December 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN D. SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-01-0064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and Sabatino.
Defendant Kevin D. Smith was convicted after a March 2001 jury trial of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and a related disorderly persons offense. He appeals, on various grounds, the Law Division's order of May 18, 2004, denying his petition for post-conviction relief ("PCR"). We affirm the order in most respects, but remand to the Law Division to consider defendant's claims for relief solely relating to the State's trial proofs concerning a replica handgun seized by the police from the shared residence of defendant and the victim.
We have previously detailed the evidence at trial in our unpublished opinion affirming defendant's conviction on direct appeal. See State v. Kevin D. Smith, No. A-1533-01T4 (App. Div. June 4, 2003), certif. denied, 178 N.J. 30 (2003). Briefly stated, the sexual assault arose out of a long-term dating relationship between defendant and the victim, B.K., which began in the early 1990s. Although their intimate relationship had ended by the fall of 1998, defendant continued to reside with B.K. in her townhouse. Meanwhile, B.K. had become romantically involved with another man. B.K. told defendant in November 1998 about her new boyfriend, and she rejected defendant's entreaties to reconsider. She requested defendant to move out, but he was unable to do so immediately because he lacked a job and another place to live.
On November 15, 1998, B.K. returned to her townhouse from dinner. Defendant accosted her and pulled her upstairs to her bedroom. According to B.K.'s testimony, defendant then penetrated her anally with his fingers. B.K. broke free and ran downstairs. Defendant followed B.K. downstairs, and placed what appeared to be a handgun to the back of her head. After she screamed and told him to leave, defendant put the gun to his own head and threatened to pull the trigger. At that point, a policeman arrived in a squad car, having been alerted to the situation by a neighbor who had heard B.K.'s screams. The patrolman arrested defendant.
Defendant was subsequently charged in a single-count indictment with second-degree sexual assault. He was also separately charged with a disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3(a)(2). A related drug paraphernalia charge was dismissed by the court.
After a four-day jury trial, defendant was convicted of the sole count in the indictment. The trial judge separately found defendant guilty of the disorderly persons offense. Defendant was sentenced to eight years of imprisonment on the sexual assault, subject to an 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. A six-month concurrent prison term was imposed for the disorderly persons offense.
Defendant filed a direct appeal of his conviction, in which he raised the following arguments:
THE ADMISSION OF DEFENDANT'S OTHER CRIMES OR WRONGDOINGS CONSTITUTES PLAIN ERROR. (NOT RAISED BELOW).
THE OMISSION OF A LIMITING INSTRUCTION AS TO THE OTHER CRIMES OR WRONGDOINGS CONSTITUES PLAIN ERROR. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY NOT HAVING CONDUCTED AN IN CAMERA REVIEW OF THE ALLEGED VICTIM'S PSYCHIATRIC RECORDS; THEREFORE, THIS MATTER MUST BE REMANDED FOR SUCH A REVIEW SO AS TO DETRMINE IF THE RELEASE OF THE RECORDS MIGHT HAVE AFFECTED THE TRIAL'S OUTCOME.
DEFENDANT'S SENTENCE MUST BE MODIFIED BECAUSE DETERRENCE WAS RECOGNIZED ERRONEOUSLY AS AN AGGRAVATING FACTOR. (NOT RAISED BELOW).
As noted, we rejected all of these arguments in a per curiam opinion in 2003. Ibid. The Supreme Court subsequently denied certification. Ibid.
In February 2004, defendant filed a handwritten PCR petition in the Law Division. In his pro se submission, defendant claimed that the court had committed numerous errors during the course of the trial. He also claimed that his trial attorney and his counsel on direct appeal had been ineffective in various respects.
One of the arguments raised by defendant in his PCR application concerned the proofs that were admitted at trial relating to the gun that was seized from the residence. The gun was not operable, but rather a replica model of a chrome nine-millimeter handgun. B.K. had purchased the gun with her credit card, allegedly as a gift for defendant. The replica was not moved into evidence at trial, as it had been inadvertently destroyed some time after it had been seized by the police. Instead, the State presented a black-and-white photograph of the gun. There also was testimony about the gun elicited from B.K., including her contention that defendant had pointed the gun at her in the living room after defendant had sexually assaulted her upstairs. Defendant contended that these proofs concerning the gun were unduly prejudicial and that his trial counsel had been ineffective in her handling of the gun-related issues.
After defendant was assigned counsel for his PCR application, the matter was referred to the same judge who had presided over his criminal trial. Following oral argument, the judge denied the PCR application without conducting an evidentiary hearing.
In particular, the PCR judge determined that defendant's counsel had not been constitutionally ineffective. In his oral ruling, the judge specifically addressed a litany of areas on which he found defendant's trial attorney had provided adequate representation, including: (1) her "opening of the door" to testimony regarding prior acts of domestic violence between defendant and B.K.; (2) her failure to cross-examine B.K. about her medication and alcohol usage; (3) her failure to retain an expert witness to comment on the side effects of alcohol upon B.K.'s medication; (4) her failure to question B.K. about buying defendant a round-trip ticket to New Hampshire, rather than a one-way ticket, before the incident; and (5) her failure to elicit testimony from defendant in a chronological fashion. The PCR judge's opinion did not, however, specifically address the issues of undue prejudice and ineffectiveness concerning the replica handgun.
Consistent with his oral ruling, on May 18, 2007, the PCR judge issued an order denying the PCR petition in all respects. Defendant then filed the present appeal, raising the following points:
THE COURT ERRED IN NOT ALLOWING THE DEFENDANT AN EVIDENTIARY HEARING AND IN DENYING HIS PCR APPLICATION
IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESS[E]S SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING
IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE TRIAL ATTORNEY NOT TO OBJECT TO ANY EVIDENCE RELATING TO THE REPLICA HANDGUN WHICH RESULTED IN A PRIMA FACIE CLAIM POINT IV
IT WAS ERROR ON THE PART OF THE COURT TO ALLOW EVIDENCE OF THE REPLICA HANDGUN BECAUSE IT WAS UNRELATED TO THE SEXUAL ASSAULT AND WAS THEREBY PREJUDICIAL TO THE DEFENDANT
We now consider these contentions.
The central thrust of defendant's PCR application is that his former counsel have all been constitutionally ineffective in defending his interests. Under the Sixth Amendment of the United States Constitution, a person accused of a crime is guaranteed the effective assistance of an attorney in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). To establish a deprivation of this constitutional right, a convicted defendant must establish a prima facie case 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, 8 L.Ed. 2d at 693. The principles of Strickland have been adopted in our State. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice to a defendant from his or her counsel's performance is rarely presumed. Id. at 61. A defendant raising an ineffectiveness claim must instead demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 688 n.26 (1984). 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.
Moreover, complaints that are "'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)). As our Supreme Court reaffirmed very recently, "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." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006) (citations, internal quotation marks and editing marks omitted).
In this regard, "[t]he 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." Ibid. "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 guarantees of a fair trial." Ibid. (quoting Castagna, supra, 187 N.J. at 314-15).
Bearing in mind these standards, we are satisfied that the Law Division properly rejected defendant's PCR claims that do not relate to the replica handgun proofs. We are further satisfied that an evidentiary hearing on these discrete claims of ineffectiveness was not necessary, because defendant failed to make a prima facie showing of a constitutional deprivation. State v. Preciose, 129 N.J. 451, 462 (1992) (requiring a prima facie showing of counsel's deficient performance to necessitate an evidentiary hearing).
First, with respect to the domestic violence proofs elicited by defendant's trial counsel, we concur with the trial judge that this "opening of the door" was not deficient performance. Rather, it was a reasonable attempt by counsel to impeach the victim's credibility by highlighting discrepancies in her narrative of the events and their relationship. Counsel's questioning revealed that B.K. had been using drugs and alcohol when she previously had reported domestic violence by defendant when they were living together in Baltimore. This concession tied into defendant's theme that B.K. was likewise intoxicated or impaired when she reported the alleged sexual assault. Counsel's questioning also suggested that B.K. had lied before about defendant using a weapon in the domestic violence matter, thereby undermining the credibility of her present contentions about having a gun pointed at her.
Second, as to trial counsel's failure to attack B.K.'s use of alcohol and medication in cross-examining B.K., we note that the prosecutor had already queried B.K. on direct examination about her use of drugs and alcohol. Moreover, defense counsel elicited from defendant himself testimony about those same matters, and the effects upon B.K. that he had observed. Since this information had already been developed before the jury twice, it was not necessary to repeat it through the victim's cross-examination. We also share the trial judge's view that defense counsel's "hard cross-examination of the victim [about her use of drugs and alcohol] would have garnered more sympathy [for her]."
Third, we agree with the PCR judge that defendant's trial counsel was not deficient in failing to retain an expert witness to comment on the effects of alcohol on a person such as B.K. who was taking anti-depressant medication. Even if such expert testimony could have been procured, it would have not rebutted the specific observations of Dr. Edward Gosselin, the emergency room physician who attended to B.K., who testified that B.K. was "alert, oriented [as to person, place and time]... not clinically intoxicated, cooperative and [not in] acute distress." As contrasted with Dr. Gosselin's first-hand observations of B.K., the testimony of a defense expert regarding her mental status, by comparison, would have been only hypothetical. Trial counsel cannot be reasonably faulted for eschewing such an expert opinion.
Fourth, we reject defendant's claim that his trial counsel should have guided his direct examination in a more chronological fashion. We are satisfied that counsel competently elicited detailed testimony from her client on the key points in dispute, including defendant's own version of what transpired at the townhouse, as well as his specific rejoinders to factual assertions that B.K. had made in her own testimony.
With respect to defendant's claims that his respective attorneys on direct appeal and on the PCR petition were ineffective, we are equally satisfied that his criticisms are without merit, except potentially for the issues concerning the replica gun. In particular, we reject defendant's assertion that his PCR attorney was ineffective because he failed to muster affidavits or certifications from witnesses to support his petition. Defendant has not shown that such sworn statements were indeed obtainable, from whom they would have been obtained and how they would have materially negated the integrity of his conviction.
We likewise reject defendant's claim that his PCR counsel should have retained an expert in criminal defense practice, in an attempt to second-guess the legal representation afforded by his trial attorney. The PCR judge was perfectly capable of assessing the deficiency or non-deficiency of trial counsel's performance without such expert opinion. See State v. Moore, 273 N.J. Super. 118, 127 (App. Div. 1994) (noting the limited utility of criminal law experts on issues that are within "the ken" of a trial judge).
Moreover, PCR counsel was not constitutionally deficient in failing to have defendant verify the amended petition he submitted on his client's behalf, see Rule 3:22-8, given that defendant had verified his original pro se petition. We discern no actual prejudice flowing to defendant from the lack of a second verification, particularly since the PCR judge's denial of defendant's petition had nothing to do with any shortcomings of verification.
Accordingly, we affirm the trial court's denial of PCR relief on each of these issues, which are subsumed within Points I and II of defendant's brief on this appeal. However, for the reasons we now explain, we cannot, on the present record, reach the same conclusion as to the replica handgun issues delineated in Points III and IV of defendant's brief.
Defendant's arguments concerning the replica handgun proofs are both substantive and procedural. Substantively, defendant argues that he was unfairly prejudiced by the State's presentation of proofs concerning the replica handgun, prejudice that was allegedly compounded when the original gun was lost before trial. Procedurally, defendant argues that his counsel's handling of the gun issue was deficient in numerous respects, including her failure to object to the State's evidence*fn1 and her failure to investigate the gun issues adequately.
We bear in mind that defendant was not charged in this case with a weapons offense. By the victim's account, the gun was not pointed at her until after the sexual assault had already transpired upstairs. The gun was not used to overcome B.K. in her bedroom. Defendant therefore argues that the gun was not part of the criminal transaction, and the references to it before the jury should have been excluded. Defendant also emphasizes that the gun was purchased by B.K., and she therefore should have realized that it was incapable of being fired. Consequently, in defendant's view, there was little or no probative value in the testimony about the gun.
Defendant further maintains that any probative value of the gun proofs was far exceeded by the prejudicial impact upon the jurors in learning that defendant had brandished a firearm. See N.J.R.E. 403. The prosecutor potentially amplified that prejudice by referring at length to the gun in her summation, and asserting that defendant's pointing of the gun "terrified" B.K. He also argues that the destruction of the actual gun unfairly prevented his counsel from physically demonstrating to the jury that the replica weapon could not be fired.
The State argues that the gun proofs were properly admitted as "res gestae" evidence of a continuous criminal transaction. See, e.g., State v. Martini, 131 N.J. 176, 242, (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 113 L.Ed. 2d 137 (1995). It contends that defendant's brandishing of the gun downstairs, moments after the sexual assault upstairs, provides an important context to the entire criminal event, and that such proof was warranted "to paint a complete picture" for the jury. Ibid.
The Law Division judge did not address these gun-related issues in his ruling on the PCR application. Additionally, we note that since the time of the PCR motion and the parties' briefing on this appeal, our Supreme Court has issued two opinions, in which at least two justices have questioned the continued vitality of the res gestae doctrine. See, e.g., State v. Kemp, 195 N.J. 136, 163 (2008) (Albin, J., concurring) (likening res gestae to a "moldy cardboard box in the basement, whose contents no longer have any utility but which we nevertheless fear discarding"); State v. Barden, 195 N.J. 375, 345-46 (2008) (reserving for future consideration the jurisprudential need to maintain the res gestae doctrine); see also State v. Long, 173 N.J. 138, 166-72 (2007) (reflecting concerns about the doctrine, noting that it has been discredited by some scholars) (Poritz, C.J., concurring and Stein, J., concurring in part and dissenting in part).
Rather than decide these unresolved issues concerning the gun proofs on the present record, we remand these issues to the Law Division for that court's initial consideration, particularly in light of the Supreme Court's supervening decisions in Kemp and Barden. Furthermore, even if the res gestae doctrine does not or should not be applied to the gun proofs in this case, we invite counsel and the trial court to explore other alternative theories of admissibility, including but not limited to the basic relevance principles under N.J.R.E. 401 and "other crimes" proof under N.J.R.E. 404(b).*fn2 At the same time, the Law Division should also examine the issues of alleged ineffectiveness of counsel associated with the gun evidence.*fn3 We leave to the trial court's sound discretion the manner in which it completes the remand proceeding, and do not prescribe whether an evidentiary hearing will or will not be necessary.
The denial of defendant's PCR application is affirmed in part, and remanded in part, solely for consideration of the issues concerning the replica handgun. We do not retain jurisdiction.