On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-08-0917.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Sapp-Peterson and Messano.
Defendant R.T.S., Sr. appeals from the order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). According to the victim, S.H., who is defendant's granddaughter, on Valentine's Day of 1999, while she and her siblings were spending the night at defendant's house, she awakened on the couch in the living room with her pants unbuttoned, zipper down, and belt loose. On February 18, 1999, upon receiving this information, her mother (N.S.) asked S.H. who she thought was responsible, to which S.H. replied, "Pop-pop . . . because before when I was over there when I stayed the night he came into the room to wake [us] up for breakfast and he had touched [me]." When N.S. asked S.H. what she meant "by touch," S.H. told her mother that defendant touched her "stuff[,]" referring to her vagina, with his fingers. Later, in June of 1999, S.H. told her mother that "[she] forgot to tell [her] something else" and revealed to N.S. that after the first incident, she observed defendant go into the closet and start licking his fingers.
Over the objection of defendant, the trial court, in a pretrial in limine ruling, permitted defendant's then thirty-four-year-old niece, D.M., to testify about prior acts of sexual abuse that defendant committed against her. The court ruled that D.M.'s testimony was relevant to prove "defendant's intent, negate any inference of mistake and bias, and prove feasibility." During the trial, the judge later modified his ruling and told the jury that the testimony would be permitted for the limited purpose of establishing the feasibility for S.H. to have been sexually assaulted while other persons were in the same room or house. The judge also gave the jury a limiting instruction on the specific purpose and limitations to be placed on D.M.'s testimony.
D.M. testified that when she was six years old, defendant started touching her inappropriately, the first time being in the bedroom she shared with her brother, and thereafter "whenever he caught [her] by [herself.]" D.M. further testified that beginning when she was eight years old, defendant started having sexual intercourse with her and that he would cover her mouth while other children were sleeping in the same room. D.M. also claimed that she had witnessed defendant sexually abuse his own daughter, who at the time of the trial was deceased.
In another pretrial ruling, the court granted the State's motion to exclude any reference to the conviction of T.J. for endangering the welfare of S.H. The conviction stemmed from events involving T.J. and S.H. that occurred subsequent to the incidents that formed the basis of the charges against defendant. T.J. apparently became the boyfriend of defendant's wife after defendant's arrest. Defense counsel sought to use T.J.'s conviction on the issue of S.H.'s credibility, since S.H.'s allegations against T.J. involved a similar fact pattern, and also to suggest that T.J., rather than defendant, was the perpetrator of the offenses for which defendant was standing trial. During oral argument on the motion, however, defense counsel acknowledged that "based on everything that I see [T.J.] was not in the picture at that point in time." The court granted the State's motion, noting that it's pretty clear, it's very clear from the statement of . . . the maternal grandmother of the child, [T.J.] was not in the picture at the time that these events are alleged to have happened in the first day of September 1998 to the 19th day of February, 1999. He just wasn't in the picture at all, so it's not relevant . . . .
Following a four-day trial, the jury convicted defendant of all charges. The trial judge denied defendant's motion for judgment of acquittal and imposed an aggregate sixteen-year period of incarceration. Upon release, defendant is subject to community supervision for life under Megan's Law, N.J.S.A. 2C:7-1 to 21. The judge also imposed the requisite monetary assessments. Defendant filed a timely Notice of Appeal. In a per curiam opinion, we affirmed the conviction and sentence imposed. State v. R.T.S., No. A-4187-01T4 (App. Div. Nov. 17, 2003) (slip op. at 12). The Supreme Court denied defendant's petition for certification. State v. R.T.S., 179 N.J. 311 (2004). On March 3, 2005, defendant filed a pro se PCR application that was later amended after the appointment of counsel.
In the brief supporting his PCR petition, defendant argued that both his trial and appellate counsel were ineffective because they both took an all or nothing approach to the other-crimes evidence issue by seeking only a determination that the other-crimes evidence was inadmissible in its entirety without also arguing in the alternative that if the other-crimes evidence was deemed admissible, that the admitted evidence had to be sanitized and limited to issues on which it was admissible.
Defendant noted that the Appellate Division did not address whether the other-crimes evidence admitted had been properly sanitized because neither trial counsel, the trial judge or appellate counsel raised this issue. Defendant urged that the impact of admitting unsanitized prior bad-acts evidence was that D.M. had "free range to testify in gruesome detail about events that allegedly occurred twenty-five years before." Citing State v. Collier, 316 N.J. Super. 181 (App. Div. 1998), aff'd, 162 N.J. 27 (1999), defendant argued that these details were so prejudicial that they were not susceptible to cure by any limiting instruction, irrespective of the clarity of any such instruction.
Defendant also claimed that he was denied effective assistance of counsel because (1) neither trial counsel nor appellate counsel raised the prejudicial effect of the prosecutor's opening statement; (2) appellate counsel failed to address the trial court's error in admitting hearsay evidence during the testimony of the State's medical expert; (3) trial counsel failed to introduce evidence that S.H. may have been motivated by her parents' prejudice because defendant owned their home, which defendant purchased because his son only worked part-time due to a drug problem; and (4) appellate counsel's failure to argue that the trial court's decision excluding reference to T.J.'s conduct towards S.H. violated defendant's Sixth Amendment right of confrontation. Defendant's final argument in support of PCR was that the cumulative effect of the multiple errors and the ineffective assistance of counsel caused an unfair result.
The PCR judge rejected all of defendant's arguments, finding that the only argument with any potential merit related to the scope of the testimony of the expert witness, Dr. Linda Shaw, whose testimony defendant argued went beyond that which was necessary to address her examination of S.H. The judge concluded, however, that Dr. Shaw's testimony was not so prejudicial as to have deprived defendant of a fair trial or to have changed its outcome because the hearsay testimony merely ...