTITUTIONAL VIOLATIONS
DISCLOSED IN THE RECORD


                                                       A-5692-18
                         6
      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington,  466 U.S. 668, 687 (1984) and adopted by the New Jersey

Supreme Court in State v. Fritz,  105 N.J. 42, 58 (1987). To prevail on a claim

of ineffective assistance of counsel, defendant must meet the two-pronged test

establishing both that: (1) 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.

      We affirm substantially for the reasons given in the PCR court's cogent

decision. We add only the following brief comments.

      Before the PCR court and on appeal, defendant again focuses on Z.P.'s

testimony. He now contends his counsel was ineffective in introducing other-

crimes evidence of propensity through cross-examination of the girl and he was

prejudiced by the testimony.




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                                        7
      The State called Z.P. as a witness. She stated she was sure defendant was

the man in the green Jeep because she was walking very close to the vehicle and

she could clearly see his face through the open window.

      On cross-examination, Z.P. confirmed she told the detectives in her

statement several days after the incident that she had seen defendant several

times during the prior year. At those times, defendant was driving a red Jeep

and she saw him on her street and in front of her house. Defendant was not

wearing pants and was masturbating each time Z.P. saw him.

      At the close of the case, the State requested the court to instruct the jury

regarding their use of the N.J.R.E. 404(b) evidence. Defense counsel objected

to the instruction. There was some confusion among counsel whether Z.P.

discussed the prior times she had seen defendant masturbating during her direct

examination or whether defense counsel elicited it on cross-examination. The

prosecutor stated the instruction was not needed if the testimony did not

originate during direct examination and if defense counsel objected.          The

attorneys asked for the opportunity to review the CourtSmart recording. There

was no further mention of the instruction in the record when the parties convened

on the next trial date and the instruction was not given to the jury.




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                                        8
      It is clear from our review of the transcript that defense counsel extracted

Z.P.'s prior observations during her cross-examination. The testimony was

designed to show that Z.P. claimed to have seen defendant in two different

vehicles and to question her identification of defendant on the day in question.

The lengthy cross-examination about the details of the prior encounters was

clearly designed to create doubt about Z.P.'s version of the events for which

defendant was charged.

      Indeed, when defendant testified, counsel stipulated he was in prison for

a period of the time Z.P. claimed to have seen him masturbating in a red Jeep

and he never owned a red vehicle.

      We are satisfied defense counsel was not deficient in her use of this

strategy to weaken Z.P.'s testimony. Moreover, if defense counsel had allowed

a Rule 404(b) instruction, the court would have in effect advised the jury that

defendant had performed the described acts. That would have controverted the

defense strategy of misidentification.

      During its deliberations, the jury requested a playback of Z.P.'s testimony.

And, it acquitted defendant of two of the endangering charges. Therefore,

defendant cannot satisfy the second Strickland prong, that there was any error

so serious as to lead to an unjust result.  466 U.S.  at 694.


                                                                            A-5692-18
                                         9
      We are satisfied the PCR court's denial of the petition was supported by

the credible evidence in the record. Defendant did not demonstrate trial counsel

was ineffective under the Strickland-Fritz test. Any remaining arguments not

addressed are not of sufficient merit to warrant a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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