June 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHELLE TIERNEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 98-10-1493-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2007
Before Judges Seltzer and C.L. Miniman.
Defendant appeals from the denial of her application for post-conviction relief (PCR) predicated on a multiplicity of claims. Because the certifications she submitted raised a prima facie issue of ineffective assistance of counsel, a PCR hearing was scheduled. After assignment of PCR counsel, the claims were limited to alleged error in the grand jury proceedings and ineffective assistance of trial counsel. On November 15, 2004, after hearing testimony from a number of witnesses over several days, including defendant herself, her trial counsel, and her expert witness, Marsha Jane Kleinman, Ph.D., the PCR judge concluded in a detailed opinion from the bench that there was no manifest injustice that would support relief from the grand jury proceedings, a type of claim not ordinarily cognizable on a PCR application.*fn1 He also concluded that trial counsel's performance did not fall below that required by the Constitutions of the United States and New Jersey. This appeal followed.
Despite her Battered-Woman-Syndrome defense, defendant was convicted on June 23, 2000, of first-degree knowing or purposeful murder and third-degree possession of a weapon for an unlawful purpose. On September 29, 2000, defendant was sentenced to thirty years without parole on count one, the minimum sentence for first-degree murder, and four years on count two, concurrent with count one. On direct appeal defendant contended that some of the jury instructions were erroneous and that her conviction for possession of a weapon for an unlawful purpose should have been merged with the murder conviction. We affirmed the first-degree murder conviction but vacated the sentence on the weapons offense and remanded for entry of an amended judgment of conviction.
We need not recite the facts of the underlying criminal offenses here as they have been thoroughly set forth in our opinion in State v. Tierney, 356 N.J. Super. 468, 472-77 (App. Div.), certif. denied, 176 N.J. 72 (2003). Suffice it to say that defendant stabbed the man with whom she lived, resulting in his death.
With respect to the grand jury proceedings, defendant asserted that Investigator Charles Gerndt testified falsely on seven occasions with respect to his investigation. (1) He testified that he saw no injuries on defendant, but in fact defendant had multiple bruises. (2) He misstated the time that the police were first called about the domestic violence. (3) He incorrectly testified that a witness, Paul Dixon, told him that there was a physical altercation between defendant's brother and the victim; that the victim did not fight back; that defendant came out of the house, hit the victim, and then went back in and came out with a knife. In fact, defendant contends that Dixon's statement does not support this testimony. (4) Investigator Gerndt also told the grand jury that the victim walked up to the driver's door to take the car keys out so that defendant and her brother could not go anywhere and they could discuss the dispute. Defendant denies that this occurred. (5) Investigator Gerndt told the jury that no deal had been made with Dixon, but in fact the assistant prosecutor had written to the prosecutor asking that Dixon's assistance be considered when Dixon was sentenced. (6) The investigator also told the grand jury that only one witness mentioned anything about the victim striking the defendant, whereas two eyewitnesses gave explicit statements about the victim assaulting the defendant. (7) Finally, Investigator Gerndt testified that he had not developed any evidence that there was an abusive relationship in which the victim constantly assaulted the defendant. The victim's brother, however, told Investigator Gerndt that the victim constantly assaulted the defendant, even to the point of drawing blood. Defendant contends that, had the investigator testified truthfully, there would have been no probable cause to believe a crime had been committed.
As to the ineffectiveness of trial counsel, defendant testified that she met with her trial attorney approximately ten times before she appeared in court, but they very rarely spoke about her criminal case, discussing personal matters instead. She admitted that her attorney presented a plea offer of ten to twenty years and that he felt that "[t]he judge will probably give you ten." Defendant testified that her attorney suggested that she turn it down "because all of the evidence was in [her] favor." Defendant testified that she was not prepared for her testimony, her attorney never discussed her testimony with her, and she was not told what to expect on cross-examination. Defendant claimed that her attorney ignored a number of notes and suggestions she gave him regarding impeachment possibilities for witnesses and discrepancies in discovery. She also claimed that her attorney did not move for a change in venue after being advised that the victim's brother was running for mayor in the town where the crime was committed, which was in the county where the trial was conducted.
Defendant also claimed that her attorney failed to address some jury issues properly. The court addressed an issue where defendant's friend saw jury members talking to the family, but the court determined that no wrongdoing took place. She told her attorney that a juror "nodded their head yes to the family before [the] verdict was read," but her attorney did not respond. During sentencing, she noticed that the same juror whom she observed talking to the family during to the trial was present for the sentencing. She claimed that her attorney only brought it up because she threatened to do so if he did not.
Even though she trusted her attorney during the trial, she was not satisfied with his performance.
Defendant's trial attorney testified that he has been practicing law since 1985 and every time he took on a case he had to prepare as if it were going to trial. He was working in private practice and had been assigned the case from the public defender's office. From a discussion with the public defender regarding defendant's case, the attorney concluded that it was "a Battered Woman Syndrome-type case." His first action was to get an expert, Marsha Kleinman. He had at least a dozen meetings with defendant for trial preparation. He admitted to speaking of personal things with defendant and informed defendant such conversation was to help her feel at ease. It was also an attempt for him to determine defendant's overall credibility and prepare her for cross-examination. He said that he had a good relationship with defendant.
The attorney testified that, given the facts of this case, a Battered-Woman-Syndrome defense was the best way to go and he had numerous discussions with Dr. Kleinman regarding the defense. Prior to his cross-examination of the State's expert, he had a conversation over lunch with Kleinman and used information obtained from that discussion during his cross-examination. He did not recall the information defendant accumulated regarding Battered-Woman Syndrome. His evaluation of Kleinman was adequate, not extraordinary. He believed that defendant knew from the beginning that she would be testifying, but asserted that no one is ever really ready to testify at the time of trial.
A last-minute plea bargain was offered for aggravated manslaughter with a presumptive term of twenty years. Defendant's attorney discussed it with defendant and presented the pros and cons. He was hopeful for a shot at "a second degree, but . . . would never force anybody to take anything." He would not suggest what he would do in the client's situation or guarantee anything. He did not recall defendant's demeanor in her response to the offer. The attorney testified that it never occurred to him to seek a change in venue and did not recall if defendant ever requested a change in venue.
The only thing that the attorney knew about Sandra Morrow, the State's expert, was her report. He did not speak with her or investigate her background, even though she had some licensing problems in 1985. He felt that, because the trial took place in 2000, the licensing problem was not current enough to be relevant and that the verdict was not a result of either expert's testimony.
By and large, the attorney did not recall the problems that defendant claimed occurred with the jury, but testified that if he did not believe that the jury performed its job appropriately, he would have said something. He did, however, remember moving for a new trial, in part, based on inappropriate contact with the jury. He thought "the jury did some social engineering," but did not raise it with the court, deeming it an irrelevant argument.
Dr. Kleinman testified at the PCR hearing that she had been hired by the trial attorney to evaluate defendant. She opined that defendant suffered from Battered-Woman Syndrome at the time of the crime. She felt that the trial attorney appeared extremely anxious during the trial and she did not believe that the jury understood the connection between defendant being battered and the crime for which she was convicted, mostly due to counsel's ineffective questioning of her during trial. She stated that his questioning never established the nexus between defendant's abuse and the crime. Kleinman opined that this was a critical piece of information missing from her testimony.
Kleinman believed that the State's expert was not an honest representative of the field of psychology and distorted and manipulated information during her testimony. She was present while defendant's attorney cross-examined the State's expert.
Kleinman had prepared questions for the attorney to use both before and during trial. She said that that the attorney had "a very difficult time asking a proper question" and Kleinman was so "troubled by his performance" that she called the Public Defender's office to express her concern that defendant was not properly represented.
The PCR judge placed a lengthy decision on the record in which he denied all post-conviction relief. He noted that defendant's PCR application was based primarily on two claims, the first being that her indictment was invalid and that there was a prosecutorial misconduct in the form of half-truths and lies presented to the grand jury, and secondly, that the defendant was afforded ineffective assistance of trial counsel in that trial counsel failed to properly investigate or adequately prepare her case and present her case at trial.
The judge concluded that there was no manifest injustice associated with the claims respecting the grand jury proceedings. He found "that the alleged lies that Investigator Gerndt presented to the grand jury amounted to no more than his subjective characterization of information and statements that he obtained during his investigation." He determined that those interpretations were not "deliberate falsehoods." Furthermore, he noted that "they did not result in any significant information being kept from the grand jury that would have clearly negated the guilt of the defendant or would have changed the grand jury's determination." Additionally, he observed that it was undisputed that defendant intentionally stabbed the victim, thus justifying the indictment, and that the statements of Investigator Gerndt related only to the issue of self-defense, which was a matter for trial. As a consequence, the judge concluded that there was no merit to this PCR claim.
The judge next addressed the issue of ineffective assistance of counsel. First, he discussed defendant's claim that her trial counsel should have moved for a change of venue. The judge found that this issue should have been raised on direct appeal and that there was no evidence, such as a certification from a juror, that would justify relief from the requirement that the issue be presented on direct appeal.
As to the balance of the claims respecting ineffective assistance of counsel, to wit, failure to consult with defendant effectively, inadequate direct examination of Kleinman, inadequate investigation and cross-examination of the State's expert, inadequate preparation of defendant for her testimony, counsel's failure to explore discrepancies in bite marks and the medical examiner's toxicology report, counsel's failure to adequately explore juror involvement with the victim's family, and counsel's improper advice to reject the plea offer, the judge noted that defendant was required to prove by a preponderance of the evidence "that but for counsel's ineffective assistance the defendant would have either been acquitted based on her self-defense claim or perhaps convicted of a lesser included offense of manslaughter."
With respect to the alleged failure of counsel to effectively consult with defendant, the judge stated the controlling legal principles and found that defendant had not shown how counsel's alleged refusal to consult with her had prevented the attorney from properly investigating the case and developing a reasonable defense. The judge noted that defendant had not specified what information her attorney refused to use. As a consequence, the judge determined that he could not conclude that counsel acted unreasonably and that the outcome of the case might reasonably have been different. Additionally, the judge determined that trial counsel, a certified criminal trial attorney, effectively and vigorously represented defendant at trial and that none of counsel's actions "were outside the wide range of professional competent assistance."
As to alleged inadequate direct examination of Kleinman by defendant's trial counsel, the judge reviewed the transcript of her trial testimony and listened to her PCR testimony. The judge found that Kleinman at trial did testify at length about the nature of the battered women's syndrome and she even was allowed to testify that in her opinion the defendant not only suffered from battered women's syndrome but that in the case at hand it was her professional opinion that the defendant feared for her life when she stabbed [the victim]. . . .
The only specific information . . . that she was not really allowed to render an opinion about was to go further in her testimony and to say that in her opinion the defendant acted in self-defense when she stabbed the victim . . . and that failure of Mrs. Kleinman to render that opinion was surely not the product of ineffective assistance of counsel. . . . The court had advised both attorneys that whether or not the defendant acted in self-defense was . . . a legal and a factual conclusion to be reached by the jury and not one that was the proper subject matter of expert opinion.
[I]t was the Court's ruling that prevented [defendant's counsel] from eliciting that testimony. And I'm satisfied . . . that there is really no additional testimony that she could have properly given that would have changed the outcome of these proceedings.
Furthermore, the judge took note of defendant's trial testimony in which she conceded "that she had not been threatened with any serious bodily injury previously, that she had not been the subject of an abusive or controlling relationship," and that such testimony undermined her Battered-Woman-Syndrome defense.
Regarding defendant's claim that defense counsel's investigation and cross-examination of the State's expert was inadequate, the judge was not satisfied that it was unreasonable for defense counsel not to discover that the State's expert had been administratively sanctioned for practicing psychology without a license fifteen years earlier. Additionally, the judge was not persuaded that this old impeaching evidence would have changed the outcome of the trial, because the State's expert's testimony was based on her interview of defendant, who denied suffering from factors that fit the Battered-Woman Syndrome.
Next addressing defendant's claim that her counsel inadequately prepared her for direct and cross-examination, the judge found the attorney's denial of this claim to be credible. He concluded that it was understood at the outset that defendant would claim self-defense and that she was likely to testify. Furthermore, when the judge and defense counsel warned defendant about the prospect of cross-examination at trial, "she had indicated that she had adequate time to consult with [her trial attorney] and that she had voluntarily chosen to testify." The judge found that her trial testimony "was a classic case of self-defense" and that "cross-examination did not in any way rattle her." He concluded that she was very well prepared and the outcome of the trial would not have been different.
With respect to trial counsel's alleged failure to explore discrepancies in the bite marks on the victim and in the medical examiner's toxicology report, the judge found that "these claims . . . have little significant materiality." Defendant admitted she bit the victim and whether she did it once or twice, he concluded, would not have changed the outcome of the trial. Additionally, it was undisputed that the victim had abused various substances and the specific drugs found in his body "clearly had no impact on the outcome of the case."
Regarding the alleged involvement of one or more jurors with the victim's family, defendant's claims were based on her own testimony that an unbiased jury would be impossible due to the victim's brother's mayoral campaign. However, the PCR judge pointed out that this issue should have been raised on direct appeal. In any event, he observed:
There's no certification from any juror indicating that there was a bias . . . or that any of them were tainted by pretrial publicity. . . . The jurors in this case were questioned extensively regarding [any potential bias and] . . . at the end of the jury selection process both counsel conceded to the Court that the jury was satisfactory.
Furthermore, the judge noted that when the issue was raised at trial, he investigated the allegation of juror contact with the victim's family and ascertained that the person thought to be a juror was a "victim-witness representative of the Prosecutor's Office," whose identification card was similar to those issued to jurors. The judge concluded that this claim was simply contrary to the evidence.
Finally, respecting counsel's alleged improper advice to reject the plea offer, the judge found that the defense attorney credibly testified that the prosecutor offered a plea to aggravated manslaughter with a sentence of twenty years, not the ten years to which defendant testified. The judge also found that "the defense position was that that was unreasonable and that she should go to trial." The judge also found that the performance of counsel was not deficient simply because he was optimistic about the defense he was presenting. The judge concluded that it was ultimately the defendant's decision to make and that she chose to go to trial.
The judge concluded:
And so after evaluating all the defendant's claims individually and in their entirety, I'm satisfied that the defendant has not demonstrated that she was denied effective assistance of counsel. The Court finds that the defendant was represented by an experienced and certified criminal trial attorney who has tried numerous homicide cases in the past. I'm satisfied based upon his testimony and the record before the Court that he spent months preparing the case for trial, that he met with the defendant numerous times, that he adequately prepared for trial, and that he presented the defenses that the defendant asserted and still asserts, that after consultation with her he concluded that there was a viable claim of self-defense based on the Battered Women's Syndrome. The Court had an opportunity to review his performance, the witnesses performance. He opened the case on that defense. He aggressively cross-examined the State's witnesses. Elected and presented defense witnesses in support of the claim and again he even retained one of the leading [pro]ponents, an expert in the Battered Women's Syndrome.
Defendant has not shown that any of these alleged actions by counsel were outside the realm of professionally competent assistance or that you should have done anything differently that would have changed the outcome of the case. To be sure it is always possible to look at a case in hindsight and to allege that defense counsel should have done something different, particularly when there has been an adverse verdict. But as has been said many times the defendant is not entitled to a perfect trial. A defendant is entitled to a fair trial. She was not denied effective assistance of counsel. It has not been shown that based upon the performance of counsel that she could have done or should have done anything different that would have changed the outcome of the case. And therefore the petition for post conviction relief is denied.
Defendant raises the following issues on appeal:
POINT I -- NO OTHER CONCLUSION CAN BE REACHED BUT THAT [THE] COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
a. Trial counsel provided ineffective assistance by misadvising Defendant with regard to a plea offer.
b. Trial counsel was ineffective in his direct examination of Defendant's expert witness as he failed to ask questions that would allow the expert to testify as to the relationship of Battered Women's Syndrome to the crime for which Defendant stood trial.
c. Trial counsel failed to render effective assistance prior to trial by failing to properly prepare for trial and by failing to meaningfully consult with Defendant.
i. Counsel's failure to discuss with Defendant her upcoming trial or trial strategy, and his failure to accept Defendant's input, constituted ineffective assistance.
ii. Trial counsel's failure to move for a change of venue constituted ineffective assistance.
iii. Trial counsel's failure to thoroughly investigate the background of the State's expert on Battered Woman's Syndrome constituted ineffective assistance.
iv. Trial counsel's failure to follow up on the discrepancies between the victim's toxicology report and the medical examiner's report and counsel's failure to obtain dental impressions of Paul Dixon and Michael Tierney constituted ineffective assistance.
v. Counsel was ineffective for failing to adequately address Defendant's concerns regarding possible contact between members of the jury and the victim's family.
POINT II -- THERE WAS ERROR IN THE PRESENTATION TO THE GRAND JURY RENDERING THE INDICTMENT SUSPECT.
POINT III -- NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
Our review of determinations on PCR petitions is limited where a judge has performed his fact-finding duties under Rule 1:7-4(a). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the PCR judge] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 472-73 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (citations omitted).
The trial court was required to determine whether there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United State or the Constitution or laws of the State of New Jersey." R. 3:22-2(a). Additionally,
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction . . ., is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Where there has been a prior adjudication on the merits of a ground for relief raised in the PCR petition, the prior adjudication is conclusive on the issue. R. 3:22-5. Fundamental injustice will exist if the defendant was not provided with "fair proceedings leading to a just outcome." State v. Mitchell, 126 N.J. 565, 587 (1992); R. 3:22-4(b). Relief in PCR proceedings is granted "only in exceptional circumstances involving a showing of fundamental injustice." State v. Cerbo, 78 N.J. 595, 605 (1979).
When a defendant asserts that his counsel was ineffective, a constitutional issue is raised. In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee for effective assistance of counsel to every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating such a claim. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. The New Jersey courts have adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
With respect to the first prong, "'[j]udicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
With respect to the second prong, defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; Fritz, supra, 105 N.J. at 52. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Arthur, 184 N.J. 307, 319 (2005) and State v. Harris, 181 N.J. 391, 432 (2004) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). We have held that "to establish prejudice, a defendant must show not only that the outcome of [the] trial would have been different absent the alleged deficient representation, but also that the deficient representation rendered the result of [the] proceeding fundamentally unfair or unreliable." State v. Holmes, 290 N.J. Super. 302, 311 (App. Div. 1996) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed. 2d 180 (1993)); State v. Long, 216 N.J. Super. 269, 279 (App. Div. 1987). Even if counsel makes strategy miscalculations or trial mistakes, PCR relief is only available "in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Norman, 151 N.J. 5, 38 (1997) (citations omitted). The mere fact that a trial strategy fails is not necessarily proof of ineffective assistance of counsel. State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). Rather, a defendant must demonstrate "how specific errors of counsel undermine the reliability" of the trial. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
With respect to defendant's claim of ineffective assistance of counsel, the PCR judge clearly discharged his fact-finding duties. We have reviewed the record and conclude that his findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, at 162. We will not make new credibility findings. Locurto, supra, at 472-73. We are thoroughly satisfied that his fact findings were not clearly mistaken and thus "the interests of justice" do not "demand intervention and correction." Johnson, supra, 42 N.J. at 162. Thus, we will not "appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. As a consequence, we are satisfied with the correctness in each and every respect of the PCR judge's conclusion that the performance of defendant's trial counsel was not ineffective in a constitutional sense and that defendant had not satisfied the first prong of Strickland. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Even if the PCR judge was incorrect in this respect, defendant clearly failed to satisfy the second prong of Strickland. Ibid. Here, it was undisputed that while defendant was sitting in a car and the victim was leaning back against the car, defendant took an eleven-inch knife and stabbed the victim in the back. The applicability of the defense of Battered-Woman Syndrome was hotly contested with experts on each side of the issue. But, it was the testimony of defendant herself that seriously undermined her chance of success with this defense and she has utterly failed to demonstrate how any action or inaction of her attorney could raise a reasonable probability that the result would have been different had counsel been effective. Our "'confidence in the outcome'" has not been undermined, Arthur, supra, 184 N.J. at 319, and we are satisfied that the proceeding was fundamentally fair and reliable. Holmes, supra, 290 N.J. Super. at 311. We affirm substantially for the reasons expressed by the PCR judge in his comprehensive oral decision respecting the claim of ineffective assistance of counsel. R. 2:11-3(e)(2). The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Locurto, supra, at 471.
As to the claim raised with respect to the grand jury proceedings, the PCR judge initially determined that defendant was barred from raising the claim. "[D]efenses and objections based on defects in the institution of the prosecution or in the indictment or accusation . . . must be raised by motion before trial." R. 3:10-2(c). "Failure to so present any such defense constitutes a waiver thereof . . . ." Ibid. Defendant has not shown good cause for relief from the waiver.
"An indictment should be disturbed only on the clearest and plainest ground." State v. Perry, 124 N.J. 128, 168 (1991) (citation omitted).
[D]ismissal of an indictment is appropriate only "'if it is established that the violation substantially influenced the grand jury's decision to indict,'" or if there is "'grave doubt'" that the determination ultimately reached was arrived at fairly and impartially. Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed. 2d 228, 238 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed. 2d 50, 61 (1986)). [State v. Hogan, 336 N.J. Super. 319, 339-40 (App. Div.), certif. denied, 167 N.J. 635 (2001).]
As the PCR judge correctly found, the issues raised with respect to the grand jury proceedings were not likely to have precluded an indictment where it was undisputed that defendant stabbed the victim in the back. In any event, grand jury errors are rendered harmless in the event of a guilty verdict in the subsequent trial resulting from the indictment. State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987); United States v. Mechanik, 475 U.S. 66, 69-72, 106 S.Ct. 938, 941-44, 89 L.Ed. 2d 50, 56-58 (1986).