November 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT GARON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-04-995.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Carchman and Sabatino.
Following a jury trial, defendant, Robert Garon was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. At sentencing, the trial judge denied the State's motion for an extended term and sentenced defendant on the aggravated sexual assault charge to a term of twenty years with ten years without parole eligibility. The sentences on the other counts were to run concurrent. In addition, the judge credited defendant for time served, imposed the statutory fines and penalties and required community supervision for life.
Defendant appealed, and we affirmed. The Supreme Court denied certification. State v. Garon, 167 N.J. 636 (2001). Thereafter, in November 2002, defendant filed a pro se petition for post-conviction relief (PCR). Despite assignment to the Office of Public Defender's PCR unit one month later, a verified PCR petition was not filed until 2006. The Law Division judge denied a hearing and denied defendant relief.
Defendant appeals, and we affirm.
We briefly set forth the relevant facts. In January 1996, Defendant, then thirty-two years old, resided with D.B. and her six-year-old daughter, T.B., in Atco. T.B. "has had multiple behavioral problems including a diagnosis of attention deficit disorder and . . . oppositional defiant behavior," resulting in school behavioral problems and necessitating medical care and medication.
In July 1996, the Division of Youth and Family Service (DYFS) and Waterford Township Police Department responded to allegations of a sexual assault emanating from a drawing T.B. had made in school which depicted a nude man with a penis and pubic hair. T.B. related that "she touched the penis and pubic hair  and identified this person as Bob."
On July 25, 1996, at approximately 9:25 p.m., Sergeant Allison Turner of the Camden County Prosecutor's Office conducted a videotaped interview of T.B. During the extensive interview, T.B. stated that the drawing depicted defendant. She set forth a litany of sexually related incidents including that she and defendant would play "naked games" or have "naked parties" at home. T.B. mentioned that she doesn't want her mother to know about the "naked parties," that "[her mother will] get really upset" because "she doesn't want [them] all naked" since "it's not good to do."
Investigator Willie Mahan, also of the Prosecutor's Office, questioned defendant based on the information he received from T.B.'s interview. After reading to the defendant his Miranda*fn1 rights, which defendant waived, Mahan conducted an initial interview followed by a taped statement, conducted in the presence of Waterford Township Police Detective Thomas Kalik.
After again receiving his Miranda rights, defendant admitted to graphic, repeated and inappropriate behavior with T.B. such as taking a shower together, laying with a naked T.B. on the couch while in his underclothes with an erection and playing "doctor" with T.B. Defendant also admitted that T.B. had seen him watching pornographic material on TV, had seen his penis several times and had seen defendant and T.B.'s mother engaging in sexual intercourse.
At the conclusion of the interview, defendant was not charged, but T.B. was removed by DYFS from her home and placed with her grandmother. The next day, Dr. Katherine Coffman examined T.B. at the request of DYFS. She found no physical evidence of sexual victimization, and T.B. denied she had been abused, but T.B. was "very upset, very clinging [sic] to her mother" and when separated, "literally tore the waiting room apart, threw things on the floor [and] [w]as very angry." That conduct stopped and T.B., "very abruptly . . . became extremely affectionate" and "she would come over, touch [her], hug [her], and was distracted."
In early September 1996, D.B. reported that T.B. had told her mother that she had engaged in oral sex with defendant. This allegation prompted Sergeant Turner from the Prosecutor's Office to conduct a second videotaped interview of T.B. on September 13, 1996.
During the interview, T.B. initially denied saying anything to her mother but eventually admitted to playing a "naked game" with defendant and that defendant made her touch his penis while watching a pornographic video where a woman was performing fellatio on a man. She also stated that defendant made her perform oral sex on him and told her not to tell D.B.
Based on the information received during the interview, a complaint and warrant were issued, and defendant was arrested on September 17, 1996. Defendant was interviewed the next day and during the interview, defendant stated that in July 1996, T.B. had come inside the house, gave him a hug and a kiss, and sat next to him on the sofa. At the time, defendant was watching an adult movie on television. Defendant stated that there was a fellatio scene involving a man and a woman on the screen, and T.B. had asked him whether her mother ever performed that kind of act. Defendant then claimed that he changed the channel to something more appropriate and "adamantly" denied the allegations. He did admit, however, that during his residence with T.B., he suffered from genital warts caused by the Human Papilloma Virus (HPV), which he has had for at least eight months.
Defendant did not testify at trial and following the jury verdict and sentencing, defendant filed an appeal. On the direct appeal, defendant raised the following issues:
POINT I DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE WAS SEVERELY PREJUDICED BY COMMENTS MADE IN THE PROSECUTOR'S SUMMATION (not raised below).
POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR AN ENTRY OF A JUDGMENT OF ACQUITTAL WHEN THE STATE FAILED TO PRODUCE EVIDENCE SUFFICIENT TO WARRANT A CONVICTION.
POINT III DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A TRIAL BY AN IMPARTIAL JURY (not raised below).
POINT IV THE WEIGHT OF THE EVIDENCE WAS AGAINST THE JURY'S FINDING DEFENDANT GUILTY OF THE THREE COUNTS OF THE INDICTMENT AND, THEREFORE, HIS CONVICTIONS SHOULD BE REVERSED (not raised below).
POINT V DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (not raised below).
POINT VI THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR (not raised below).
POINT VII THE SENTENCE IMPOSED BY THE TRIAL COURT WAS MANIFESTLY IMPROPER (not raised below).
In addition to the points noted above, on direct appeal, defendant raised a number of specific issues addressed to his claim of ineffective assistance of counsel. He expressly noted that counsel had failed to object to the State's opening, had improperly counseled defendant regarding his Miranda rights and waiver thereof, failed to object to D.B. being present in the courtroom during T.B.'s testimony, improperly stipulated that the transcripts of the video tapes were consistent with the tapes, failed to move for a new trial, failed to request a mistrial or curative charge after allegedly inappropriate comments from a juror, made inappropriate motion references in front of the jury, failed to properly cross-examine the victim or object to the prosecutor's improper questions to the victim, improperly advised defendant as to his not testifying and failed to present mitigating factors on behalf of defendant at sentencing. In sum, on his direct appeal, defendant presented a litany of errors on the part of his trial counsel, which were presented to us for consideration.
In our unpublished opinion, we affirmed the conviction, concluding that defendant's arguments were without merit. R. 2:11-3(e)(2); State v. Garon, No. A-5885-97 (App. Div. Nov. 17, 2000), certif. denied, 167 N.J. 636 (2001).
In his ensuing pro se petition for post-conviction relief, defendant raised the following issues:
9. Petitioner's trial counsel rendered constitutionally ineffective assistance in the following respects:
(a) In violation of Petitioner's federal and state constitutional rights, trial counsel failed to challenge prejudicial comments made by the prosecutor during summation, denying Petitioner his fundamental right to have a jury fairly evaluate the evidence.
(b) In violation of Petitioner's federal and state constitutional rights, the trial court erred in failing to grant defendant's motion for an entry of judgment of acquittal after the state failed to produce evidence sufficient to warrant a conviction.
(c) In violation of Petitioner's federal and state constitutional rights, Petitioner was denied his Sixth Amendment rights to a trial by an impartial jury.
(d) In violation of Petitioner's federal and state constitutional rights, the weight of the evidence was against the jury's finding of guilt in the three count indictment, and therefore, his convictions should be reversed.
(e) In violation of Petitioner's federal and state constitutional rights, and contrary to New Jersey Law, the Grand Jury Indictments were not signed by the foreperson or the prosecutor, thus rendering the Indictments invalid.
(f) In violation of Petitioner's federal and state constitutional rights, the cumulative effect of the errors by trial counsel rendered the trial unfair. [Paragraphs one through eight omitted.]
When counsel was assigned, an amended petition was filed restating the issues and the following issues were raised:
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO COMPLETE THE MIRANDA HEARING REGARDING THE ADMISSIBILITY OF DEFENDANT'S STATEMENT.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO REQUEST THAT DEFENDANT PARTICIPATE IN SIDEBAR CONFERENCES DURING JURY SELECTION.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL FAILED TO CHALLENGE OBJECTIONABLE STATEMENTS MADE BY THE PROSECUTOR DURING HER OPENING AND DURING HER SUMMATION.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO ADEQUATELY CROSS-EXAMINE THE WITNESS T.B. REGARDING HER VAGUE AND CONTRADICTORY STATEMENTS AGAINST DEFENDANT.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL UNFAIRLY DENIED DEFENDANT THE RIGHT TO TESTIFY DURING TRIAL BY INACCURATELY ASSURING HIM THE TRIAL WOULD BE WON WITHOUT HIS TESTIMONY.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO ARGUE TO THE JURY IN CLOSING THAT T.B'S STATEMENTS REGARDING FELLATIO WERE THE PRODUCT OF SUGGESTIONS MADE TO HER BY HER MOTHER AND BY THE INVESTIGATORS WHO INTERVIEWED HER.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING IN THAT COUNSEL FAILED TO PRESENT APPLICABLE MITIGATING FACTORS TO THE COURT AT THE TIME OF SENTENCING.
DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
CUMULATIVE ERROR IN THIS MATTER BROUGHT ABOUT AN UNFAIR AND UNREALIABLE RESOLUTION OF THIS MATTER.
In his decision on the petition, Judge McNeill, who was also the trial judge, concluded that of the eight substantive issues raised by defendant in the petition, six had been presented to us on direct appeal, had been adjudicated and were now barred. R. 3:22-5. See also State v. McQuaid, 147 N.J. 464, 483 (1997) (noting that "a defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits"); State v. Pagan, 378 N.J. Super. 549, 557 (App. Div. 2005) (barring defendant from "relitigating" an issue on PCR when it was raised on appeal and decided on the merits). Of the two remaining issues, both concerned the failure of defendant to be at side bar during the voir dire for jury selection.
In his analysis, Judge McNeill carefully reviewed the standards adopted by the Supreme Court of New Jersey in State v. W.A., 184 N.J. 45 (2005); see also State v. Dishon, 297 N.J. Super. 254, 267 (App. Div. 1997) (holding that a defendant's right to be present during voir dire is a fundamental right and it "is essential because it is only by defendant's presence during jury impaneling that he can assist his attorney in the selection of an impartial jury"). The judge noted:
In State v. W.A., 184 N.J. 45 (2005), the New Jersey Supreme Court used the framework created by the Appellate Division's in Dishon to precisely define a defendant's right of presence at voir dire sidebar conferences. In W.A., the Court said that "under Rule 3:16, a defendant who requests it ordinarily has a right of presence at voir dire sidebar conferences." W.A., 184 N.J. at 48. However, even where a defendant has requested present at sidebar and been excluded, automatic reversal of a conviction is not warranted. Id. at 63. For instance, "[w]hen a prospective juror is disqualified by the court for cause, any benefit defendant could possibly claim from his presence at that excuse for cause hearing would have been but a shadow and purely speculative." Ibid. (quoting People v. Roman, 665 N.E.2d 1050, 1055 (N.Y. 1996)). The same applies where the prosecution uses a peremptory challenge to remove a potential juror. Ibid.
The judge then identified and analyzed each of the twenty-three side bar conferences, and concluded that: even if the defendant had been excluded from participating in voir dire sidebar conferences after asserting his right of presence, the outcome would be no different because the nineteen jurors excused from jury service following voir dire sidebar conferences were all excused for cause.
Therefore, this Court finds the defendant's claim that he was improperly excluded from sidebar conferences to be without merit because "[i]nvocation of the . . . right to be present [at voir dire sidebar conferences] will be rejected . . . when the claim that a defendant's presence would have had an impact on the outcome of the trial is speculative, or the violation . . . is de minimis . . . [or] when, either because of the nature of the particular proceeding or its ultimate outcome, the defendant's presence was useless, or the benefits but a shadow." [W.A., supra, 184 N.J. at 64 (quoting Roman, supra, 665 N.E.2d at 1054 (N.Y. 1996).]
Ultimately, the judge denied defendant relief on his petition.
On appeal, defendant now raises the following issues:
POINT I: THE AMENDED PETITION FOR POST- CONVICTION RELIEF WAS ESSENTIALLY A REHASH OF ISSUES PREVIOUSLY RAISED ON APPEAL AND EFFECTIVELY LEFT ESSENTIAL ISSUES, PROPERLY JUSTIFYING POST CONVICTION REVIEW, UNEXPLORED (not raised below).
POINT II: TRIAL COUNSEL'S FAILURES TO INVESTIGATE AND TO OBTAIN RECORDS AND DOCUMENTS AFFORDED DEFENDANT INEFFECTIVE ASSISTANCE OF COUNSEL (not raised below).
POINT III: GIVEN THE NATURE OF THE ISSUES REFLECTED IN THE RECORD, AN EVIDENTIARY HEARING WOULD BE APPROPRIATE.
POINT IV: APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN HIS INADEQUATE TREATMENT OF WAIVER OF MIRANDA OBJECTIONS.
POINT V: THE CUMULATIVE IMPACT OF ERRORS AND OR OMISSIONS OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DENIED DEFENDANT A FAIR AND RELIABLE RESOLUTION OF THE CHARGES AGAINST HIM.
POINT VI: GIVEN THE NATURE OF THE CHARGES OF WHICH DEFENDANT WAS CONVICTED, THE COURT DOUBLE-COUNTED THE STATUS OF THE VICTIM AND IMPROPERLY RELIED ON THE CLASSIFIED STATUS OF THE VICTIM AS AN AGGRAVATING FACTOR.
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; The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). 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 (1963), cert. denied, 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1965), 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).
In assessing the first prong, a court must determine whether counsel's conduct fell "outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (internal citations ommitted). In considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of professional assistance . . . ." Ibid. Defendant must demonstrate that counsel's action did not amount to "sound trial strategy." Ibid. As the Supreme Court of New Jersey observed: an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. [Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]
Even if defendant could satisfy this exacting standard, we are not convinced that the asserted deficiencies would have changed the result. Defendant was confronted not only with T.B.'s statement but his own statement that did not admit the specific offenses charged here but certainly admitted to inappropriate conduct with T.B. that validated her statements. We do not find that any of the asserted errors are such as to "undermine the court's confidence in the jury's verdict or the result reached." Ibid. (quoting Castagna, supra, 187 N.J. at 315) (citations omitted). Applying these standards, we conclude that as to Points I, III, V and VI, they are without merit and require no further discussion. R. 2:11-3(e)(2).
We add the following comments as to Point II. Defendant raises for the first time on this appeal that his trial counsel failed to investigate and to obtain records and documents and that these issues should properly have been brought before the trial court for adjudication. State v. Preciose, 129 N.J. 451, 462 (1992).
Our concern here is that many of the identified discovery issues were before the jury through defendant's own statement. But what is more important, there are no affidavits or certifications to support essentially bare assertions that are not part of the record nor directly germane to the issues in this matter. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Aside from our prior observation that virtually all of the PCR issues had been adjudicated on the direct appeal, we find no merit in the issues raised in Point II.
Finally, defendant argues that State v. A.G.D., 178 N.J. 56 (2003) and State v. Nyahmmer, 396 N.J. Super. 72 (App.Div. 2007), certif. granted, 193 N.J. 586 (2008), require a finding that the waiver of his Miranda rights was not knowing or voluntary. In State v. A.G.D., supra, the Court held that defendant had not voluntarily waived his Miranda rights because investigators did not advise defendant that an arrest warrant had been issued against him for suspicion of sexual assault.
Id. at 68. In State v. Nyahmmer, supra, we held that defendant had not voluntarily waived his Miranda rights because investigators did not advise defendant that he was a suspect of sexual assault. Id. at 84.
We disagree with defendant. The Miranda issue was raised on direct appeal and adjudicated. Admittedly, appellate counsel's brief was limited; nevertheless the issue was raised.
There is a more important distinction, however. Unlike defendants in A.G.D and Nyahmmer, defendant here was advised that he was there for questioning due to allegations of sexual abuse. Investigator Mahan indicated at trial that "from the very beginning" defendant was aware of the allegations that were made regarding T.B. Defendant voluntarily waived his Miranda rights.
This was a serious case, professionally tried by both the prosecutor and defense counsel. Ultimately, the proofs were more than sufficient to support the conviction. We are satisfied, as was the panel on direct appeal and the trial and PCR judge, that counsel was not ineffective and defendant's rights were protected.