On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment Number 95-05-152.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 20, 2002
On leave granted, the State appeals from an order entered on June 10, 2002, granting the petition of defendant, Allan Bray, for post-conviction relief, vacating his conviction on child sexual abuse charges and ordering a new trial. We reverse the June 10, 2002 order, and remand the matter to the Law Division for an evidential hearing to determine whether defendant has established the second prong of the ineffective- assistance-of-counsel test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), adopted in New Jersey by State v. Fritz, 105 N.J. 42, 58 (1987).
To fully understand the somewhat unusual context within which this appeal is presented, the following procedural history is relevant. Defendant was charged in Warren County Indictment Number 95-05-0152 with second-degree sexual assault upon K.P., a child less than age thirteen, by committing acts of sexual contact with K.P. on diverse dates between December 26, 1990 and December 31, 1992, contrary to N.J.S.A. 2C:14-2b (count one); third-degree endangering the welfare of K.P. between December 26, 1990 and December 31, 1992, contrary to N.J.S.A. 2C:24-4a (count two); second-degree sexual assault upon K.P., a child less than age thirteen, by committing acts of sexual contact with K.P. on diverse dates between January 1, 1993 and February 28, 1993, contrary to N.J.S.A. 2C:14-2b (count three); second- degree endangering the welfare of K.P. between January 1, 1993 and February 28, 1993, contrary to N.J.S.A. 2C:24-4a (count four); second-degree sexual assault by committing acts of sexual contact with K.P. on July 17, 1993, contrary to N.J.S.A. 2C:14- 2b (count five); second-degree endangering the welfare of K.P. on July 17, 1993, contrary to N.J.S.A. 2C:24-4a (count six); fourth-degree possession of photographs depicting a child under age 16 engaging in a prohibited sexual act, contrary to N.J.S.A. 2C:24-4b(5)(b) (count seven); and second-degree prohibited possession of weapons by certain persons, contrary to N.J.S.A. 2C:39-7b (count eight).
K.P. was born on September 21, 1980, and was between ages ten and twelve when the alleged acts of sexual abuse were perpetrated against her by defendant. Defendant's first trial on these charges in 1996 resulted in a mistrial when the jury was unable to reach a unanimous verdict on any count. Prior to commencement of the first trial, defense counsel had placed the name of Britton "Skip" Detrick on defendant's witness list, based upon the following information revealed by the discovery. During a recorded statement given by K.P. to Detective Stephen B. Speirs of the Warren County Prosecutor's Office on August 26, 1994, concerning K.P.'s allegations against defendant, Speirs asked K.P., then nearly age fourteen, "has anyone else touched you or done anything like that to you?" K.P. responded that when she was age three or four Detrick, whom she described as a family friend, had pulled out his penis on two or more occasions and made her play with it while they were riding in Detrick's truck.
On defendant's behalf, an investigator interviewed Detrick and obtained a written statement from him dated October 6, 1994. In his statement, Detrick related the following incident, in pertinent part, purportedly occurring when K.P. was age four:
I was in the living room with several other people when [K.P.] jumped on to my shoulders and sat on the base of my neck. I was sitting on the sofa and [K.P.] climbed up behind me and mounted me like a horse. I thought it was innocent horseplay until she began to hump the back of my neck. When she did so I grabbed her off of me and scolded her. I think that I embarrassed her and she became angry. [K.P.] then told [K.P.'s babysitter] that I told her to take her pants off. That was a complete and total lie. The incident occurred in the presence of other people and therefore I had no problem explaining the truth to those present. . . . I saw [K.P.'s mother] and [defendant] about a week later and [K.P.'s mother] confronted me regarding the incident. I explained to [K.P.'s mother] in front of [K.P.] exactly what happened and she was satisfied that [K.P.] had made up the story and that there was no truth to it. . . . There were never any formal charges against me or any complaint filed. [K.P.'s mother] scolded [K.P.] for making the false allegations. . . .
Defense counsel had issued a subpoena to Detrick, intending to call Detrick to testify at defendant's first trial concerning this incident. Defense counsel had sought to use this prior, allegedly false, allegation of sexual misconduct to bring into question K.P.'s credibility concerning her allegations against defendant.
K.P.'s testimony during defendant's first trial was briefly interrupted to allow the trial judge to consider the State's application to preclude any testimony or evidence concerning the Detrick incident. Defense counsel requested a hearing outside the presence of the jury consisting of the proffered testimony by Detrick, as well as testimony from K.P., to determine whether K.P.'s prior allegations of sexual abuse against Detrick had been fabricated and, if so, to use them during his cross- examination of K.P. In granting the State's application to preclude the use of any evidence based upon Detrick's statement, the trial judge ruled it was not permissible "to attack the credibility of a prosecution witness by introducing [that] witnesses's past actions which would indicate that that witness had previously falsely accused certain people of committing crimes."
After the jury was unable to reach a verdict during the first trial, the charges against defendant in counts one through seven of the indictment were re-tried to a jury between July 29, 1997 and August 5, 1997. At the commencement of defendant's second trial, defense counsel again raised the issue concerning Detrick's testimony. The trial judge preserved that issue for appeal, and stated that the evidential rulings he had made concerning Detrick's proffered testimony at the first trial "are still going to stand in this trial." Defendant was convicted of the sexual assault charges contained in counts one and five; the endangering charges contained in counts two and six; and the possession of prohibited photograph charge in count seven. The charges in counts three and four were dismissed, and defendant pled guilty to the weapon charge in count eight.
Defendant was sentenced on the convictions on counts one, five and six to three concurrent eight-year terms of imprisonment, to be served at the Adult Diagnostic and Treatment Center (ADTC). The court also imposed concurrent five-year terms on the convictions on the charges contained in counts two and eight, and a concurrent one-year term for the fourth-degree conviction on count seven, also to be served at the ADTC. Applicable mandatory fines and penalties were assessed, and defendant was ordered to comply with the registration requirements contained in Megan's Law.
On his direct appeal, in an unpublished opinion, we affirmed defendant's convictions and the sentence imposed. State v. Bray, A-3271-97T4 (Jan 4, 2000). The Supreme Court denied defendant's petition for certification. State v. Bray, 164 N.J. 559 (2000). On his direct appeal, defendant had presented twelve separate arguments for consideration. However, appellate counsel did not raise, as error, the ruling of the trial judge precluding the Detrick evidence.
On October 6, 2000, defendant filed a pro se petition for post-conviction relief contending: (1) his indictment was the product of prosecutorial misconduct; (2) defendant was deprived of the effective assistance of trial counsel; (3) defendant was deprived of the effective assistance of appellate counsel by the failure to raise, as error on appeal, the trial court's decision to prohibit testimony of prior false accusations of sexual assault that had been made by the victim; (4) the State committed acts constituting prosecutorial misconduct; ...