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State v. D.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.R., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-02-0387.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2008

Before Judges Reisner, Sapp-Peterson, and Alvarez.

Defendant, D.R., appeals from a November 3, 2006 order denying his petition for post-conviction relief (PCR). All of defendant's contentions but one, that trial counsel had a conflict of interest, were initially rejected by the PCR judge without an evidentiary hearing. Following an evidentiary hearing on the alleged conflict of interest, the application was denied. For the reasons that follow, we affirm.

On November 20, 2002, defendant was found guilty by a Monmouth County jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The victim was seven-year-old E.A., the niece of defendant's fiancée, E.N. Defendant had been convicted the prior year in Ocean County of similar charges as a result of his sexual abuse of E.N.'s daughter. On February 28, 2003, defendant was sentenced to an aggregate term of seventeen years in state prison, which was to be served consecutive to the Ocean County sentence. The Monmouth County convictions were affirmed on direct appeal. State v. D.R., No. A-5027-02 (App. Div. May 18, 2004). Certification was denied on July 12, 2004. State v. D.R., 181 N.J. 285 (2004).

The PCR judge who considered the matter in its entirety ordered that an evidentiary hearing be conducted on the conflict of interest issue, which was actually heard by a second judge. On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT

POINT II

THE PCR COURT ERRED IN DENYING THE PCR MOTION BECAUSE THERE WAS A CONFLICT OF INTEREST BETWEEN [DEFENSE COUNSEL] AND THE DEFENDANT

POINT III

THE PCR COURT ERRED WHEN IT FAILED TO HOLD THAT COUNSEL WAS INEFFECTIVE AS HE FAILED TO OBJECT TO THE COURT'S INQUIRY INTO THE COMPETENCE OF THE CHILD WITNESS IN FRONT OF THE JURY

POINT IV

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO QUESTIONING OF THE VICTIM WHICH CLEARLY BOLSTERED HER TESTIMONY

POINT V

COUNSEL WAS INEFFECTIVE BY ALLOWING THE STATE TO INTRODUCE TESTIMONY CONCERNING THE CORNERHOUSE METHOD WHICH IMPROPERLY BOLSTERED THE OFFICER'S TESTIMONY AND WHICH WAS INADMISSIBLE

POINT VI

COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE CUMULATIVE EFFECT OF TESTIMONY OF THE VICTIM'S TAPED STATEMENT AND THE PLAYING OF THE TAPED STATEMENT, WHICH WAS INADMISSIBLE AS A PRIOR CONSISTENT STATEMENT

POINT VII

TRIAL COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO ENSURE THAT THE DEFENDANT UNDERSTOOD THE COURT'S RULING TO PRECLUDE ADMISSION OF THE DEFENDANT'S PRIOR CONVICTION

POINT VIII

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE OF THE CUMULATIVE ERRORS BY COUNSEL

POINT IX

DEFENDANT'S APPELLATE COUNSEL WAS INEFFECTIVE

POINT X

DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING THESE CLAIMS AS A MANIFEST INJUSTICE HAS BEEN COMMITTED AGAINST HIM AND HE CAN ONLY VINDICATE THESE CLAIMS THROUGH A POST CONVICTION RELIEF PROCEEDING

The following facts were developed at the evidentiary hearing. Defendant's trial attorney was retained pre-indictment by defendant's family and by E.N. to defend against both the Monmouth and Ocean County cases. A pre-indictment retainer agreement was prepared for signature by defendant, various members of his family, E.N., and trial counsel's firm. Only trial counsel and E.N. signed the document. It specified that should the matter proceed to indictment, a new retainer agreement would be drawn. Although defendant's family and E.N. were identified as clients on the pre-indictment agreement, at the evidentiary hearing counsel explained that, obviously, they were only guaranteeing payment of counsel fees. His office had required that family members sign the retainer agreement because defendant was in default of bail in two counties. E.N., according to trial counsel, never paid any money toward his services.

When the subsequent post-indictment retainer agreements were signed, they were executed only by members of defendant's family and defendant, not by E.N. E.N. had no input regarding trial strategy, plea negotiations, or trial witnesses, and never exerted any influence over trial counsel. Her contact with trial counsel was limited to approximately three phone calls and an office visit when the allegations were first made. All communication with E.N. ceased pre-indictment when, within weeks of trial counsel's only meeting with E.N., defendant's family informed him that E.N. had become convinced that defendant was guilty. Although E.N. did not testify in this case, trial counsel cross-examined her in the Ocean County case, where she appeared as a witness for the State.

At defendant's trial, the court conducted a competency hearing of nine-year-old E.A. in the presence of the jury, without objection from counsel. The judge posed brief questions to the child as to whether she could distinguish between the truth and a lie, questioned her as to her understanding of the oath, and then directed that she be sworn. The judge made no findings as to E.A.'s competency on the record. After E.A. was sworn, the State proceeded to question her as to her ability to distinguish between the truth and a lie, as well as preliminary matters, such as her familiarity with the town in which she lived, the names of family members, and her favorite subject at school.

One of the State's witnesses at trial was Detective Charles R. Wright of the Sex Crimes Child Abuse Unit of the Monmouth County Prosecutor's Office, whose videotaped interview of E.A. was shown to the jury. Wright explained that when interviewing child victims, he uses the "Cornerhouse Method," which takes into account the "different cognitive abilities at different ages of children." It also accounts for language differences and racial differences, and stresses the importance of "building a rapport with the child to lessen the trauma or anxieties of having to talk to a stranger about something that's pretty scary to them." Trial counsel did not object to this testimony.

After Wright's testimony, E.A.'s videotaped statement was played to the jury. E.A.'s mother also testified. At the close of the State's case, out of the presence of the jury, defense counsel moved to exclude any reference to defendant's Ocean County conviction involving E.N.'s daughter should defendant decide to testify. The State conceded that the information could not be disclosed to the jury because the conviction was under appeal. The trial judge accordingly ruled that should defendant testify, no mention of the prior conviction would be made. Ultimately, defendant did not testify.

i.

To successfully argue that trial counsel has not provided the level of assistance guaranteed by the Sixth Amendment, a defendant "must show that counsel's performance was deficient" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Review of counsel's trial performance must be "highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In order to show that counsel's performance was deficient, a defendant must establish that "counsel made errors so serious that counsel was not functioning as the'counsel' guaranteed by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The defendant must then show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

ii.

Defendant reiterates on appeal that E.N.'s signature on the retainer agreement, her initial meeting with counsel, and the three phone calls created an irremediable conflict of interest. In reviewing the PCR court's decision on this issue, we must defer to the PCR court's factual findings if supported by "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). We consider the PCR court's legal conclusions on a de novo basis. Ibid. The question that we must answer is "whether the findings could reasonably have been reached on sufficient or substantial credible evidence in the record, considering the proof as a whole." State v. Murray, 345 N.J. Super. 158, 171 (App. Div. 2001), certif. denied, 172 N.J. 179 (2002).

Attorneys are obviously required to provide to their clients "undivided loyalty and representation that is'untrammeled and unimpaired' by conflicting interests." State v. Norman, 151 N.J. 5, 23 (1997) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)). Not every potential conflict of interest, however, deprives a defendant of effective assistance of counsel. Murray, supra, 345 N.J. Super. at 170. In cases that do not present a per se conflict of interest, the potential conflict "must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." State v. Cottle, 194 N.J. 449, 467-68 (2008) (quoting Norman, supra, 151 N.J. at 25).

On appeal, defendant relies principally upon State v. Loyal, 164 N.J. 418 (2000). In Loyal, a mistrial was declared after it came to light that defense counsel had previously represented a significant State witness on drug charges. Id. at 425-26. Here, however, no actual representation of E.N. occurred, and she was not a witness in this case.

As explained in Loyal, the determination of whether an attorney's responsibility to a client is compromised by the attorney's relationship with a former client is made from the perspective of "a reasonable and informed citizen." Id. at 439-40. The single pre-indictment meeting in which E.N. expressed confidence in defendant's innocence, and the three follow-up phone calls for information, do not make E.N. a potential witness; nor did they make her trial counsel's client. E.N. had no impact on defendant's representation. There was no likelihood of prejudice nor appearance of impropriety. In this case, a reasonable and informed citizen would conclude that no conflict existed. We consider the PCR judge's factual findings to be amply supported by the record, and his legal conclusions to be unassailable.

As an aside, defendant raised the same claim in his PCR petition in the Ocean County case, in which E.N. actually testified. We found that claim to be so lacking in merit as to not even warrant discussion in a written opinion pursuant to Rule 2:11-3(e)(2). State v. D.R., No. A-5112-05 (App. Div. October 17, 2007) (slip op. at 7), certif. denied, 194 N.J. 445 (2008).

iii.

Defendant asserts that the trial court erred by conducting the competency hearing in the presence of the jury, and that counsel was ineffective because he did not object to this procedure. Again, we disagree. There was no impropriety in questioning the child in the presence of the jury. As stated in State v. Simmons, 98 N.J. Super. 430, 434 (App. Div.), aff'd, 52 N.J. 538 (1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed. 2d 241 (1969), a preliminary inquiry as to the competency of a witness "may be conducted in or out of the presence of the jury in the discretion of the court."

In any event, defendant is procedurally barred from raising this claim on PCR because he did not raise it in his direct appeal. R. 3:22-4. PCR is not a substitute for direct appeal.

R. 3:22-3. This contention, which did not require proofs outside the trial record, was eminently suited for prior consideration. See State v. Swint, 328 N.J. Super. 236, 262 (App. Div.), certif. denied, 165 N.J. 492 (2000).

In like fashion, defendant's claim that the State's initial questioning of E.A. as to preliminary matters improperly bolstered her credibility, is barred by Rule 3:22-4. This issue could have been readily addressed on the trial record on direct appeal. Furthermore, the questioning by the State was nothing more than a permissible strategy to introduce the child to the jury and to make the witness more comfortable.

As a result, trial counsel's failure to object to the judge establishing the child's competency in the presence of the jury, and to the State's questioning of the child, was not ineffective assistance of counsel. Failure to make a non-meritorious objection is not ineffective assistance. Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed. 2d 502 (1994).

iv.

The propriety of Wright's testimony regarding the Cornerhouse interview method was also an issue ripe for consideration on direct appeal. Accordingly, this point is barred by Rule 3:22-4. The expert's testimony did nothing more than give the jury a preliminary understanding of what they were about to hear. In no way did it suggest that the child's testimony was truthful. Trial counsel's lack of objection was therefore not ineffective assistance of counsel. v. Trial counsel successfully moved to preclude the State from making any reference to defendant's Ocean County conviction in the event that he were to testify. The State readily acknowledged that it could not do so because the conviction was under appeal. Defendant was in the courtroom when his attorney raised the issue, when it was discussed, and when it was decided by the judge in plain language. Consequently, defendant's PCR argument that trial counsel was ineffective by failing to "ensure that defendant understood the court's ruling" is so lacking in merit as to not warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

vi.

Defendant asserts that the PCR judge should have afforded him an evidentiary hearing on all of the issues, not just as to the conflict of interest question. As we do not agree that the claims established a prima facie case, no error was committed by the first PCR judge who decided the remaining issues solely on oral argument and written submissions. Absent a prima facie case, no evidentiary hearing is required. See State v. Murray, 162 N.J. 240, 250 (2000); State v. Preciose, 129 N.J. 451, 462 (1992); Pressler, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2009).

vii.

As we find none of defendant's assertions of error to be meritorious, we do not agree that counsel's overall performance was ineffective as a result of cumulative errors. Defense counsel's performance cannot be fairly characterized as deficient in any respect. Similarly, we cannot find that appellate counsel was ineffective for his or her purported failure to present any of these alleged errors on direct appeal.

viii.

Lastly, defendant argues that he should not be procedurally barred from raising the claimed errors because a "manifest injustice" would result from allowing his conviction to stand.

Because we find no errors, no manifest injustice results from the application of PCR rules of preclusion against him.

Affirmed.

20081216

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