August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
LEWIS I. HAGAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Yannotti and Lyons.
The State appeals on leave granted from an order entered on October 16, 2008, granting a petition by defendant Lewis I. Hagan for post-conviction relief (PCR). Upon review of the facts and the applicable law, we affirm.
In late 2003, defendant was in a two year dating relationship with F.B. While the couple were not living together, defendant often spent the night at F.B.'s home. F.B. had three children who also resided with her, ranging in ages from twelve to eighteen-years-old. Defendant testified that he was close to all the children, including F.B.'s youngest daughter, D.B.
Defendant testified during his trial that in the fall of 2003, his relationship with F.B. began to deteriorate. He later testified at his PCR hearing that he was concerned because F.B. was physically abusing D.B., who was thirteen-years-old at the time. Accordingly, he stated during his PCR hearing that on October 8, 2003, he reported the alleged abuse to D.B.'s school principal. During that meeting, the principal informed defendant that D.B. cut class and had problems with authority, so defendant authorized the school to give D.B. detention when necessary. The principal made a record of defendant's report and notified the Division of Youth and Family Services (DYFS), who investigated.
Soon after defendant notified D.B.'s school, between November 1 and November 15, 2003, D.B. claimed defendant began to proposition her for sex and engage her in inappropriate conversations regarding his physical relationship with F.B. She also alleged that defendant placed his hand on her inner thigh. D.B. stated she did not tell her mother about defendant's behavior immediately because she did not think F.B. would believe her.
On November 17, 2003, defendant obtained a temporary domestic violence restraining order against F.B., who filed for a cross-domestic violence restraining order on November 18, 2003. F.B. alleged that defendant had burglarized her home and had made terroristic threats against her.
On December 4, 2003, D.B. informed her mother of defendant's behavior towards her and F.B. took D.B. to police headquarters to report the incident. Detective Donald Reilly interviewed D.B. in the presence of F.B. and then contacted defendant by phone and asked him to come to the police station to be interviewed. Defendant complied. During the course of his interview, defendant admitted having sexual discussions with D.B. but contended they were more in the nature of father-daughter discussions in order to educate her on sexual matters. Detective Reilly placed defendant under arrest.
On January 7, 2004, a Family Part court granted defendant's motion for a permanent restraining order against F.B. and vacated F.B.'s temporary restraining order against defendant.
On December 2, 2004,*fn1 a Middlesex County grand jury returned Indictment No. 04-12-1669, charging defendant with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count one) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). The prosecutor dismissed the charges of terroristic threats and burglary brought by F.B.
Defendant was tried before a jury on December 9 and 10, 2004. During the course of his trial, defendant's counsel, Robert White, did not present any evidence of defendant's child abuse report or DYFS's involvement with the family, though, according to defendant, he informed White of the DYFS referral by letter in May 2004. White also failed to present evidence of the permanent restraining order defendant secured against F.B., except for briefly mentioning it in his summation by stating "[a]lso convenient that this only finally comes up and is brought to the police's attention two days after mom goes to answer and file restraining orders because, obviously, she and Lewis are having problems, that time line is very convenient to me."*fn2 Instead, White based defendant's defense on D.B.'s vague testimony and her lack of credibility. Despite White's advice to the contrary, defendant testified in his own defense.
Defendant was convicted on December 10, 2004, on all counts. After an Adult Diagnostic and Treatment Center (ADTC) determination of repetitiveness and compulsiveness pursuant to N.J.S.A. 2C:47-2, defendant was sentenced on June 3, 2005, to a four-year term of imprisonment at the ADTC on the third-degree endangering the welfare of a child charge. The court merged the fourth-degree criminal sexual contact into the third-degree endangering charge for sentencing purposes.
On January 25, 2006, defendant filed a direct appeal on his conviction, arguing, inter alia, ineffective assistance of trial counsel. We affirmed, finding that "defendant's allegations of ineffective assistance of counsel . . . are better raised as part of a post-conviction relief (PCR) petition. . . ." State v. L.I.H., Docket No.: A-2620-05T4 (App. Div. May 29, 2007) (slip op. at 6), certif. denied, 192 N.J. 479 (2007).
On November 15, 2007, defendant filed a petition for PCR. The court held a hearing on October 16, 2008, where defendant testified that he told White numerous times about the restraining order against F.B. He also testified that he requested by letter that White investigate his DYFS referral because he believed it would show that he was a "responsible parent." Defendant claimed White never answered that or any other letter he sent. Defendant also informed White about Derrick Williams, a potential witness, who claimed to have heard F.B. brag about "setting" defendant up.
Defendant's PCR counsel filed a motion for disclosure of the DYFS referral report in reference to defendant's allegations of F.B.'s abuse. That report confirmed that defendant had in fact reported F.B.'s abuse of D.B. to the school principal and further showed that the principal informed defendant that D.B. had behavioral problems and was "extremely manipulative" and "resent[ed] authority." D.B.'s principal informed defendant that D.B. often cut class, and "flirt[ed] with tutors," and defendant authorized the principal to give D.B. detention when necessary.
When questioned about why he did not investigate the restraining order, White testified that he was concerned that bringing it to light would "open up the door" to the State presenting F.B.'s dismissed burglary and terroristic threat charges to the jury. White conceded, though, that he never got a copy of the restraining order and had assumed "that the Court probably had simply not ruled in either [defendant's or F.B.'s] favors, and never granted against either of them."
White was also questioned as to why he did not investigate the DYFS referral. He testified that he was never aware that defendant had made such a report. When asked whether he simply had not responded to the information because defendant had included it in a letter he did not read, White replied that defendant sent him voluminous correspondence, but he maintained that he always read and responded to the letters. He conceded, however, that he did not respond to each individual letter but would respond "in groups." White further testified that he would not have used the report in defendant's defense because he felt D.B.'s credibility on the stand adequately called her allegations into question.
Regarding his failure to interview Derrick Williams, White stated that he attempted to contact Williams and learned that he was imprisoned on unrelated charges and was currently represented by the Public Defender's Officer. When White asked Williams's attorney if he could be interviewed, Williams's attorney refused, and White did not take any further steps to speak with him.
White testified that defendant was difficult to interview and was obsessed with his deteriorated relationship with F.B. He admitted to not returning several of defendant's calls and letters, but asserted that defendant was an exceedingly demanding client. He explained that he based defendant's defense on D.B.'s not being "particularly credible" and he endeavored to shift the focus of the trial away from defendant and onto D.B. and her testimony. White believed that defendant undermined this strategy when he testified and described D.B.'s sexual history and his past sexual conversations with her. White opined that this caused defendant's conviction. He did not consider his failure to present F.B.'s possible motive of revenge for defendant's reports of abuse and for the restraining order against her to be material to the case.
The PCR judge found defendant to be credible. He noted that White could not remember many details about the case, but he found White credible in terms of what he did recall about his representation of defendant. The PCR judge implicitly accepted defendant's testimony that he informed White about the DYFS referral by letter. The judge found that White should have presented the jury with the substance and chronology of defendant's restraining order against F.B., his child abuse report against F.B. made to D.B.'s principal, and D.B.'s allegations. He stated:
So in other words [the alleged abuse was] directly right after the October 7th. So you have October 7th when the defendant complains to the school. DYFS gets involved, and then the alleged sexual encounter took place, less than a month later or between November 1st and 15th . . . . [S]o there's a lot of information that, you know, could have been used to defend this defendant at trial.
Regarding White's failure to interview Derrick Williams, the PCR judge found that White should not have been deterred by Williams's attorney. He stated: if his attorney on the case that he was in jail for, said he can't talk to him, well something could have done about that in terms of coming to court addressing that because he had no Fifth Amendment privilege as to this case. This case had nothing to do with him. So those efforts . . . should have been made.
Based on these findings, the PCR judge found, by a preponderance of the evidence, that there was a reasonable probability that the result of defendant's case would have been different had White interviewed Williams, investigated the restraining order defendant had against F.B., and defendant's report of child abuse by F.B. of D.B. The PCR judge entered an order vacating defendant's judgment of conviction and ordered a new trial. The State now appeals on leave granted and sets forth the following argument for our consideration:
TRIAL COUNSEL WAS SADDLED WITH AN INEFFECTIVE CLIENT IN THIS CASE.
"Post-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). Here, the PCR judge found that White provided defendant with ineffective assistance by applying the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 692 (1984) and adopted by the Supreme Court of this State in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. Savage, 120 N.J. 594, 612-13 (1990).
In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93; see also Savage, supra, 120 N.J. at 613. To assist in this determination, the Court outlined a two-part standard based upon grounds of performance and prejudice. To satisfy this standard, a defendant carries the following burdens: 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 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 [court's holding] . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
In analyzing the "deficient performance" prong, "the test is whether counsel's conduct fell below an objective standard of reasonableness." Savage, supra, 120 N.J. at 614. A defendant, therefore, must demonstrate that the attorney's actions "were beyond 'the wide range of professionally competent assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Reviewing courts should note that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Ibid.
Moreover, reviewing courts must be mindful that their inquiry is whether counsel's performance was "reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 694. "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchallengeable.'" Savage, supra, 120 N.J. at 617-18 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed. 2d at 695).
With regard to the satisfaction of the second prong, that is, that defendant has been prejudiced by the actions of his counsel, the Strickland Court held that there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52.
The reviewing court's principal focus "must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699. The Court, however, also added that when the errors of counsel are so substantial that "no amount of showing of want of prejudice could cure it," it is unnecessary for a defendant to demonstrate prejudice. U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 668 (1984). As a matter of state law, our Supreme Court has articulated that, "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Savage, supra, 120 N.J. at 615.
"An appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record." State v. Arthur, 184 N.J. 307, 320 (2005). We "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quotations omitted). A trial court's findings "should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." Ibid. (quotations omitted).
In this case, defendant testified that he informed White numerous times that he had a permanent restraining order against F.B., and the PCR judge found defendant to be credible. Reasonable investigation on White's part would have revealed that, while F.B. secured a temporary restraining order against defendant, the court vacated that temporary order and granted defendant a permanent order against her. This occurred approximately two weeks before F.B. took D.B. to the police station to report defendant's alleged abuse.
Defendant also testified at his PCR hearing that he informed White about his report of F.B.'s physical abuse of D.B. to D.B.'s school and DYFS's subsequent involvement with the family. The PCR judge also implicitly accepted this testimony as true. This report occurred shortly before D.B. reported defendant's sexual advances to the police. Moreover, White failed to interview a witness who defendant believed had information that would further call D.B.'s credibility into question and would support his claim that the charges were fabricated by D.B. and her mother to retaliate against defendant. When that witness's counsel refused to allow White to interview him, White did not pursue it further.
White had a "professional obligation to interview prospective witnesses and conduct other appropriate pretrial investigation a sufficient time before trial to formulate a defense strategy that affords the accused the best possible opportunity to secure an acquittal." State v. Arthur, supra, 184 N.J. at 332. When told about the restraining order, White assumed that it was in the context of a squabble between a couple having relationship issues and that no permanent order had been entered. While White denied that defendant ever informed him of the DYFS referral, the PCR judge found defendant to be credible when he testified that he sent White a letter revealing that information. The judge found that information in that referral record, coupled with the timing of defendant's report, would have been material to defendant's defense. An analysis of the time line of events leading up to defendant's arrest and conviction supports the argument that a reasonable person would consider that D.B.'s accusations were motivated by F.B.'s desire to get revenge on defendant.
Also, the fact that the DYFS referral reveals that D.B. was "manipulative" and resented authority, considered in light of defendant authorizing the school to give her detention, could have further called her credibility into question. White argues that he did not employ this trial strategy because he wished to portray defendant as a man who had a healthy and functional relationship with his girlfriend and her children. He asserts that bringing DYFS investigations and restraining orders to light would not have furthered that image. While we normally do not second guess trial counsel's strategic decisions, "[c]courtroom tactical decisions made by an attorney who has not engaged in minimal trial preparation often are distorted, rushed, wrongheaded - and at the expense of the client." State v. Arthur, supra, 184 N.J. at 333 (J., Albin, dissenting). We recognize there was more than "minimal trial preparation" in this case but the principle is the same where an adequate investigation would lead to a coherent and strong defense. Because White did not adequately investigate the abuse reports and restraining orders and failed to interview witnesses, his trial strategy is not entitled to the high level of deference typically afforded to counsel.
The PCR judge found that White could have raised reasonable doubt as to defendant's guilt by bringing the chronology of events to the jury's attention. The judge also expressed concern that White did not make a meaningful effort to interview Williams, the potential defense witness, who may have raised doubt as to D.B.'s credibility. We find the PCR judge's finding of ineffective assistance of counsel is supported by substantial credible evidence and, therefore, affirm the PCR judge's finding that there was a "reasonable probability that these deficiencies materially contributed to defendant's conviction" and his constitutional right to counsel was, therefore, violated. Savage, supra, 120 N.J. at 615.