March 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE SIMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 98-10-0960.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Lintner and Sabatino.
This is an appeal from the denial of a petition by defendant, Andre Simpson, for Post-Conviction Relief (PCR). Defendant was charged under Passaic County Indictment No. 98-10- 0960 with third-degree criminal restraint, N.J.S.A. 2C:13-2a (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and third-degree terroristic threat, N.J.S.A. 2C:12-3a and/or N.J.S.A. 2C:12-3b (Count Four). Following a five-day trial, a jury found defendant guilty of Counts One, Two, and Four. Defendant was also found guilty of third-degree assault, a lesser-included offense under Count Three. The jury also answered in the affirmative a special interrogatory, finding that defendant committed sexual assault by use of physical force and coercion.
On July 11, 2001, defendant was sentenced to an extended term of twenty years with eighty-five percent parole ineligibility to be served at the Avenel Adult Diagnostic and Treatment Center, pursuant to N.J.S.A. 2C:47-1. In an unreported opinion, we affirmed defendant's conviction. The Supreme Court denied defendant's petition for certification on December 12, 2002.*fn1 Defendant, thereafter, filed a pro se petition for PCR and, on April 21, 2006, counsel for defendant submitted an amended PCR petition in support of defendant's application. On appeal, defendant essentially asserts ineffectiveness of trial counsel, trial errors, and prosecutorial misconduct. We reject defendant's contentions and affirm.
The underlying facts reveal that on July 20, 1998, defendant and T.G. stopped at T.G.'s residence so that T.G. could pick up some papers that she needed. Defendant and T.G. had a prior romantic relationship, which T.G. ended in February 1996 upon learning that defendant was having homosexual relations with Effrain Gonzales. T.G. asked defendant to wait outside while she went into her apartment. Despite T.G.'s request for him to wait outside, defendant eventually entered the apartment and proceeded to block T.G. from leaving the bedroom.
He physically forced T.G. into the bedroom, slammed the door behind him, and pushed her onto the bed with his hands around her neck. After threatening that he would kill her if she did not undress, defendant grabbed T.G.'s cat by the throat and stated that he would not release the cat until T.G. got undressed. T.G. complied, took off her clothes, and laid flat on her stomach on the bed. Standing above her, defendant began choking T.G. and holding her head down in a pillow. He yelled, "if I can't have you, no one is going to have you."
Securing T.G. by using one of his legs, defendant attempted to put on a condom. T.G. however managed to get free and ran into the bathroom where she locked the door and stood in the bathtub. Defendant kicked in the door, pushed T.G. down into the tub, and forced his penis into her mouth and his fingers into her vagina. When defendant stopped to answer the telephone, T.G. ran downstairs to her cousin's apartment and banged on the door. Although T.G.'s cousin did not open the door, the police were called. Defendant eventually fled the scene before police arrived. An officer observed that the bathroom door was off one of its hinges and the shower curtain had been pulled down.
Defendant claimed in his amended PCR petition that: (1) his motion for mistrial should have been granted because the victim was seen sitting outside of the courtroom with jurors prior to reconvening the court session after the lunch break; (2) he was wrongfully excluded from the jury selection process, particularly by his counsel's failure to peremptorily challenge two jurors; (3) the trial judge improperly permitted the State to introduce into evidence a sexual device, known as a "bracelet" or "leather strap," found at the scene, as well as testimony from the prosecutor's investigator who ascertained from an adult bookstore clerk that the item was a sexual device; (4) the prosecutor engaged in misconduct in her summation; (5) his trial counsel was ineffective for not calling Gonzales and defendant's former fiancée, B.V., as witnesses, and was unprepared for trial by registering surprise when the State called Sharon Herman as a witness.
The judge held an evidentiary hearing limited to defendant's claims that he was shut out of the jury selection process and received ineffective assistance of counsel by his attorney's failure to call Gonzales as a witness. Following the hearing, the judge issued a written opinion. He credited trial counsel's testimony that, although he could not remember whether defendant asked him to excuse jurors, had defendant expressed a desire to take a certain individual off the jury, he would have complied with that request. The judge found that defendant was not shut out of the jury selection process as he claimed.
The judge also accepted defense counsel's testimony that, based upon counsel's investigation and interview of Gonzales, Gonzales would not withstand the rigors of cross-examination and that he would "in essence" corroborate the victim's story because his relationship with defendant "was not any new news to the victim." The judge found that defense counsel's strategy not to call Gonzales as a witness was sound and in keeping with his fifteen years of experience with the Public Defender's Office. Regarding defendant's remaining contentions, which were not the subject of the evidentiary hearing, the judge determined that either defendant failed to present a prima facie case or the issues were addressed on direct appeal, or were not sufficiently prejudicial to affect the results of the trial in view of the extensive evidence of defendant's guilt.
On appeal defendant raises the following points:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.
C. THE APPELLANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED BASED ON THE CLOSE PROXIMITY OF THE VICTIM WITH SOME OR ALL OF THE JURORS.
D. BY SHUTTING PETITIONER OUT OF THE JURY SELECTION PROCESS, ESPECIALLY REGARDING THE USE OF PEREMPTORY CHALLENGES, DEFENSE COUNSEL DENIED HIS CLIENT A FUNDAMENTAL RIGHT AND WAS CONSTITUTIONALLY INEFFECTIVE.
E. THE APPARENT SEXUAL DEVICE ALLEGEDLY CONFISCATED AT THE SCENE WAS INTRODUCED INTO EVIDENCE WITHOUT A CHAIN OF CUSTODY HAVING BEEN ESTABLISHED.
F. THE PROSECUTOR COMMITTED SERIOUS MISCONDUCT IN HER SUMMATION.
G. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ALLOWING EFFRAIN GONZALES TO TESTIFY AT TRIAL.
H. IT WAS PLAIN ERROR TO ADMIT THE TESTIMONY OF THE STATE'S INVESTIGATOR RELATING TO THE HEARSAY COMMENTS OF THE ADULT BOOKSTORE OWNER ON THE PURPOSE OF THE LEATHER STRAP AND BRACELET WHICH WERE ALLEGEDLY CONFISCATED AT THE CRIME SCENE.
I. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR HIS LACK OF TRIAL PREPARATION
We first address defendant's claims that he received ineffective assistance of counsel by being shut out of the jury selection process and counsel's failure to call Gonzales as a witness. At the PCR hearing, defendant testified that there were two particular jurors with whom he had reservations - a single mother of two daughters and a woman whose cousin was a police officer. He stated that he told counsel that he did not want those two women on the jury, but counsel responded by telling him, "Relax, I'm the lawyer, I got this." Defense counsel confirmed that there were peremptory challenges remaining after the jury was selected.
The two-part Strickland*fn2 standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Generally, "[w]e defer to a PCR judge's credibility findings because that judge has the ability to evaluate the witnesses firsthand." State v. Ways, 180 N.J. 171, 196 (2004) (citing State v. Carter, 69 N.J. 420, 427 (1976)). There is a "strong presumption that counsel's performance falls within the wide range of reasonable representation." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) (citing State v. Norman, 151 N.J. 5, 38 (1997)), certif. denied, 174 N.J. 544 (2002). The judge credited trial counsel's testimony over defendant's respecting participation in jury selection. It would, therefore, be improper for us to engage in any independent assessment of counsel's credibility. State v. Locurto, 157 N.J. 463, 472-75 (1999). We are satisfied, on this record, that the judge's findings that counsel's representation during the jury selection process was not deficient is supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Even if the judge had found that defense counsel was deficient in failing to exercise the peremptory challenges on the two women jurors, defendant did not establish that counsel's deficiency in some way prejudiced defendant. "To establish a violation of the Sixth Amendment guarantee of an impartial jury, a defendant must demonstrate that one of the jurors who actually sat on the jury was partial." State v. DiFrisco, 137 N.J. 434, 467 (1994). The record is bare of any evidence that either of the jurors in question were actually biased.
We are equally satisfied that the judge's findings regarding the appropriateness of defense counsel's strategic decision not to call Gonzales as a witness was supported by adequate credible evidence in the record. Defense counsel gave the following testimony concerning his decision not to call Gonzales as a witness:
[H]e . . . would not be a good witness. He cried continuously throughout the interview process. I had another attorney in my office cross-examining him, and basically, he could not even withstand cross-examination. And I knew I was going against a very experienced prosecutor who is probably the best cross-examiner in this county, and I didn't think that, in essence, he would withstand the rigors of cross-examination.
And, more importantly, he told me certain things that, in essence, corroborated the victim's story.
"[W]here 'reasonable professional judgments' support a defense counsel's decision[,] . . . the court should not find ineffective performance of counsel." State v. Chew, 179 N.J. 186, 205 (2004) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Granting the appropriate level of deference to the reasonable judgments of defense counsel, the judge correctly determined that the decision not to have Gonzales testify fell "within the wide range of reasonable professional assistance" in light of all the circumstances of the case. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The judge properly deferred to counsel's decision. See State v. Arthur, 184 N.J. 307, 320-21 (2005).
We move on to consider the judge's determination not to hold an evidentiary hearing on defendant's remaining contentions. We need not describe or explore the formidable procedural obstacles to any grant of relief. See e.g., R. 3:22-3; R. 3:22-4; R. 3:22-5; State v. Mitchell, 126 N.J. 565 (1992). PCR is precluded where the issue is substantially equivalent to that previously decided on direct appeal. State v. Afanador, 151 N.J. 41, 51 (1997); R. 3:22-5. Here, the judge properly determined that defendant's allegations that the prosecutor engaged in prosecutorial misconduct during her summation was raised and decided by us on direct appeal. The issues raised respecting the prosecutor's trial conduct are "'identical or substantially equivalent'" to the issue adjudicated on its merits in defendant's direct appeal. State v. McQuaid, 147 N.J. 464, 484 (App. Div. 1997) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438, 444 (1971)). We, therefore, forego further discussion of those issues as defendant was properly foreclosed from raising them on PCR. R. 3:22-5.
We next consider defendant's claim that the judge erred in not holding an evidentiary hearing on his assertion that the trial court should have granted his motion for a mistrial. Following the lunch break on the second day of trial, defense counsel informed the judge that the victim was "outside . . . sitting with the jurors that were waiting to come in." Defense counsel indicated that he "stayed there several minutes to see if they had any type of conversation," adding that he "didn't notice any," but believed that it was "highly improper." The judge then conducted a voir dire of the victim under oath, outside the hearing of the jury. T.G. testified that she was sitting outside the courthouse waiting to come in and confirmed that she did not speak to anyone.
The next day, defense counsel moved for a mistrial after "reflection" the evening before. After noting that T.G. testified that she did not speak to anyone and that he had no reason to disbelieve her testimony, the trial judge stated that he did not "think it would be productive to go into this with the jury." He denied defendant's request for a mistrial, finding that there was no basis to grant the motion. The judge also noted that "the confines of the courthouse are such that they sometime[s] arrive on the floor at the same time."
Ordinarily, PCR cannot be used to circumvent issues that could have been, but were not, raised on appeal. Afanador, supra, 151 N.J. at 50; R. 3:22-4. However, a court may grant relief from this procedural bar if enforcement of the bar would result in a fundamental injustice. R. 3:22-4. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
The record reflects that there was no information exchanged between the victim and the members of the jury. Under those circumstances, notwithstanding application of the procedural bar, we agree with the PCR judge's determination that defendant did not establish a prima facie case warranting an evidentiary hearing on the issue.
We next address defendant's two contentions respecting the admission of a purported sexual device into evidence and the testimony given by an investigator as to its nature. Defendant asserts that the device should not have been admitted at trial without the State establishing a chain of custody. He also argues that it was improper to permit the State's investigator to testify as to the adult bookstore clerk's statements regarding the uses for the device.
The device known as a "bracelet" or "leather strap" was introduced at trial as exhibit S-4, and identified by T.G. as an item defendant had with him when he entered her apartment. She also stated that it was taken by the police from the scene. Defense counsel did not object to the introduction of the device at the time it was identified by T.G. During the cross-examination of Detective William Nativo of the Passaic County Sheriff's Department, defense counsel inquired into the chain of custody of the device. Nativo responded that he did not recover the evidence from the crime scene, but received it from Detective Steve Cappuccio of the Haledon Police Department. Nativo did not know whether Cappuccio recovered the evidence from the crime scene. Don Vanderveen, the police officer responding to the call, was given a plastic bag containing a beer can, condom, condom wrapper, and walkman by T.G. upon arriving at the crime scene. No mention was made by Vanderveen as to the recovery of a sexual device.
Maura Papagni, the State's investigator, was permitted to give testimony, over the objection of defense counsel, concerning the nature of the device. The trial judge found:
[O]ver the objection of defense counsel my ruling is I'll permit the [investigator] to simply testify that that which has been marked into evidence -- that which the State seeks to mark into evidence is similar to that which appears in this book as a sex toy. That's it. [She's] not going [any] further, not what it's used for, nothing.
Papagni testified that she spoke to a sales clerk at Video Xcitement, an adult bookstore in Passaic. She stated:
I explained to him that we had an item in evidence. I explained to him what it was.
I asked him if he could identify that for me. He told me it was a sexual aid that was worn on the penis and the male genitalia.
He also showed me different items that were similar, but not exactly like it. But then he also brought out a catalog that you could order from and they had the exact item in that catalog.
Defense counsel did not cross-examine Papagni. Following her testimony, in support of his motion for mistrial or in the alternative to preclude admission of the device, defense counsel argued:
I would submit that basically the State has not proven chain of custody regarding that especially when it is in dispute how these items came about. You have one police officer who says he doesn't recall how the evidence was collected. We have [T.G.] saying some police officer collected it. We have a third officer saying he doesn't know how or where it was collected, but that somehow he got it from Detective Cappuccio over at Haledon, so obviously there's been no chain of custody to support where these items came from in the house, how they were taken out of the house, what procedures were followed. We don't have any of that there, Judge. So the chain of custody has not been established then obviously [it] cannot come in.
Admitting the device into evidence, the judge found:
Well, my recollection of the testimony is that these items were identified by the victim in this case. She identified them. She said this is it. These are the things. And these same items were identified by the officers who testified. Now there may be some testimony that indicate -- that isn't clear how one for from one to the other, but the witness testified and identified these things as the very things that she, in fact, had in her apartment on that day.
On appeal, defendant argues that the device was admitted into evidence without a proper foundation, Papagni's testimony concerning the nature of the device was inadmissible hearsay, and the PCR judge failed to address the issue. He maintains that the issue should be explored by an evidentiary hearing. Again, we disagree.
Defendant incorrectly frames his contentions regarding the sexual device as ineffective assistance of counsel. Because trial counsel objected, defendant's contentions regarding the inadmissibility of the device and Papagni's hearsay testimony raise judicial error. Claims of judicial error are normally precluded from being the subject of PCR, absent proof of a fundamental injustice warranting relief under Rule 3:22-4.
Here, the evidence of defendant's guilt was overwhelming.
T.G.'s vivid testimony, along with the corroborating testimony of her cousin, formed the basis for the jury's finding. The sexual device, in the larger scheme of the trial, was fairly insignificant. We, therefore, need not address whether T.G.'s identification was insufficient to lay a foundation or Papagni's testimony inadmissible hearsay. We are satisfied that the procedural bar of Rule 3:22-4 applies and the failure to afford defendant post-conviction relief was proper.
Finally, we are satisfied that defendant failed to present a prima facie case to warrant an evidentiary hearing on his remaining contention that he received deficient representation from his counsel based upon his being unprepared when the State called Sharon Herman as a witness and in overlooking defendant's former fiancée, B.V., as a potential witness. The State did not include Herman's name on its witness list because her name had been given to the State by defendant's former attorney. When trial counsel received the file from the Public Defender's Office, the letter from defendant's former attorney to the prosecutor's office forwarding Herman's name was not in the file. Thus, trial counsel's lack of awareness that the State was going to call Herman was understandable. It was not as a result of a lack of performance in preparation for defendant's defense.
Further, and according to the record, contrary to defendant's contention, defense counsel did not overlook defendant's former fiancée, B.V., as a potential witness. At the PCR hearing, it was established that B.V. was living in California and unavailable to be called as a defense witness. Simply stated, defendant's proofs were insufficient to present a prima facie case that trial counsel was ineffective based upon an alleged failure to prepare adequately for trial to warrant an evidentiary hearing.