On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-06-0244.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Defendant Lloyd W. Hatcher, Jr., appeals from the denial of his petition for post-conviction relief. An evidentiary hearing was not conducted. Defendant is serving a life term with a twenty-five year period of parole ineligibility following his conviction of first degree aggravated sexual assault, third degree criminal restraint and second degree burglary. On direct appeal, the conviction was affirmed, but "[w]hile we ha[d] serious doubts about Hatcher's ineffective assistance of counsel claim, . . . we decline[d] to decide the issue at this time." State v. Hatcher, No. A-2137-99T4 (App. Div. Sept. 27, 2002) (slip op. at 3), certif. denied, 176 N.J. 73 (2003).
In his petition, defendant asserts that trial counsel did not provide effective assistance in his defense. He alleges that trial counsel failed to meet with him prior to trial, failed to conduct an investigation of potential state witnesses as to bias or ability to observe, failed to review photographs, failed to cross-examine a witness as to her prior convictions or drug use, failed to interview or call an expert witness, failed to interview or call a police officer as a witness at trial, failed to file a motion to suppress evidence, allowed the introduction of false or perjured testimony at trial, and failed to object to conduct by the prosecutor at trial. The trial judge dismissed the petition. She found that defendant presented no more than a list of omissions by trial counsel. Accordingly, he failed to raise a prima facie case that any omission or combination of omissions caused prejudice to defendant. The judge also found that the specific act of prosecutorial misconduct asserted by defendant, turning off the lights during trial to simulate what the victim could see with duct tape applied to her eyes, "was not something highly prejudicial." She conceded it was a "dramatic way" of depicting the victim's situation but did not cause prejudice to defendant.
On appeal, defendant raises the following arguments:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVE ASSISTANCE OF COUNSEL POINT II - THE PROSECUTION'S MISCONDUCT CONSTITUTED REVERSIBLE ERROR.
In a pro se supplemental brief, defendant reiterates the ineffective assistance of counsel and prosecutorial misconduct arguments presented by assigned counsel.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2062-63, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists 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. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.
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 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. ...