February 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS IACOVONE, IV, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-10-00812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Fisher and King.
In this appeal from the denial of a petition for post-conviction relief, we reject defendants' many contentions that he was denied the effective assistance of counsel and affirm.
The testimony adduced at trial revealed that S.L.M., a fifteen-year old girl, had moved with her family to North Carolina a few years earlier but periodically returned to New Jersey. At the time of the incident in question, S.L.M. was visiting with her aunt, who lived across the street from defendant, who was then twenty-years old.
On the evening of June 2, 2003, defendant invited S.L.M. and his younger sister, Kim, to his grandparents' house. Kim and a friend of defendant's left by 10:00 p.m.; S.L.M. remained with defendant. They drank vodka out of the bottle, and played a drinking game. At the start of the evening, defendant gave S.L.M. a pill that "would help with the hangover"; he gave her a second pill later in the evening. S.L.M. testified that the pills "[m]ight have been hydrocodone."
S.L.M. "blacked out" and when she woke, she was "forced to give oral sex" to defendant. She blacked out again and awoke to find defendant having vaginal intercourse with her. She told him to stop, and that he was hurting her, and blacked out again.
Defendant's uncle later arrived. S.L.M. awoke to defendant "yelling" for her "to put her clothes on." She blacked out again, but woke in defendant's van as he was having sexual intercourse with her. Once again, she told defendant to stop, blacked out, and later awoke as she was being forced to engage in oral sex. At the end of the evening, defendant told S.L.M. "not to tell anybody," and walked her home.
The next morning, S.L.M. went to see Kim and told her what had happened, then went to the police and to a local hospital. The nurse who examined S.L.M. testified that her condition was "consistent with sexual penetration." S.L.M.'s parents arrived on June 4, 2003 and accompanied her to the police station, where she gave a statement.
A forensic scientist employed by the New Jersey State Police tested S.L.M.'s undergarments and confirmed the presence of blood and seminal material. DNA taken from the undergarments matched DNA in a buccal swab obtained from defendant. And S.L.M.'s urine sample tested positive for opiates and marijuana.
Defendant was arrested on June 4, 2003. After being advised of his Miranda*fn1 rights, defendant gave a statement acknowledging that he had consensual sexual relations with S.L.M.
Defendant was charged in an indictment with one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1) and (4), and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
Following a three-day trial, he was convicted on all counts and sentenced to a twelve-year prison term, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing that the verdict was against the weight of the evidence and that he had not received the effective assistance of counsel guaranteed by the Sixth Amendment. By way of an unpublished opinion, we rejected defendant's weight-of-the-evidence argument; we did not consider the ineffective-assistance-of-counsel arguments on their merits but instead relegated them to consideration by way of post-conviction relief proceedings. State v. Iacovone, No. A-3402-05T1 (App. Div. November 2, 2006).
Defendant filed a timely petition for post-conviction relief, alleging that his trial counsel (a) "failed to articulate to the jury the discrepancies in the complaining witness's testimony, thereby insufficiently attacking the [S]tate's case and unfairly prejudicing [defendant]"; (b) "failed to properly cross-examine forensic nurse Eileen Caraker so as to indicate to the jury the possibility that results of S.L.M.'s sexual assault kit could have been caused by consensual sex"; (c) "failed to call [defendant] to the stand, depriving the jury of the opportunity to hear his testimony and failing to balance the testimony of [the] complaining witness"; (d) "failed to explore the effect of hydrocodone on alcohol intake, failing to argue to the jury that [defendant] did not intend to drug S.L.M. for the purpose of a sexual assault"; and (e) "failed to call Raymond Myers as a witness at trial, thereby failing to provide the jury with exculpatory testimony on [defendant's] behalf." The PCR judge refused defendant's request for an evidentiary hearing and rejected all defendant's arguments for the reasons set forth in an oral decision.
Defendant has appealed the denial of post-conviction relief. The brief filed by his counsel presents the following arguments:
I. IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.
II. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
III. THE DENIAL OF DEFENDANT'S APPEAL WAS DUE TO THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
Defendant also filed a pro se brief in which he presents the following arguments, which we have renumbered:
IV. COUNSEL ON DIRECT APPEAL AND LATER ON POST CONVICTION RELIEF WAS INEFFECTIVE.
V. TRIAL COUNSEL WAS INEFFECTIVE DENYING THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL AND WAS CLEARLY PREJUDICED BY COUNSEL'S FAILURE TO PURSUE THE FOLLOWING[:]
A. TRIAL COUNSEL FAILED TO PRESENT AND PURSUE A VIABLE DEFENSE ON BEHALF OF THE DEFENDANT UNDER 2C:2-8, INTOXICATION TO REFUTE THE EXISTENCE OF A PARTICULAR STATE OF MIND AS WOULD AFFORD A DEFENSE TO A CHARGE OF CRIMINAL FINALITY.
B. COUNSEL'S FAILURE TO [SUBPOENA] WITNESS RAYMOND MYERS IN THE ATTEMPT TO CORROBORATE DEFENDANT'S STATEMENT THAT THE [COMPLAINING WITNESS] WAS A WILLING PARTICIPANT IN THE ACTIVITIES THAT LED TO THE INCIDENT.
C. TRIAL COUNSEL FAILED TO REQUEST INCLUSION IN THE TRIAL COMPOSITION OF JURY INSTRUCTIONS TO HAVE INCLUDED THE FALSE IN ONE, FALSE IN ALL INSTRUCTIONS.
VI. THE PROSECUTOR'S COMMENTS DURING SUMMATION W[ERE] INFLAMMATORY AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
VII. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY BY FAILING TO INCLUDE THE ELEMENT OF MENTAL INCAPACITY.
VIII. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). Indeed, we note that Points VI, VII and VIII either were or could have been raised on direct appeal and are thus not cognizable in this appeal, see R. 3:22-4, although we have also reviewed them in the context of defendant's claim of the deprivation of the effective assistance of counsel, and found them to be without substance. We add only the following brief comments regarding some of defendant's complaints about the performance of trial counsel.
When a defendant claims a deprivation of the effective assistance of counsel, the following test applies:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]
This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 59 (1987).
In defining the level of competence required by the Sixth Amendment, it is understood that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). In addition, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694, and to rebut that strong presumption, "a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy,'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). Even if counsel made strategy miscalculations or trial mistakes, "if our adversary system is to function at all effectively, these may not be permitted to impair the binding nature of the proceedings, except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of fair trial." State v. Buonadonna, 122 N.J. 22, 42 (1991) (citing State v. Dennis, 43 N.J. 418, 428 (1964)).
Defendant chiefly argues that his trial counsel failed to adequately cross-examine S.L.M. or present to the jury an adequate argument regarding the discrepancies in her versions of what occurred, that trial counsel failed to cast in a better light the fact that defendant gave hydrocodone to S.L.M., and that trial counsel should have called Raymond Myers to testify. We agree with the PCR judge that there was no merit in these arguments.
First, the record demonstrates that defense counsel cross-examined S.L.M. at length, revealing inconsistencies in the versions she told the police, a nurse and the prosecutor. In addition, the summation of defense counsel reveals that after recognizing that defendant had acknowledged he had sexual relations with S.L.M. and had given her hydrocodone, counsel more than adequately attempted to persuade the jury that the inconsistencies in S.L.M.'s versions suggested she was not truthful and had consented to her sexual activities that evening. The record clearly demonstrates that defendant failed to sustain the first prong of the Strickland test in this regard.
Second, defendant argues that trial counsel did not adequately cross-examine the State's expert regarding the effect of hydrocodone. He argues that counsel should have attempted to assert through cross-examination the legitimacy of defendant's providing hydrocodone to S.L.M. as a preventative measure against a hangover, thus negating the State's suggestion that hydrocodone was provided by defendant as the means for accomplishing the charged sexual assault. Considering that defendant acknowledged providing S.L.M. with that medication, together with an abundance of evidence as to S.L.M.'s consumption of alcohol, we agree with the PCR judge that the lack of testimony regarding the alleged beneficial use of this medication to combat hangovers did not generate a legitimate doubt about the fairness of the trial.
Third, defendant argues that defense counsel should have called Raymond Myers to the witness stand, arguing that had he been called, Myers would have testified that S.L.M. smoked marijuana with him on an earlier occasion and then expressed a willingness to engage in sexual relations with him. Although we agree with the PCR judge that such testimony was likely inadmissible, the fact that defendant did not submit an affidavit or certification from Myers indicating the content of his proposed testimony is fatal to this argument. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).