October 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MASSEY A/K/A ANTHONY STEWART, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-03-0425.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Payne and Waugh.
Defendant Anthony Massey appeals from the denial of his petition for post-conviction relief. We affirm in part and remand in part.
Massey was charged in Hudson County with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); forth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); fourth-degree child abuse, N.J.S.A. 9:6-1(e) and 9:6-3 (count nine); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten); third-degree possession of a weapon, a knife with a sharpened edge, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); and first degree armed robbery, N.J.S.A. 2C:15-1 (count twelve).
Following a pretrial hearing, the trial judge denied Massey's motion to suppress the statements he gave to the investigating police officers. The case then went to trial before a jury. The trial judge dismissed the child abuse and endangering charges in counts nine and ten at the conclusion of the evidence. The jury found Massey not guilty of the aggravated assault charge contained in count eight, but convicted him on all other counts.
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact, and criminal sexual contact convictions from counts three, four, and five into the first-degree aggravated sexual assault conviction from count one, and sentenced Massey to a twenty-year term of imprisonment, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year period of imprisonment, with a NERA eighty-five percent parole disqualifier, on the second-degree armed burglary conviction from count two, and a concurrent five-year term, with a two and one-half year parole disqualifier, on the third-degree criminal restraint conviction from count seven.
The trial judge merged the terroristic threats and weapon convictions from counts six and eleven into the first-degree armed robbery conviction from count twelve, and sentenced Massey to a fifteen-year term of imprisonment, with a NERA eighty-five percent parole disqualifier, to run consecutive to the other sentences. Consequently, the aggregate term of imprisonment was thirty-five years with an eighty-five percent term of parole ineligibility. Applicable mandatory fines, penalties, and a period of parole supervision were also imposed.
Massey appealed his conviction and we affirmed. State v. Massey, No. A-5709-01T4 (App. Div. Oct. 15, 2003). The Supreme Court denied Massey's petition for certification. State v. Massey, 179 N.J. 310 (2004).
Massey filed his petition for post-conviction relief (PCR) in March 2004. He was represented by designated counsel, and also filed a pro se brief and appendix in support of his petition. Oral argument was held on October 19, 2006. The PCR judge denied Massey's request for an evidentiary hearing and dismissed the petition for post-conviction relief in an oral decision delivered following the argument. An appropriate order was entered on October 23, 2006. This appeal followed.
Massey's conviction arises out of an incident that took place on July 22, 1998, in the victim's third-floor apartment in North Bergen. J.L., the victim, resided in the apartment with her two-year old son, B.L. They went to sleep at approximately 11:30 p.m., with B.L. sleeping beside J.L. in her bed. At approximately 2:00 a.m., J.L. was awakened by "a yell." When she opened her eyes, a man, later identified by her as Massey, was next to her holding a metal spatula and telling her not to yell. Massey "started putting his hand under [J.L.'s] pajama, and . . . said he wanted money, $2,000." Massey assaulted her with the spatula. J.L. testified that Massey then "started rubbing [her] all over."
The incident awoke B.L., who started to yell. Massey shouted, "Fuck you, baby." He then slapped B.L., knocking him off the bed. At that point, J.L. told Massey, "Do whatever you want with me, but please don't do anything to my son." J.L. testified that she did not resist.
Massey "started inserting his finger into" her vagina and anus. After finishing his assault of J.L., Massey again demanded money. When J.L. turned on the light to look for money, she saw Massey's face. Massey was known to her because he had performed some work in her apartment when she first moved in.
Massey threw her against the wall, and pulled her back onto the bed. J.L. testified that he penetrated her three times, forced his penis into her mouth during the continued assault, and took thirty or forty dollars. Massey finally left her apartment at approximately 3:40 a.m.
Massey testified at trial. Although he had denied any involvement in the incident when arrested, his trial testimony was that he had consensual sexual relations with J.L., whom, as noted, he had met when he was working in her apartment prior to the incident. He claimed that J.L. was concerned that her former husband, who sometimes lived with her, would find out about their sexual activity and rushed him out of the apartment. He claimed that he saw a Hispanic male in the area when he left the apartment building.
In support of his appeal, Massey filed a pro se letter brief in addition to the brief and appendix filed by his designated counsel. Massey's designated counsel raises the following issues:
POINT I - THE DEFENDANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING IN THAT HE MADE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL ENTERED INTO A STIPULATION THAT UNDULY PREJUDICED THE DEFENDANT AND DEPRIVED HIM OF THE RIGHT TO A FAIR TRIAL.
POINT I(A) - THE DEFENDANT SHOWED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FOR THE DEFENDANT ENTERED INTO A STIPULATION REGARDING MEDICAL RECORDS OF THE ALLEGED VICTIM, DESPITE THE DEFENDANT'S WISHES TO THE CONTRARY, AND TRIAL COUNSEL FOR THE DEFENDANT SHOWED SURPRISE WHEN THE STATE USED THE STIPULATION IN ITS CLOSING ARGUMENT.
POINT I(B) - THE PCR HEARING COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING WHERE COUNSEL FOR THE DEFENDANT FAILED TO INTERVIEW A WITNESS WHO HAD KNOWLEDGE THAT THE VICTIM'S EX-HSUBAND WAS LIVING IN THE APARTMENT, WHICH SUPPORTED DEFENDANT'S THEORY IN THE CASE.
POINT II - THE INTERESTS OF JUSTICE MANDATE A REMAND FOR A FULL EVIDENTIARY HEARING ON ALL ISSUES RAISED IN THE POST-CONVICTION RELIEF MOTION.
POINT III - THE DEFENDANT SHOULD HAVE BEEN GRANTED POST-CONVICTION RELIEF ON HIS SENTENCE UNDER STATE V. NATALE.
In his pro se letter brief, Massey raises the following additional issues:
POINT I - PLAIN ERROR EXISTED DURING THE TRIAL THAT MANDATE[S] REVIEW UNDER R. 3:22-4(a.), R. 3:22-4(b.), R. 3:22-4(c.), R. 2:10-2.
POINT II - APPELLATE COUNSEL WAS INEFFECTIVE FOR IGNORING PLAIN ERROR ISSUES RAISED THAT OFFERED BEST CHANCE FOR RELIEF.
POINT III - POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED DUE TO PLAIN ERROR AND INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
Through his designated counsel, Massey argues that the PCR judge should have held an evidentiary hearing with respect to his allegations of ineffective assistance of counsel, relying on State v. Preciose, 129 N.J. 451, 462 (1992) ("Thus, trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.").
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (2003), certif. denied, 179 N.J. 372 (2004), we noted that "[i]t is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial."
In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. den., 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
The question becomes whether Massey articulated a prima facie case of ineffective assistance of counsel that would warrant a hearing. Massey's argument is premised on: (1) trial counsel's decision to enter into a stipulation concerning the laboratory and medical findings; and (2) trial counsel's failure to interview and call a witness who would have supported Massey's defense that the sexual conduct was consensual.
At the end of the State's case, the assistant prosecutor read the following stipulation to the jury:
First, "It is stipulated that the body fluid samples collected by Dr. Wawrzyniak from [J.L.] were the same samples used by Edward La Rue to conduct the DNA test.
"It is further stipulated that the blood used in the DNA test for comparison purposes was collected from Anthony Massey."
Secondly, "The emergency room medical records of [B.L.], age 2, contains the following language.
"'Skin, back and abdomen, ecchymosis -large superficial "bruise", '" -- bruise, in quotes -- "'(around the buttocks and lower back), pinching-like marks around the stomach and surrounding area, multiple body contusions.'" Ecchymosis is defined as a passage of blood from ruptured blood vessel[s into the surrounding] subcutaneous tissue marked by a purplish discoloration of the skin."
Defense counsel was apparently surprised when the assistant prosecutor referred to the stipulation during his summation. He unsuccessfully objected to the use of the stipulation during summation.
In addressing the issue of the stipulation, the PCR judge found the following:
Defendant next argues Trial Counsel was ineffective for entering into the Stipulation in this case regarding certain DNA evidence and to the hospital records of the victim's son, B.L.
Insofar as the [Defendant] conceded sexual intercourse between the victim and the Defendant; stipulating to scientific corroborative proof of a fact that the Defendant admitted, cannot be said to have prejudiced the defense. In fact, to contest that fact before the jury and then have the Defendant testify that he did, in fact, have intercourse with the victim, may very well have undermined Counsel's credibility with the jury.
As to the medical records of B.L., the two year old son of the victim, it is not difficult to understand why Counsel would prefer a cold, single sheet of paper to replace live testimony from medical personnel regarding fresh injuries to a two year old child. It is not as if the testimony would not have come in absent the Stipulation. It was coming in.
So Counsel had a choice, live testimony from objective witnesses with no interest in the case as to objective, visible findings that would consume at a minimum half an hour with a jury focused exclusively upon injuries to a two year old child attributed to his client, or the alternative would have been a 15 second reading of one paragraph detailing those injuries.
By stipulating to this evidence, Counsel attempted to minimize the jury's focus upon a fact that could cause the jury to seriously question the consensual sex defense. In short, the jury could ask if the sex was consensual, how did the two year old wind up with all those injuries? That clearly wasn't something Counsel wanted indelibly etched in the jurors minds.
Absent some evidence that could explain those injuries consistent with the defense, cross-examination would not have helped the defense. One thing must be borne in mind in this regard. The [Defendant] tried this case on credibility. It was therefore clearly the Defendant's interest to focus the jury on the victim's credibility as manifested through her oral testimony.
While people can lie, objective facts such as the multiple injuries to the two year old child cannot. Those injuries were strongly corroborative of the victim's testimony and Counsel's Stipulation minimized that evidence before the jury. It was, given the defense, simply the smart thing to do. It was not ineffective when viewed in the context of the trial and the defenses urged.
Even if it could be considered ineffective, it didn't prejudice the Defendant, because in the absence of the Stipulation, the evidence was admissible and the State was prepared to introduce it.
We agree with the PCR judge's analysis on this issue. Massey's admission to consensual sexual conduct with J.L. mooted any issue related to the bodily fluids or DNA testing. Had the stipulation with respect to the child's medical records not been made, there would undoubtedly have been extensive testimony from one or more medical witnesses. Trial counsel's strategic and tactical decisions will not ordinarily provide the basis for a finding of ineffective assistance of counsel, even if they are miscalculations. State v. Castagna, 187 N.J. 293, 314-15 (2006). Here, trial counsel could easily have decided that it was tactically more advantageous to the defense to give up the opportunity to confront and cross-exam the hospital witnesses in order to avoid having their more detailed, and potentially more prejudicial, testimony presented to the jury.
Massey also criticizes the failure of trial counsel to interview, and call as a witness, Martin Laderman, the apartment property manager, whom Massey contends would have testified that J.L.'s former husband did sometimes live in her apartment. According to Massey, he had wanted to call Laderman as a witness at trial, but trial counsel was not willing to do so.
The record does not reflect the reasons for trial counsel's refusal to call Laderman, although it has been suggested that Laderman had no personal knowledge and that his proposed testimony would have been excluded as hearsay. In addition, the record does not reflect whether trial counsel actually interviewed Laderman. At the PCR hearing, designated counsel argued that an evidentiary hearing was necessary to determine why trial counsel would not call the witness, whether he actually interviewed Laderman, and whether he sought to ascertain whether Laderman could identify others who could testify from personal knowledge.
In his decision, the PCR judge correctly noted the potential importance of such testimony, which would have bolstered Massey's credibility with respect to the consensual nature of the conduct and undercut the victim's contrary testimony. Clearly, testimony from a neutral witness that the victim's former husband did sometimes live in the apartment could have affected the jury's view of the relative credibility of the victim and Massey. However, the PCR judge rejected the Laderman issue as proof of ineffective assistance of counsel, finding that, because Laderman's assertions were apparently not based on personal knowledge, but rather on statements from other tenants, they would clearly have been hearsay. N.J.R.E. 801(c).
While we agree Laderman's testimony would not itself have been admissible if based solely on hearsay, we believe that the PCR judge should have held an evidentiary hearing to determine whether Massey's trial counsel interviewed Laderman to determine whether he had personal knowledge or could have identified potential witnesses with personal knowledge. We note that one of J.L.'s neighbor testified at trial, on behalf of the defense, that J.L. had once come to her apartment with a man and asked to borrow a screwdriver. The neighbor testified that she asked J.L. if the man was her husband and that J.L. responded that he was. The neighbor also testified that, in response to her inquiry, J.L. told her that Laderman was aware that the man was living in her apartment. On cross-examination, the neighbor identified Massey as the man involved, but testified at one point that she was "not too sure right now, 'cause [Massey] looks a little chubby." Neither the victim nor Laderman testified to such an incident involving Laderman and the neighbor.
With respect to the other issues raised by Massey and designated counsel, having reviewed the record and considered the points raised, we conclude that they are without merit and affirm as to them essentially for the reasons set forth in the PCR judge's oral opinion. R. 2:11-3(e)(2).
Consequently, we affirm the decisions of the PCR judge on all issues except ineffective assistance of trial counsel as to the failure to call or interview Laderman and the failure to explore other potential witnesses. As to that issue, we remand for an evidentiary hearing.
Affirmed in part and remanded for further proceedings consistent with this opinion.
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