On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
O'Brien and Stern. The opinion of the court was delivered by O'Brien, J.A.D. Stern, J.A.D., concurring.
In our decision of December 30, 1987 on defendant's appeal from his conviction of kidnapping (N.J.S.A. 2C:13-1b(1)), aggravated assault (N.J.S.A. 2C:12-1b(1)), and aggravated sexual assault (N.J.S.A. 2C:14-2a(6)), we remanded the case to the trial judge for the limited purpose of conducting an evidentiary hearing on defendant's claim of ineffective assistance of counsel. We retained jurisdiction and we now affirm the assault convictions and reverse and remand for a new trial on the kidnapping charge.
The facts are fully set forth in our earlier opinion as well as defendant's contentions as to his claim of ineffective assistance of counsel. Although defendant asserted five areas in which his attorney failed to investigate, we found no merit to four of them. However, with respect to the fifth, i.e., the existence of fact witnesses whose testimony might have altered the outcome of the trial, we remanded to the trial judge to hear the testimony of those witnesses to determine whether or not the proffered evidence would have been admissible at trial and if admitted would probably have affected the outcome of the trial.
Pursuant to our remand, the trial judge conducted an evidentiary hearing at which eight witnesses testified, including the attorney whose assistance was alleged to have been ineffective. The other witnesses were neighbors in the apartment building where defendant's parents resided and where defendant allegedly took M.B. on the night in question, kept her against her
will and assaulted her. Testimony was also received from the doorman of the building, a bartender at the restaurant-bar where defendant and M.B. met on the night in question, and a private investigator retained by defendant.
The trial judge made findings of fact and conclusions of law which were filed on February 24, 1988.*fn1 After citing Strickland v. Washington, 466 U.S. 668, 690-691, 104 S. Ct. 2052, 2065-2066, 80 L. Ed. 2d 674, 695-696 (1984), the trial judge concluded:
Armed with the discovery furnished by the State, however, and the statement of the victim concerning screams and other painful sounds, it appears that it was incumbent on trial counsel to make inquiry either personally or through an investigator as to whether or not anyone heard or did not hear sounds and/or screams on March 14, 1988 at or near midnight. Such inquiry it is alleged would have produced the witnesses Ann Vitucci, Angelo Vitucci, Ruth Hammer, Lynn Hoffstein and Robert O'Toole.
After reviewing the testimony of each of these witnesses which the judge concluded would probably have been admissible, the judge concluded:
Therefore, although counsel was deficient in not investigating the existence of the witnesses aforementioned, such error was not sufficiently serious to deprive defendant of a fair trial and the results of the trial based on the totality of the evidence was reliable.
We agree with the finding of the trial judge that counsel was deficient in his failure to investigate. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland v. Washington, 466 U.S. at 690, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. We recognize that the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Id. We note that on cross-examination John Barna, the investigator hired by defendant, testified that he told defendant he wanted to get into the apartment, but was told by defendant, "Don't bother anybody on that floor" because he "could not" bother his
father. However, Barna suggested to defendant's attorney that he contact the building's attorney, or Mr. Ross, the manager, and the attorney did neither.
As noted in our original opinion, the Strickland court announced a simple two-part test for evaluating claims of ineffectiveness of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
The Strickland standard has been adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
We are satisfied that the trial judge correctly concluded that defendant has shown that his counsel's performance was deficient. After making that finding, the trial judge properly turned to the question as to whether or not that deficient performance prejudiced the defense, i.e., did defendant show that counsel's errors were so serious as to deprive him of a fair trial, a trial whose result is reliable. The trial judge concluded that defendant had not made such a showing. We disagree.
Defendant was convicted of three offenses, kidnapping (N.J.S.A. 2C:13-1b(1)), aggravated sexual assault (N.J.S.A. 2C:14-2a(6)), and aggravated assault (N.J.S.A. 2C:12-1b(1)), which was merged for sentencing into his conviction for aggravated sexual assault. At oral argument, both the State and defendant's counsel agreed that the question whether defendant was prejudiced could be answered differently with respect to the kidnapping charge as opposed to the assault charges. As to the latter charges, the testimony of Lynn Hoffstein, who lived in the apartment across the hallway from the apartment in which the assault occurred, and Ruth Hammer, who lived in the adjacent apartment and whose bedroom was next to the bedroom of the
Deutsch apartment, was relevant. As to these witnesses, the trial judge found:
Ruth Hammer, in fact, had no specific recollection of March 14, 1984, but said she must have been home (and heard no sounds coming from the Deutsch apartment) since she was always home on Wednesday evenings.
Lynn Hoffstein lived in the apartment across the hallway from Deutsch's apartment. 'I was home that night' (March 14, 1988) [ sic ] heard nothing -- I might have had company that night -- I might have had the TV on.
Hammer and Hoffstein; again, negative testimony, was not that satisfying and certain to alter the physical evidence of injuries and photographs produced at the trial.
We agree with that conclusion. Furthermore, the testimony of the doorman, Robert O'Toole, with regard to the assault charges, was that M.B. was calm and he didn't observe any bruises or cuts on her face*fn2 nor did she make any complaint to him that she had been assaulted. On the other hand, as observed in our original opinion, O'Toole's testimony cut both ways since it refuted defendant's testimony that M.B. left the apartment at about 4:00 a.m.
We agree with the trial judge that the failure of counsel's investigation to reveal these witnesses, although deficient, did not prejudice the defense as to the assault charges. Initially we observe that, according to Barna, defendant did not wish him to talk to the neighbors because he didn't want to bother his father. Furthermore, defendant acknowledged that M.B. had been with him in his parents' apartment on the night in question. Evidence that during the night or early morning hours M.B. suffered substantial injuries was overwhelming. The evidence of those injuries, corroborated by the police officers, the prosecutor's investigator, the photographs and the testimony of ...