June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 95-02-0313.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 9, 2008
Before Judges Cuff, Lisa and Simonelli.
Defendant is serving an aggregate sentence of sixty years imprisonment with a thirty-year parole disqualifier, resulting from a 1996 trial. Defendant was convicted of sexual offenses against six victims, all young boys. The offenses occurred between 1986 and 1994 at several residences in which defendant lived in Middlesex and Monmouth Counties. As to three of the victims, defendant was found guilty of one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) or (2). Those convictions served as the lead counts for defendant's sentence. The judge sentenced defendant to twenty years imprisonment with a ten-year parole disqualifier on each of those counts, and ordered that they run consecutively. Sentences on the remaining counts were ordered to run concurrently with the lead counts.
Prior to sentencing, defendant's trial counsel filed a motion for judgment of acquittal notwithstanding the verdict or a new trial. The judge denied the motions. Defendant also submitted a pro se motion for a new trial alleging ineffective assistance of trial counsel. The judge denied that motion as well, and proceeded to sentence defendant.
Defendant appealed, and in an unreported decision, we affirmed his conviction and sentence. State v. R.S., A-3299-96T4 (App. Div. Oct. 21, 1998). The Supreme Court denied certification. State v. R.S., 157 N.J. 646 (1999).
Defendant filed a pro se petition for post-conviction relief (PCR) on December 17, 2001. Assigned counsel filed an amended petition on June 24, 2005. The petition alleged various acts of ineffective assistance of trial and appellate counsel. The PCR proceeding was conducted by a judge other than the trial judge (who was then deceased). Without granting an evidentiary hearing, the judge issued a written opinion on October 27, 2006, and a corresponding order denying the PCR petition. This appeal followed.
In the appeal filed by his attorney, defendant argues:
THE DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO DO ANY MEANINGFUL INVESTIGATION OF THE CASE.
A. The investigation was clearly deficient.
B. The PCR court clearly used the wrong standard in finding that defendant had failed to establish a prima facie case of ineffectiveness.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE COURT'S SUPPLEMENTAL JURY INSTRUCTION, WHICH ALLOWED THE JURORS TO FIND SEXUAL PENETRATION BASED UPON "RUBBING THE PENIS BACK AND FORTH BETWEEN THE INNER THIGH." APPELLATE COUNSEL WAS EQUALLY INEFFECTIVE IN FAILING TO RAISE THIS OBVIOUSLY ERRONEOUS JURY INSTRUCTION AS PLAIN ERROR.
A. The trial court incorrectly allowed the jury to find sexual penetration by rubbing the penis against the victim's thigh.
B. Counsel were ineffective in failing to object to the incorrect jury instruction and in failing to raise the issue on appeal.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE COURT'S INSTRUCTION ON RULE 404(b), WHICH COMPLETELY FAILED TO TELL THE JURY THAT EVIDENCE OF THE OUT-OF-STATE SEXUAL ASSAULTS WAS "NOT ADMISSIBLE TO PROVE THE DISPOSITION OF [THE DEFENDANT] IN ORDER TO SHOW THAT HE ACTED IN CONFORMITY THEREWITH." APPELLATE COUNSEL WAS EQUALLY INEFFECTIVE IN FAILING TO CHALLENGE THE CLEARLY INSUFFICIENT LIMITING INSTRUCTION GIVEN BY THE TRIAL COURT.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBTAIN THE PRIOR TRIAL TESTIMONY OF [J.Q.] AND [D.S.], INCLUDING TESTIMONY IN WHICH [J.Q.] SPECIFICALLY DENIED THAT DEFENDANT HAD EVER TOUCHED HIM INAPPROPRIATELY AND [D.S.] WAS QUOTED AS TELLING THE POLICE THAT HE HAD NOT BEEN THE VICTIM OF ANY IMPROPER TOUCHING. IN ADDITION, COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH [S.F.] WITH HIS PRIOR INCONSISTENT TESTIMONY.
COUNSEL WAS INEFFECTIVE IN FAILING TO REBUT [J.Q.]'S AND [D.S.]'S TESTIMONY ABOUT SEXUAL ASSAULTS WHICH SUPPOSEDLY OCCURRED AT DEFENDANT'S HOME IN WOODBRIDGE FROM NOVEMBER, 1984, UNTIL MAY, 1989, BY PRESENTING PROOF THAT DEFENDANT ACTUALLY LIVED IN OLD BRIDGE AND LAURENCE HARBOR DURING MOST OF THAT TIME.
COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT WHEN DEFENDANT WAS BROUGHT TO TRIAL DURING JURY SELECTION WEARING THE SAME SOILED AND WRINKLED CLOTHING IN WHICH HE HAD BEEN ARRESTED.
In a supplemental pro se brief, defendant further argues:
COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A JURY INSTRUCTION ON THE ELEMENT OF TERRITORIAL JURISDICTION EVEN THOUGH MUCH OF THE TESTIMONY RELATED TO EVENTS IN OTHER STATES, INCLUDING ALLEGED SEXUAL ASSAULTS IN MARYLAND AND FLORIDA. APPELLATE COUNSEL WAS ALSO INEFFECTIVE IN FAILING TO RAISE THIS OBVIOUSLY MERITORIOUS ISSUE ON APPEAL.
COUNSEL WAS INEFFECTIVE IN FAILING TO IMPEACH [D.S.] AND [J.Q.] WITH EVIDENCE THAT DEFENDANT HAD FILED CRIMINAL CHARGES AGAINST THEM FOR STEALING ABOUT $22,000.00 WORTH OF GOODS FROM HIS APARTMENT AFTER HIS ARREST.
COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT AVAILABLE MITIGATING EVIDENCE AT DEFENDANT'S SENTENCING.
We reject these arguments and affirm.
At the time of trial, defendant was forty-six years old. He moved to Woodbridge Township (Hopelawn) in 1985 to open a karate school. He moved to Laurence Harbor in Old Bridge Township sometime between the spring of 1987 and the spring of 1988. He lived there with his "common law" wife and her son. In June 1989, he moved to Matawan Terrace Apartments, and then in 1990 to Barrington Gardens in Aberdeen.
During the span when these crimes occurred, defendant made it a practice of befriending young boys who had no father in the home and typically who were troubled in some way. Some of the boys stayed with him overnight from time to time. Others lived with him for extended periods. He took some of the boys on trips out of state, including to Maryland and Florida.
Defendant focuses on the three lead counts we have mentioned, in which he was convicted of first-degree aggravated sexual assault. More particularly, count one charged that in August 1994 in Aberdeen defendant committed an act of sexual penetration with S.F., who was less than thirteen years old; count twelve charged that between September 1, 1990 and July 31, 1994 in Aberdeen defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old or when D.S. was at least thirteen but less than sixteen years old and defendant had supervisory or disciplinary power over D.S.; count eighteen charged that between November 19, 1984 and May 31, 1989 in Woodbridge defendant committed an act of sexual penetration with J.Q. when J.Q. was less than thirteen years old or when J.Q. was at least thirteen but less than sixteen years old and defendant had supervisory or disciplinary power over J.Q.
Defendant was also charged with two other counts of first-degree aggravated assault against D.S. Count six charged that between October 17, 1985 and May 31, 1989 in Woodbridge defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old. And count nine charged that between June 1, 1989 and August 31, 1990 in Matawan and/or Aberdeen defendant committed an act of sexual penetration with D.S. when D.S. was less than thirteen years old. The jury acquitted defendant of counts six and nine.
Each of the six boys testified at trial, as did defendant. Defendant denied any sexual conduct at any time with any of the boys. In our prior opinion, we summarized the sexual misconduct alleged by each victim, as described in their trial testimony. We repeat those summaries here:
Incidents Involving S.F.
S.F. was twelve years old when the alleged incidents took place in 1994. At that time he lived in Staten Island, New York with his mother. S.F. met defendant in May 1994 and knew defendant as "Sam." Defendant informed S.F. that he was a police officer and a karate teacher. He befriended S.F. and often took S.F. on trips to flea markets, carnivals and amusement parks. Defendant also took S.F. on trips to Maryland and Florida as well as to defendant's home. In May 1994, defendant took S.F. and his brother to Cumberland, Maryland during Memorial Day weekend. On the first night of this trip, S.F. went to bed next to his brother who slept next to defendant. When S.F. awoke, defendant was next to S.F. On the second night, defendant slept next to S.F. and placed his hand under S.F.'s underwear and rubbed his hand on S.F.'s penis for about five to ten minutes. The next night, defendant also slept next to S.F. and rubbed S.F.'s penis for about five to ten minutes.
Defendant took S.F. on a 10 day trip to Gainesville, Florida during the July 4 weekend in 1994. During the first night, while S.F. slept on the floor, defendant rubbed his hand on S.F.'s penis. On the third night, S.F. awoke again to find defendant rubbing his hand on S.F.'s penis and putting his mouth over S.F.'s penis for about a minute.
In August 1994, defendant took S.F. to Action Park in New Jersey. After a day at the park, defendant drove S.F. to defendant's home. While watching television in defendant's bedroom, S.F. fell asleep. He woke up to discover defendant rubbing S.F.'s penis with his hand for about five to ten minutes. During that same night, defendant attempted to insert his penis into S.F.'s anus. S.F. felt defendant's penis rub against his buttocks. Defendant also placed his mouth over S.F.'s penis for about one minute.
The next day, S.F. went to a carnival with defendant and returned to defendant's home after the carnival. Around 10:00 p.m., S.F. awoke to find defendant rubbing S.F.'s penis. S.F. turned over and defendant "tried" to put his mouth on S.F.'s penis. The next morning, S.F. returned to his mother's home.
Defendant denied that any sexual contact occurred.
Incidents Involving D.S.
D.S. was born on October 17, 1978. He first met defendant when he was about six years old. D.S. also knew defendant by the name of "Sam," who told D.S. that he was a police officer. At the time, defendant was a karate instructor in Perth Amboy, New Jersey.
When D.S. was about fourteen years old, he began selling candy for defendant. Occasionally, defendant would drive D.S. to defendant's house. On other occasions, D.S. would stay over at defendant's house the night before embarking on trips to Pennsylvania and karate tournaments with defendant. When D.S. stayed over, D.S. would often sleep on defendant's couch or on the floor. D.S.'s mother was aware that D.S. was going on these trips and staying over at defendant's home.
D.S. was about seven or eight years old when he had his first encounter with defendant in Woodbridge, New Jersey. One night, D.S. awoke in the middle of the night and discovered defendant rubbing his penis between D.S.'s legs until defendant ejaculated.
Later, defendant moved to Matawan and D.S. began living with defendant. Because D.S. was performing poorly at school in Perth Amboy, D.S.'s mother and defendant agreed that D.S. would stay with defendant and transfer to the Matawan school system. D.S. stayed with defendant from Monday to Friday and returned home to his mother for weekends.
While at defendant's home, D.S. slept on a fold-out bed in defendant's bedroom.
On several occasions, defendant placed his penis between D.S.'s legs and ejaculated. Defendant also rubbed D.S.'s penis until D.S. ejaculated and would have D.S. rub defendant's penis until defendant ejaculated. D.S. could not specify the number of times that these activities occurred. When D.S. was about twelve years old, defendant moved to Aberdeen, New Jersey and D.S. followed. Defendant continued to have similar sexual activities with D.S. On one occasion D.S. recalled defendant placing his mouth over D.S.'s penis.
Defendant denied that any sexual contact occurred.
Incidents Involving J.Q.
J.Q. was born on November 19, 1973. He also knew defendant by the name of "Sam." J.Q. first met defendant at the karate school in Perth Amboy. Occasionally, J.Q. visited defendant's home in Woodbridge, New Jersey. J.Q. recalled that many of defendant's karate students slept over defendant's home and in the same room with defendant. There were nights, however, when J.Q. was the only child that slept over at defendant's home. When J.Q. slept over, he would sleep on the floor or with defendant. On one visit to defendant's home, defendant unzippered J.Q.'s pants and touched J.Q.'s penis for about five minutes. On another visit, J.Q. recalled that defendant pulled J.Q.'s pants down and placed defendant's penis between J.Q.'s legs. On this same occasion defendant placed his mouth on J.Q.'s penis. All of these events occurred while defendant lived in Woodbridge. J.Q. related on one occasion outside defendant's home, defendant pulled J.Q.'s foreskin back in an attempt to instruct J.Q. on how to avoid a possible infection while J.Q. was urinating in a public restroom. J.Q. recalled that defendant engaged in this type of contact "[a] lot of times."
After defendant moved to Matawan, J.Q. continued to sleep over defendant's home. J.Q. began living with defendant because J.Q. and his mother were having problems. J.Q. was about sixteen years old at the time. In Matawan, defendant continued to engage in the same sexual conduct with J.Q. that he had engaged in with J.Q. while in Woodbridge.
Defendant denied that any sexual contact occurred.
Incidents Involving J.G.
J.G. was born on July 11, 1983. He also knew defendant by the name of "Sam." In 1993, when J.G. was about nine years old, J.G.'s cousin introduced him to defendant and J.G. began taking karate lessons from defendant. Defendant also told J.G. that he was a police officer.
J.G. visited defendant's home in Aberdeen three times. On J.G.'s first trip to defendant's home, J.G.'s cousins and friend came along. During J.G.'s first visit, defendant entered the bathroom while J.G. was urinating and touched J.G.'s penis with his hand. Later that day, defendant sat J.G. on his lap and moved J.G. side to side, up and down. Later, when J.G. was in the living room, defendant place[d] his hand on top of J.G.'s pants. J.G. did not sleep over on this visit.
Defendant made no contact with J.G. on J.G.'s second and third visits to defendant's home. On each of these trips, J.G.'s mother was informed by defendant that he was taking J.G. to his house. Defendant had also taken J.G. on overnight trips to West Virginia and Michigan. These trips were to karate tournaments. Defendant informed J.G.'s mother about the trip to Michigan. J.G. does not recall whether defendant spoke to J.G.'s mother about the trip to West Virginia.
Defendant denied that any sexual contact occurred.
Incidents Involving D.A.
D.A. was born on September 2, 1979. At the time of trial, D.A. was enrolled in special education classes because of a learning disability.
D.A.'s brother came to know defendant through his karate classes. D.A.'s brother was about fifteen years old at the time. When D.A.'s brother went on trips to Seaside Heights with defendant to attend karate tournaments, D.A.'s brother took along D.A.
In 1993, when D.A. was fourteen years old, he began taking karate lessons with defendant. During that summer, defendant occasionally took D.A. to his home in Perth Amboy. Defendant took D.A. to a flea market. During this trip, defendant followed D.A. into the bathroom. While in the bathroom, defendant touched D.A.'s penis with his hand over top of D.A.'s clothing. D.A. recalled that defendant's hand was moving up and down.
On another occasion, defendant invited D.A. to defendant's apartment in Matawan for a swim in the pool. After D.A. finished swimming in the pool, D.A. went inside to change clothing. D.A. recalled that defendant entered the bathroom to make sure that D.A.'s penis was dry. Defendant then proceeded to dry D.A.'s penis with a towel.
On another occasion, D.A. recalled that defendant requested D.A. to undo D.A.'s pants and began checking D.A.'s penis for a rash with his hand. At that time, defendant's hand was moving in an upward and downward motion.
Defendant denied that any sexual contact occurred.
Incidents Involving L.C.
L.C. was born on August 19, 1987. He also knew defendant as "Sam" and believed that defendant was a police officer. Defendant was familiar with L.C.'s grandparents and mother. L.C. took karate lessons from defendant in defendant's garage and sold candy for defendant.
In 1993, when L.C. was seven years old, he visited defendant's home in Woodbridge. Defendant would drive L.C. to defendant's home on these visits. On one of these visits, defendant touched L.C.'s penis with his hand and also touched L.C.'s buttocks.
L.C.'s mother stated that there were times that defendant would take responsibility for L.C., particularly when defendant took L.C. to Florida and when L.C. spent the weekend at defendant's home. Before defendant would take L.C. to defendant's home or on a trip, defendant would first seek the permission of L.C.'s mother. L.C.'s mother understood that defendant was assuming responsibility for
L.C. and provided a letter authorizing defendant to take L.C. to Florida. L.C.'s mother was also lead to believe by defendant that defendant was a police officer.
Defendant denied that any sexual contact occurred.
We will provide additional factual information where appropriate in conjunction with our discussion of defendant's appeal arguments.
The Sixth Amendment, and the parallel provision of the New Jersey Constitution, provides to each criminal defendant the right to the effective assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; 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 right to effective assistance of counsel extends to the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed. 2d 821, 830 (1985). "An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). The starting point for Sixth Amendment ineffective assistance claims continues to be Strickland. Our Supreme Court adopted "the Strickland test" to consider challenges to attorney performance under our constitution in State v. Fritz, 105 N.J. 42, 58 (1987).
Under Strickland and Fritz, the petitioner must satisfy a two-prong test in order to expunge a prior conviction on the basis of ineffective assistance. The defendant must first show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This prong "is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). This objective standard recognizes that the goal of the Sixth Amendment remains to ensure a fair trial, not to guarantee optimal representation. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694; State v. Davis, 116 N.J. 341, 351 (1989), superseded on other grounds by, N.J. Const. art. I, ¶ 12. The standard also places a large premium on counsel's right to formulate trial strategy as his or her professional judgment sees fit. State v. Arthur, 184 N.J. 307, 320-21 (2005). Given these two considerations, courts indulge in a strong presumption that counsel provided reasonable assistance. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694).
Under the second prong, the defendant must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Under this prong, we rarely presume prejudice. Fritz, supra, 105 N.J. at 60-61. The presumption of prejudice is warranted "when there are 'circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.'" Id. at 53 (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 667 (1984)). "Such circumstances involve the complete denial of the right to counsel altogether, actual or constructive." Ibid.
As the Supreme Court noted in Strickland, supra, it is permissible for the reviewing court to confine its analysis to either prong. 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
Ineffective assistance claims raise both factual and legal questions. We usually defer to the PCR court's findings of facts so long as there is adequate credible evidence in the record to support them. Arthur, supra, 184 N.J. at 320. However, there was no evidentiary hearing in this case, and thus the PCR court did not engage in credibility determinations and factfinding based upon live testimony. The determination was based on a documentary record, and it is the same documentary record we have before us. Accordingly, we owe no deference to any factfinding by the trial court. The PCR court's appraisal of the performance of trial and appellate counsel in light of the constitutional guarantee of effective assistance is a legal conclusion to which a reviewing court owes no special deference. State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Some of the arguments before us require an analysis of the facts in the documentary record in order to determine whether the PCR court erred in either (1) finding no basis for relief, or (2) finding an insufficient showing to warrant an evidentiary hearing to determine facts that lay outside the trial record. See State v. Preciose, 129 N.J. 451, 462 (1992). Other arguments implicate strictly issues of law. Most notably, these include the legal sufficiency of the N.J.R.E. 404(b) limiting instruction and the trial court's instructions defining "penetration" and responding to a specific question from the deliberating jurors regarding that definition.
Guided by these principles, we consider defendant's arguments.
We first address defendant's argument pertaining to the limiting instruction regarding the N.J.R.E. 404(b) evidence that was admitted at trial. S.F. was permitted to testify about alleged sexual misconduct perpetrated against him by defendant in Maryland and Florida. Prior to its introduction, the judge instructed the jury on the limited relevance of this testimony. He stated:
Ladies and gentlemen, the Court has ruled that the prosecutor may ask this witness with regard to those offenses or those things which allegedly occurred in Cumberland, Maryland and Gainsville [sic], Florida and this evidence is evidence of proof of motive, intent, and absence of mistake. And the evidence of these other similar sexual assaults that the defendant allegedly committed on this victim, [S.F.], is to show motive and opportunity and to show the feasibility of the proposition that the defendant could sexually assault a victim without others being aware of anything unusual.
And that evidence is also being admitted to demonstrate the defendant's successful use of pretext of being a father image in [S.F.]'s life, and to show that the defendant's [contacts] with [S.F.] in this case were for the prohibited purposes of sexual arousal or gratification and not by mistake or inadvertence.
Defense counsel did not object to the instruction, but at the completion of S.F.'s testimony he moved for a mistrial. The judge denied the motion, but promised to review the matter and give further instruction if the judge deemed it necessary. When the jury returned after the lunch break, the judge told the jurors he wanted "to make a point of clarification." He explained that the testimony of the alleged incidents in Maryland and Florida "was offered not to prove that the crimes alleged in this indictment actually occurred but only for the limited purpose to show proof of motive, intent and absence of mistake," "feasibility," "defendant's successful use of pretext" and "that the defendant's contacts with [S.F.] in this case were for the prohibited purposes of sexual arousal or gratification and was not by mistake or inadvertence." The judge then reiterated, "They're not charged in this indictment, and they're not to prove the charges in the indictment but for the reasons that I just enunciated to you. Okay."
On direct appeal, defendant's appellate counsel challenged the admission of this other crimes evidence, but did not allege error in the limiting instruction. Applying State v. Cofield, 127 N.J. 328, 338 (1992), we found no mistaken exercise of discretion in allowing the testimony. Therefore, the issue of admissibility has already been adjudicated and is not a proper subject for PCR consideration. See R. 3:22-5.
Rather, defendant argues that the instruction was fatally defective because it failed to instruct the jury on the prohibited purpose of the other crimes evidence, namely that it could not be used to show predisposition to commit the crimes for which defendant was on trial. Thus, defendant argues that his trial counsel was deficient for failing to object and his appellate counsel was deficient for failing to raise the issue on appeal. Defendant argues that the deficiency in the instruction satisfies the plain error standard, and had it been raised by his trial or appellate counsel, the outcome of the trial likely would have been different. We do not agree.
N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule's purpose remains to preclude the introduction of a defendant's past acts "when such evidence is offered solely to establish the forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997).
The rule recognizes, however, that the evidence of other acts may carry special probative value in some limited circumstances. "Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent . . . or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). When the court permits the introduction of this evidence, it "must precisely instruct the jury that the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant." State v. Blakney, 189 N.J. 88, 92 (2006). This limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). "An explicit instruction that the jury should not make any inferences about defendant's propensity to commit crimes is 'an essential point to be made in the limiting instruction.'" State v. Reddish, 181 N.J. 553, 611 (2004) (quoting State v. Marrero, 148 N.J. 469, 496 (1997)).
In Marrero, the Court considered several factors in concluding that the limiting instruction, which failed to include a clear anti-propensity component, was nevertheless not a basis for reversal. First, because the instruction told the jurors they could not use the other crime evidence for any purpose except motive and intent, the Court held that the instruction "implicitly told the jury not to use the other-crime evidence for propensity." Marrero, supra, 148 N.J. at 496 (emphasis added). Further, the Court noted that "the evidence of guilt, independent of the other-crime evidence, was nearly overwhelming." Ibid. A fact-specific inquiry is required in such cases to determine whether the failure to give a limiting instruction that is complete in every respect can nevertheless constitute harmless error if the inadequacy of the limiting instruction did not tip the jury's deliberations in favor of a guilty verdict. Id. at 497. Finally, the Court noted that the problem in Marrero was "an incomplete instruction rather than an affirmative misstatement of the law." Id. at 496.
Applying these considerations here, we do not find a basis for reversible error. To be sure, the instruction should have included a clear statement that if the jurors believed defendant committed the sexual improprieties against S.F. in Maryland or Florida, they could not use that evidence to conclude that defendant was a bad person and was predisposed to committing further sexual improprieties against S.F. in the charged New Jersey offenses. However, in his clarifying instruction, the judge told the jurors that the Maryland and Florida evidence "was offered not to prove that the crimes alleged in this indictment actually occurred but only for the [expressed] limited purpose[s]." Implicitly, the jury was told that it could not use the other crimes evidence for any other reason, which would include propensity to commit the crimes in New Jersey.
This was an incomplete instruction and not an affirmative misstatement of law. In making a fact-specific inquiry to analyze the probable impact of the deficiency, we note several things. The evidence of defendant's guilt in this case was overwhelming. The jury obviously believed that he engaged in a long-term pattern of sexually assaultive behavior against these young boys. S.F. was not the only victim, and this was not merely a case of the word of the defendant against the word of a single victim. Nor did the criminal event for which defendant was on trial involve a single episode. The evidence in the case included a multitude of similar "other crimes" evidence with respect to all of the victims, including S.F., which was properly before the jury. This tended to minimize the significance of the out-of-state other crimes evidence pertaining to S.F. Further, as we will discuss with regard to the jury instruction defining "penetration," the jury carefully evaluated the evidence and rendered a discriminating verdict, acquitting defendant of two first-degree aggravated sexual assault charges pertaining to D.S. where the evidence was lacking. This does not signal that the jury was swayed to finding predisposition based upon the other crimes evidence.
In our opinion on direct appeal, we said, "Further, defendant contends that the trial court did not make clear how, if at all, the State met its burden for admission of evidence of defendant's out of state acts with S.F." After discussing the bad acts evidence and setting forth the Cofield test, we said, "The trial court also explained to the jury the limited use to which such evidence was to be used." Although we did not pass upon the substance of the limiting instruction, which was not before us on direct appeal, we expressed our approval of the component of the instruction limiting the use to the proper purposes allowable under N.J.R.E. 404(b). And, in passing upon the propriety of the admission of the other crimes evidence, we commented that "in view of the overwhelming evidence against defendant in [this] case, the probative value of the evidence was not outweighed by its prejudice." Of course, that comment does not dispose of the issue presently before us. However, it serves to corroborate that the panel reviewing this case on direct appeal reached the same conclusion as we reach regarding the overwhelming evidence of defendant's guilt, notwithstanding consideration of the other crimes evidence.
In our overall evaluation of the complete record, we conclude that even if trial and appellate counsel were deficient under the first Strickland prong for not raising this issue, the second prong is not satisfied. In the context of this trial, we do not discern a reasonable probability that had the issue been raised the result would have been different. Stated differently, failure of trial or appellate counsel to have raised this issue does not undermine our confidence in the verdict.
Defendant argues that his trial counsel failed to conduct a thorough investigation in preparation for trial, thus constituting deficient performance. Defendant further argues that but for the deficiency, the outcome of the trial would have been different. On this point, defendant sought an evidentiary hearing in the PCR proceeding. Although the judge initially scheduled such a hearing, the judge determined that it would not be held and decided the issue on the papers. The judge addressed the asserted lack of investigation on the merits, concluding that the investigation was adequate, and that trial counsel's decisions not to reach out to potential witnesses suggested by defendant and not to pursue at trial certain issues suggested by defendant were strategic choices legitimately made, and would not support a claim of ineffective assistance of counsel. The judge also noted that because defendant raised an ineffective assistance claim in his pro se new trial motion, the issue was procedurally barred.
We do not agree with the PCR judge's analysis on this point. Nevertheless, from our review of the record, we are satisfied that defendant did not satisfy the second prong of the Strickland test, and he did not make a sufficient prima facie showing to warrant an evidentiary hearing.
When defendant was first charged, the Office of the Public Defender assigned an attorney, who conducted an initial interview with defendant and made one court appearance with him. The case was then reassigned to a different attorney on March 20, 1995, who continued to represent defendant in the trial court proceedings. The trial began in late May 1996. During the fourteen months leading up to the trial during which trial counsel represented defendant, counsel did little investigation and had limited contact with defendant.
Defendant suggested that counsel contact several witnesses, including defendant's brother in Florida, who defendant claimed could be helpful regarding the allegations of sexual improprieties perpetrated by defendant at his brother's home in Florida. Counsel did not contact defendant's brother. On May 21, 1996, about a week before trial was about to begin, counsel submitted two requests for investigation to the Office of the Public Defender, requesting that an investigator interview Gloria Kieffer, the manager of the Barrington Garden Apartments in Aberdeen, regarding the entry by J.Q. and D.S. into defendant's apartment in September 1994. Counsel requested photographs of the apartment complex and any obstructions to defendant's picture window. An investigator took the requested photographs and drew a sketch of the complex, and interviewed three individuals. Kieffer did not see J.Q. or D.S. enter the apartment. She received calls from two other tenants about an open door at the apartment. The first tenant observed J.Q. leave the apartment and walk to his truck. The other tenant knew the relationship between the boys and defendant, but did not observe the boys enter the apartment.
PCR counsel obtained trial counsel's file. He noted that the file contained the only two investigation requests discussed above, served the same month as trial. The file contained no letters to potential witnesses, no handwritten notes of telephone interviews with potential witnesses, or anything else that would indicate that trial counsel personally spoke to any potential witnesses.
As part of PCR counsel's investigation, an investigator for the Office of the Public Defender spoke to defendant's former Old Bridge landlord on September 28, 2004. That individual stated that defendant failed to pay the rent and damaged the property, as a result of which the landlord filed an eviction complaint and the State brought a criminal charge against defendant in May 1989 for the issuance of a fraudulent check to the landlord. The investigator also spoke with James Szigeti, who lived in the apartment above defendant in the mid-1980s. Szigeti confirmed that defendant later lived in Old Bridge.
Defendant's brother, J.S., provided a certified statement on May 31, 2005. He asserted that defendant slept on the first floor during the 1994 trip to his home in Gainesville, Florida. The children slept in an upstairs bedroom. J.S.'s bedroom was at the top of the landing. He claimed "[t]he stairs were very noisy" and "I probably would have heard if [R.S.] came up the stairs after one o'clock, which is about when I went to sleep." He confirmed that trial counsel never contacted him to discuss the case.
In 1988, defendant was indicted in Middlesex County, charged with sexual offenses against boys not in this indictment. The case went to trial in 1989 and defendant was acquitted. J.Q. and D.S. testified in that trial. They denied that defendant engaged in sexual contact with them and denied that they viewed sexual contact between defendant and the alleged victims in that case. At the trial of this case, defendant urged trial counsel to use that information to impeach J.Q. and D.S. Trial counsel was aware of the prior Middlesex County trial. However, he did not obtain a transcript of that trial and chose as a strategic matter not to bring it up at the current trial.
Defendant bases his request for relief on trial counsel's alleged failure to conduct any meaningful investigation. He cites counsel's failure to speak with potential witnesses, to meet with helpful out-of-state witnesses, and to make more than two requests for investigation. Defendant provided trial counsel with an extensive list of potential witnesses. The record reflects that defendant prodded trial counsel to investigate the role of the New York Police Department and some unhappy former business partners in the alleged fabrications of the boys' stories. And, he sought to contradict the allegations of sexual abuse outside of New Jersey.
The Supreme Court described the appropriate level of scrutiny to apply to trial counsel's investigative efforts in Strickland, supra:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. [466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.]
See also State v. Martini, 160 N.J. 248, 266 (1999); State v. Savage, 120 N.J. 594, 617-18 (1990). As such, it is impermissible to attribute the attorney's course of conduct to a strategic decision until after a full consideration of the attorney's investigative efforts.
When defendant filed his pro se motion for a new trial alleging ineffective assistance of counsel after the jury verdict and before his sentencing, trial counsel filed a responding certification describing and explaining his conduct. He referred to a number of meetings and telephone conversations with defendant to prepare for trial. He insisted he was fully aware of the strengths and weaknesses of defendant's case and set forth strategic reasons for certain trial decisions. He downplayed the failure to research defendant's witness list. He noted that none of the witnesses on the list contacted him to advise that they wished to testify on defendant's behalf, and most of the witnesses were from out of state and "were not material witnesses with respect to the offenses that allegedly occurred in New Jersey." Commenting on strategy, he said that "if defendant had a slue [sic] of witnesses ready to dispute the allegations, the Court may well have permitted more evidence before the jury of out of State conduct, further prejudicing the defendant."
In the PCR proceeding now under review, the PCR court accepted trial counsel's representations regarding the scope of his investigation and his strategic decisions. We do not agree with these conclusions. Strategic decisions require that counsel first apprise himself or herself of the relevance of certain witness testimony prior to making an "educated" decision to withhold the testimony from the jury's consideration. Stewart v. Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2006); United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989); Garcia v. Portuondo, 459 F. Supp. 2d 267, 286 (S.D.N.Y. 2006) (noting counsel's duty "to investigate, not to make do with whatever evidence fell into his lap"). The investigation here fell short of the requisite professional standard. At the very least, a prima facie case was established with respect to Strickland's first prong.
However, from our review of the record, we conclude that defendant failed to satisfy Strickland's second prong because he failed to demonstrate that trial counsel's deficient conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93.
"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial. From our review of the record, defendant has failed to meet that burden here. He relies, for example, on his brother's certification.
However, that certification is of dubious exculpatory value, merely stating that defendant's brother "probably" would have heard if defendant came up the stairs to where the boys were sleeping during the night.
Defendant failed to provide other certifications to demonstrate that there was discoverable evidence prior to trial that would have had the likelihood of successfully rebutting the State's evidence. Rather, the potential witnesses identified by PCR counsel planned to testify about defendant's brief period of residency in Old Bridge and the insufficiency of trial counsel's investigation. We do not find exculpatory relevance in any of this proposed testimony. There is no dispute about the contents of trial counsel's file and the extent of the investigation he conducted. At the anticipated evidentiary hearing, PCR counsel proposed to produce trial counsel and the private investigator from the Office of the Public Defender to testify about the insufficient investigative efforts of trial counsel. There was no necessity for an evidentiary hearing in that regard, because there was no dispute about what trial counsel did and did not do. Further, the proposed PCR testimony to establish that defendant resided in Old Bridge from March 1988 to May 1989 would not alter the probative value of the boys' allegations of sexual assault in Woodbridge, Matawan and Aberdeen between 1986 and 1994.
Accordingly, we conclude that notwithstanding any deficiency by trial counsel in making an inadequate investigation, defendant has failed to demonstrate how a more thorough investigation would have had the likelihood of changing the outcome. And, defendant failed to establish a prima facie showing in this regard, as a result of which no evidentiary hearing was warranted. Thus, because of the failure to satisfy Strickland's second prong, this point provides no basis for relief.
Defendant argues that trial counsel was ineffective for failing to object to the trial court's supplemental jury instruction, which allegedly allowed the jurors to find sexual penetration based upon "rubbing the penis back and forth between the inner thigh." Correspondingly, defendant alleges his appellate counsel was ineffective for failing to raise this issue on appeal as plain error.
Analysis of this issue requires a careful review of the allegations made against defendant and submitted to the jury, the initial jury instructions, the sequence of events leading up to the challenged supplemental instruction, and the verdict returned. Based upon our review of these matters, we conclude that any error in the supplemental charge was not likely to have changed the result of the trial.
Counts one, six, nine, twelve and eighteen charged first-degree aggravated sexual assault by committing an act of "sexual penetration." None of those counts described what constituted the penetration. It is apparent from the evidence and the arguments by counsel to the jury that in each count the State alleged that defendant performed fellatio on one of the boys. Counts six, nine and twelve pertained to D.S. As we have stated, the jury convicted defendant on count twelve, but acquitted him on counts six and nine. The jury also convicted defendant on count one (pertaining to S.F.) and count eighteen (pertaining to J.Q.).
All three of the boys testified that defendant placed his mouth on their penises. Each of the boys also testified to a course of conduct by which defendant would place his erect penis between their legs or buttocks, often moving it back and forth until he ejaculated. However, the State did not allege anal penetration. In the initial charge to the jury, the judge defined the element of sexual penetration to mean, "among other things, and for our purposes it means fellatio by the defendant.
The slightest penetration is sufficient. The definition of fellatio is oral stimulation of the male sex organ."
We refer now to the specific allegations of penetration of D.S. and D.S.'s testimony. Count six charged penetration of D.S. in Woodbridge between October 17, 1985 and May 31, 1989. Count nine charged penetration of D.S. in Matawan and/or Aberdeen between June 1, 1989 and August 31, 1990. Count twelve charged penetration of D.S. in Aberdeen between September 1, 1990 and July 31, 1994. D.S. testified that in Woodbridge, beginning when D.S. was seven or eight years old, defendant would place his penis between D.S.'s legs and move it back and forth until defendant ejaculated. He made no mention of any fellatio during that time. D.S. further testified that after defendant moved to Matawan D.S. began living with defendant and going to school there. He described the same course of sexual conduct perpetrated by defendant. Again, he made no mention of fellatio. Indeed, D.S. was asked directly, "Was there ever any time when he had any contact with you with anything other than his hand or his penis?" D.S. answered, "Not in Matawan." Then, D.S. described the same conduct in Aberdeen. When asked, "Was there any other contact that took place in Aberdeen?," D.S. responded, "One time I can remember he put his mouth on my penis."
After the jury was sent out to deliberate, it requested a readback of portions of D.S.'s testimony. As the judge paraphrased the jurors' question, "You want his testimony regarding sexual contact and penetration regarding incidents." The court reporter then read back to the jury the portions of D.S.'s testimony describing the activity at each of the three locations, as we have summarized in the preceding paragraph. After returning to deliberate further, the jury submitted a question, "What is the definition of penetration?" The judge answered:
Sexual penetration means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the defendant or upon the defendant's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.
The jury also asked, "Does rubbing the penis back and forth between the inner thigh constitute penetration?" The judge responded, "You are the finders of the fact and you have to make that determination. Okay. All right."
This sequence of events and the jury's discriminating verdict, finding defendant guilty of count twelve but not guilty of counts six and nine, persuades us that the probable basis for the jury's question regarding the definition of penetration, and whether it could include rubbing the penis back and forth between the inner thigh, related to D.S.'s testimony and the allegations of three acts of unspecified "sexual penetration" at three different times at three different locations. When given the full statutory definition of sexual penetration, which could include anal intercourse, in which the depth of insertion is not relevant, it is apparent that the jury understood that defendant's rubbing of his penis between D.S.'s thighs in Woodbridge and Matawan did not satisfy the definition and acquitted defendant on those counts. The jury's attentiveness and astuteness prompted its inquiry and guided its findings in a manner fully consistent with the evidence.
Certainly, we agree with defendant that the judge should have given a proper responsive answer to the legal question whether rubbing the penis between the inner thigh constitutes penetration. The simple answer is "no." It would have also been useful and appropriate for the judge to elaborate that the only form of penetration alleged in this case was fellatio. However, we do not deem any irregularity in this regard to have been prejudicial to defendant. Our confidence that defendant was convicted only for acts of fellatio with respect to the counts charging penetration is not undermined by the manner in which the trial judge responded to the jury's inquiries. We do not find a reasonable probability that trial counsel's failure to object and appellate counsel's failure to raise the issue as a matter of plain error would have changed the outcome.
Defendant argues that his trial counsel was ineffective for failing to impeach D.S., J.Q. and S.F. with prior inconsistent statements they made. Defendant relies on the failure of trial counsel to order the transcript of the 1989 Middlesex County trial and to use the testimony from that trial of D.S. and J.Q. about the absence of prior sexual abuse to impeach their credibility in the trial now under review. With respect to S.F., defendant contends his trial counsel was ineffective for failing to point out inconsistencies between S.F.'s statements to the police and grand jury testimony regarding specific sexual acts by defendant.
Trial counsel was well aware of the prior Middlesex County trial and of the substance of the exculpatory testimony given by J.Q. and D.S. Yet, trial counsel did not obtain a transcript of the earlier trial. In our view, the strategic decision to refrain from bringing up at this trial testimony presented at the earlier trial was reasonably made and did not require obtaining the transcript. In Strickland, supra, the Court noted that "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. The PCR court found that failure to impeach J.Q. and D.S. with respect to the prior inconsistent testimony was not unreasonable in light of all of the circumstances. We agree.
Trial counsel had the benefit of the police statements produced by the State in discovery. That information revealed that J.Q. admitted that defendant explained to him the necessity to lie to the jury and to deny any sexual contact. J.Q. said that the close paternal relationship he had with defendant and his feelings of loyalty to defendant drove him to lie under oath. Although D.S. did not admit to lying under oath, he stated to the police that he did not divulge defendant's past actions because he needed to stay at defendant's home in Aberdeen in order to continue in attendance at his school.
Under these circumstances, it was a sensible strategic decision to leave this out of the case. Had the door been opened, the State would have undoubtedly elicited the "real" reason for the prior testimony. The jury would have been given an unfavorable view of defendant's ability to manipulate the jury process and exert undue influence over his youthful victims.
Likewise, with respect to S.F., although there were inconsistencies between his police statement, grand jury testimony, and trial testimony, each of S.F.'s testimonial allegations had been made at some prior time. It was reasonable trial strategy to avoid the nitpicking cross-examination of an emotional young boy over whether particular sexual acts occurred on the first or second night of a particular trip, or whether defendant fondled and placed his mouth on S.F.'s penis, then attempted anal sex, or "only" did the first two of the three alleged acts at a particular time. We find no deficiency in trial counsel's performance on these points.
The remaining points raised by defendant's counsel are (1) that trial counsel was ineffective in failing to rebut the testimony of J.Q. and D.S. about sexual assaults which supposedly occurred at defendant's home in Woodbridge from November 1984 until May 1989, by presenting proof that defendant actually lived in Old Bridge during most of that time, and (2) trial counsel was ineffective in failing to object when defendant was brought to trial during jury selection wearing the same soiled and wrinkled clothing in which he had been arrested. In his supplemental pro se brief, defendant submits three arguments: (1) trial counsel was ineffective in failing to request a jury instruction on the element of territorial jurisdiction; (2) trial counsel was ineffective in failing to impeach D.S. and J.Q. with evidence that defendant had filed criminal charges against them for stealing about $22,000 worth of goods from his apartment after his arrest; and (3) trial counsel was ineffective in failing to present available mitigating evidence at defendant's sentencing.
These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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