October 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID RIBBLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-05-0728.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2007
Before Judges Wefing and R. B. Coleman.
Defendant David Ribble appeals from an order issued by the Superior Court of New Jersey, Law Division, Ocean County, on May 3, 2006, denying his petition for post-conviction relief (PCR).
We have considered defendant's claims on appeal in light of applicable law, and we affirm.
On December 18 and 19, 2001, defendant was tried before James N. Citta, J.S.C., and a jury. The jury found him guilty of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The court sentenced defendant to twenty years in prison for the aggravated sexual assault, with ten years of parole ineligibility. For endangering the welfare of a child, the court sentenced the defendant to ten years in prison, with five years of parole ineligibility. These sentences were to be served concurrently.
The issues raised by defendant's appeal were addressed in an unpublished per curiam opinion, State v. Ribble, No. A-5119-01T4, (App. Div. June 5, 2003), and on September 24, 2003, the Supreme Court denied defendant's petition for certification, State v. Ribble, 177 N.J. 577 (2003).
Thereafter, defendant filed, pro se, a petition seeking PCR, alleging that he had received ineffective assistance of counsel, and claiming that he should be granted a new trial based on newly discovered evidence. As this was defendant's first petition for PCR, he was assigned counsel, and after hearing oral argument, the trial court denied the petition for PCR. This appeal followed.
On appeal, defendant raises the following arguments.
POINT I: THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL SHOULD NOT HAVE REPRESENTED THIS DEFENDANT DUE TO A CONFLICT OF INTEREST.
B. TRIAL COUNSEL FAILED TO OBJECT TO THE COURT'S ACTIONS WITH REGARD TO THE CHILD WITNESS, C.N.
C. TRIAL COUNSEL FAILED TO OBJECT TO QUESTIONING WHICH IMPROPERLY BOLSTERED THE CREDIBILITY OF THE CHILD WITNESS.
D. TRIAL COUNSEL FAILED TO CONDUCT A PROPER CROSS-EXAMINATION OF HIS CLIENT [E.N.] ON ISSUES OF HER CREDIBILITY TO THE DETRIMENT OF HIS OTHER CLIENT, THE DEFENDANT.
E. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO ASK ANY QUESTIONS OF THE ALLEGED VICTIM.
F. TRIAL COUNSEL FAILED TO OBJECT TO PREJUDICIAL COMMENTS BY THE PROSECUTION IN CLOSING ARGUMENT.
G. TRIAL COUNSEL FAILED TO ARGUE AND PRESENT ANY CASE LAW TO THE TRIAL OR APPELLATE COURTS REGARDING COUNSEL'S RIGHT TO QUESTION THE VOLUNTARINESS OF THE DEFENDANT'S CONFESSION AT TRIAL.
H. TRIAL COUNSEL FAILED TO OBJECT TO THE TESTIMONY AND LEGAL OPINION OF A WITNESS AS TO THE ADMISSIBILITY OF THE CHILD'S STATEMENT UNDER STATE V. MICHAELS.
I. TRIAL COUNSEL FAILED TO SUBMIT VOIR DIRE QUESTIONS TO ESTABLISH IF ANY JURORS WERE PREJUDICED AGAINST ASIAN-AMERICANS. MOREOVER, COUNSEL WAS INCOMPETENT IN SELECTING AN ALL-MALE JURY.
J. TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE.
K. TRIAL COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT.
L. TRIAL COUNSEL WAS INEFFECTIVE ON ADDITIONAL GROUNDS.
POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: THE LOWER COURT ORDER MUST BE REVERSED ON THE BASIS OF NEWLY DISCOVERED EVIDENCE.
POINT V: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
To make the requisite prima facie showing of ineffective assistance of counsel, a defendant must show a "reasonable likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and adopted by this Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (internal quotation marks omitted) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). To establish that counsel's representation was deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Under the second prong, defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698 (internal quotation marks omitted). Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63. To be prejudicial, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
The great majority of "errors" asserted by or on behalf of petitioner can be attributed to viable trial strategies. As stated in State v. Loftin, "the defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." 191 N.J. 172, 198 (2007) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). For example, defense counsel chose not to cross-examine the seven-year old victim of an alleged sexual assault. That choice is an acceptable strategic decision to avoid the appearance of browbeating a young child under cross-examination, especially where the desired information could be garnered from other witnesses.
Defendant also claims that the trial attorney did not conduct a proper cross-examination of the victim's mother. Again, the degree and detail of cross-examination are largely left to the discretion of defense counsel. In this case, defense counsel did ask questions of the mother. He attempted to expose her bias by questioning past verbal disputes between herself and defendant. By no means was counsel's cross- examination of the mother so deficient that it adversely affected the outcome and deprived defendant of a fair trial.
Defendant's claims that counsel failed to object to the court's actions with regard to the child witness and that counsel failed to object to questioning which improperly bolstered the credibility of the child witness, are likewise rejected because they do not represent unreasonable decisions or ineffective performance by a trial attorney.
Defendant also asserts that counsel failed to argue and present any case law to the court to question the voluntariness of the defendant's confession, that counsel failed to properly investigate the case and that counsel failed to properly communicate with his client. Those assertions are so lacking in merit that they do not warrant discussion in a written opinion.
R. 2:11-3(e)(2). The same is true of defendant's claim that trial counsel had a conflict of interest because defendant's girlfriend, the victim's mother, participated in the retention of counsel.
All other claims of ineffective assistance of counsel have been or could have been previously litigated; thus, they are now procedurally barred. Ineffective assistance of counsel claims are ordinarily exempt from the procedural bar of R. 3:22-4. See, e.g., State v. Harris, 181 N.J. 391, 518 (2004), certif. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). However, pursuant to R. 3:22-5, prior adjudication of an issue, particularly on direct appeal, will ordinarily prohibit PCR. See, e.g., Harris, 181 N.J. 391 at 518; State v. McQuaid, 147 N.J. 464, 484 (1997); State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993).
On direct appeal, this court ruled that the prosecutor's summation did not present any issues of reversible error, and although we do not find the court's interaction with the child witness was improper, we note that if it was improper, it should have been raised on direct appeal. Similarly, the alleged deficiencies regarding the court's hearing of testimony under State v. Michaels,*fn1 the direct examination of the child witness, the voluntariness of the defendant's confession, and the voir dire of the jury could have been but were not raised in prior proceedings.
Because this court agrees with the PCR court's findings that defendant's trial counsel was not ineffective, in specific instances or cumulatively, we reject as well the claim that defendant's appellate counsel was ineffective for not having raised issues regarding trial counsel's deficient performance. Moreover, defendant has not shown that these issues could not reasonably have been raised before or that he has been subjected to any "fundamental injustice" that would call for a relaxation of the procedural bar. R. 3:22-4.
Defendant urges, in the alternative, that an evidentiary hearing should have convened to investigate the effectiveness of both trial and appellate counsel. The trial court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). However, the defendant must first demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 157 (1992), certif. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). As discussed above, defendant failed to satisfy the two-prong test of Strickland/Fritz. Since defendant did not demonstrate a reasonable likelihood of success, the PCR court properly denied his request for an evidentiary hearing.
Lastly, defendant contends that he is entitled to a new trial because of the discovery of new evidence. To be granted a new trial on this basis, the new evidence must be:
(1) material to the issue and not merely cumulative or impeaching or contradictory;
(2) discovered since the trial and not discoverable by reasonable diligence beforehand; and
(3) of the sort that would probably change the jury's verdict if a new trial were granted. All three tests must be met before the evidence can be said to justify a new trial. [State v. Feaster, 184 N.J. 235, 276-77 (2005) (quoting, State v. Carter, 85 N.J. 300, 314 (1981)).]
Under the second prong of this test, the new evidence must have been discovered after the completion of trial and must not have been discoverable earlier through the exercise of due diligence. Carter, supra, 85 N.J. at 314. In defendant's self-drafted September 13, 2004 petition to the Appellant Division, he avers that he disclosed this evidence to his attorney well in advance of trial. It is, therefore, obvious that the evidence is not the type of new evidence that would warrant a new trial.