April 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-03-0270.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Collester and C.S. Fisher.
Tried to a jury, defendant D.C. was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), (counts one and two), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), (counts three and four). The trial judge sentenced defendant to an aggregate term of twenty years imprisonment with ten years parole ineligibility. On direct appeal defendant made the following arguments:
POINT I -- THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below.)
POINT II -- THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT FRESH COMPLAINT TESTIMONY. (Partially Raised Below.)
POINT III -- THE TRIAL COURT ERRED BY FAILING TO USE LIMITING INSTRUCTIONS TO THE JURY REGARDING THEIR UTILIZATION OF FRESH COMPLAINT TESTIMONY. (Not Raised Below.)
POINT IV -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On October 11, 2000, we affirmed defendant's conviction and sentence in a per curiam opinion. Defendant's petition for certification was denied by the Supreme Court on February 13, 2001.
The defendant filed a pro se petition for post-conviction relief (PCR) and for assignment of counsel to represent him on the application. The trial judge did not appoint counsel and denied the petition on August 15, 2002, as procedurally barred by R. 3:22-4 and R. 3:22-5. On appeal we summarily reversed and remanded to the trial court for assignment of counsel as mandated by R. 3:22-6(a) and to reconsider the PCR petition in light of any submission by counsel. See State v. King, 117 N.J. Super. 109, 111-12 (App. Div. 1971).
Pursuant to our direction counsel was appointed to represent defendant. Appointed counsel raised additional arguments to defendant's pro se application, alleging that defendant was denied the effective assistance of trial and appellate counsel in part because trial counsel waived a Michaels hearing,*fn1 and appellate counsel did not raise the issue on appeal. The trial judge denied the PCR petition without an evidentiary hearing on grounds that defendant failed to demonstrate a prima facie of ineffective assistance of trial or appellate counsel because he did not demonstrate a reasonable likelihood of succeeding under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). On appeal of the September 19, 2006 denial of his PCR petition, defendant makes the following arguments:
POINT I -- THE COURT ERRED IN NOT GRANTING DEFENDANT AN EVIDENTIARY HEARING ON HIS PCR PETITION.
POINT II -- THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. LEGAL STANDARD FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL.
1. WAIVER OF THE MICHAELS HEARING.
2. FAILURE TO REQUEST A FRESH COMPLAINT HEARING AND A LIMITING INSTRUCTION ON THE USE OF SUCH EVIDENCE.
3. FAILURE TO OBJECT TO CERTAIN EVIDENCE.
4. FAILURE TO OBJECT TO THE STATE'S IMPROPER CLOSING ARGUMENTS.
5. FAILURE OF APPELLATE COUNSEL TO RAISE CERTAIN ISSUES ON APPEAL.
B. PROOF OF PREJUDICE TO THE DEFENDANT.
POINT III -- INSTRUCTIONS TO THE JURY REGARDING AN UNANIMOUS VERDICT WAS ERRONEOUS.
POINT IV -- THE CUMULATIVE EFFECT OF THE ERRORS OUTLINED ABOVE MANDATES REVERSAL OF THE DEFENDANT'S CONVICTION AND HIS SENTENCE.
Prior to trial on December 2, 1997, trial counsel filed a motion for a Michaels hearing and to exclude videotaped statements of twelve-year-old M.S. and nine-year-old J.S. based on the questioning by investigators of the Ocean County Prosecutor's Office. Counsel included the report of Dr. Edward Dougherty, who reviewed the victims' statements and their psychiatric records. Dr. Dougherty concluded there was a "great deal of shaping" by the investigators to elicit responses they deemed appropriate, and, moreover, J.S. was adamant in his interview that nothing happened to him.
Trial counsel moved for a Michaels hearing on the issue of the reliability and admissibility of the children's statements. The trial judge decided that any hearing would precede jury selection. However, prior to trial, defendant was assigned new counsel by the Office of the Public Defender, and the hearing was never held.
Both boys testified during the State's case-in-chief. M.S.'s testimony was consistent with his taped interview that defendant had committed certain acts which constituted sexual assaults. However, J.S.'s statements before the jury were contrary to his taped statement, asserting in his sworn trial testimony that defendant touched him on his "private parts." He explained that his earlier statement was false and that he was trying to protect the defendant.
After the boys testified, trial counsel objected to the admissibility of their taped statements, arguing the tapes would "put more of an emphasis" on the testimony of the two children which "obviously is the best evidence." The judge overruled the objection based on N.J.R.E. 803(c)(27). The following colloquy then took place relating to the requested Michaels hearing:
THE COURT: Now, the 104 hearing wasn't held in this matter, and it was generally a pretrial hearing commonly referred to as a Michaels hearing in these types of cases. But there was no application made.
There was contact, as I understand it, . . . between [Assistant Prosecutor] Mackolin and your office. Mr. Mackolin advised me that you were not making a request for the Michaels hearing, there was no need for the Michaels hearing.
But I think, clearly, the record reflects in this case that you have been aware of the existence of these videotapes; have you not, sir?
DEFENSE COUNSEL: I absolutely have, Judge, and not only -- if I may, with regard to such, we specifically, my client and I, went over the elements of a Michaels hearing and obviously didn't feel as though that was appropriate. And I did waive the Michaels hearing intentionally, Judge.
During oral argument on the PCR application, the issue of defendant's consent to the waiver of the Michaels hearing led to the following colloquy:
MR. MIGNELLA: Well, Judge, I don't believe that was gone over with the defendant so that he could understand what the Michaels hearing was, what the report of Dr. Dougherty was.
THE COURT: So you're saying you would present the defendant to testify that [trial counsel] didn't make it clear to him, when [trial counsel] stated on the record in the presence of the court that he'd reviewed all of Dr. Dougherty's reports with his client, and he reached the conclusion, by inference, they reached the conclusion it would not be in their interest to proceed with the Michaels hearing.
MR. MIGNELLA: Yes.
In his decision denying the PCR application, the court stated:
I think the most powerful argument that comes before this court in this application is, what were the circumstances of the waiver of the Michaels hearing.
At first blush it would appear there would be no basis for any reasonable attorney to take the report of Dr. Dougherty on its face, when a proper motion had been made and a determination pretrial had been made that the Michaels hearing, if necessary, would be conducted at the time of trial. There was no reason to do it pretrial . . . because it would not necessarily be dispositive of the case, and that determination was made by this trial court because, in conferencing, I became aware of the fact that even if the defense had been successful in their Michaels motion, the State was not going to dismiss the indictment and the charges, that they had evidence beyond the tapes and intended to present the live testimony of the victims for the jury to consider.
It would not have gutted the State's case, the substance of the State's case. And the live testimony of the witnesses would still have been available to the State and the State would have still proceeded. That being said, its not a quantum leap . . . that there was a conscious and deliberate trial strategy decision made by defense counsel not to press the Michaels issue, because if the case was going to be there against him anyway, even if he was successful in Michaels than why not have the inconsistency of the one victim's videotape where he said nothing happened?
The court then speculated about the strategy of trial counsel in waiving the Michaels hearing. The court suggested that defense counsel would not want to confront J.S. with the inconsistent statements he made in the videotape interview.
Trial counsel, I think, from a strategy perspective says: I don't want to attack this child. If I attack this child in the presence of this jury, that's bad strategy. That's not a good thing to do when I have this videotape that, if I don't attack it under Michaels, the State will bring in, and it's inconsistent, and I can argue it, it's inconsistent on its face with what he said on the stand, and I don't have to attack him.
The court then made a finding that the report of the defense expert was of no weight on the issue of the admissibility of the videotape statements.
[W]hen I review Dr. Dougherty's wishy-washy, in this Court's view, report, juxtaposed [State expert]'s unmitigated and straightforward report, unequivocating, I'm convinced, defense counsel says, that I can't win the Michaels hearing anyway, but if I get lucky and I win it, what have I won?
The court summed up its ruling as follows:
It would appear from the record, while certainly, as a Monday-morning quarterback and in reviewing these matters, we would like to have a more detailed explanation, and perhaps it would be better if the Court had a colloquy separately with [D.C.], did [trial counsel] explain to you in the pluses and the minuses of waiving this Michaels hearing, and have a full colloquy with him, the fact of the matter is it was trial strategy, and I think that the strategy has to be viewed with extreme deference under the Strickland-Fritz standard. And great latitude has to be given to defense trial strategy for those purposes.
I don't believe a plenary hearing would be helpful in that regard, because the second prong can't be shown. Had there been a win on the Michaels issue, had there been a hearing, what would have changed with regard to the testimony, the live testimony of the victims?
Not every PCR application entitles a defendant to a plenary hearing, and a trial judge has the discretion to evaluate an issue as lacking factual or legal merit. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998). However, in this case, the court speculated as to motivation and strategy of trial counsel in waiving the Michaels hearing and assumed that defendant knowingly agreed to such a waiver. While the trial judge may well have been correct in his assessment, we find that an evidentiary hearing is best suited to resolve these issues.
Trial counsel may then testify as to his reasons for not pursuing the Michaels hearing and the defendant's consent. A hearing is required since there is dispute of fact regarding matters not of record. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850 (1997); State v. Murray, 162 N.J. 240, 249 (2000); State v. Munim, 361 N.J. Super. 370, 387 (App. Div. 2003).
Reversed and remanded.