October 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 98-06-0322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing and Messano.
Defendant A.J. appeals from the denial of his petition for post-conviction relief (PCR). His sole argument on appeal is that the PCR judge erred in rejecting his claim of ineffective assistance of counsel at trial. We have considered defendant's contention in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
Tried by a jury, defendant was convicted of two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(5). After appropriate mergers, the trial judge sentenced defendant to an aggregate twenty-six year term of imprisonment, with a thirteen-year period of parole ineligibility. We affirmed his conviction and sentence on direct appeal. State v. A.J., No. A-1216-01 (App. Div. December 6, 2002). Defendant's petition for certification to the Supreme Court was denied. State v. A.J., 177 N.J. 222 (2003).
We provide the necessary factual background by quoting from our earlier opinion.
At trial the State contended that from June 1996 through August 1997, defendant, then thirty-three years old, engaged in a pattern of criminal sexual conduct with his step-daughters, thirteen-year old Y.A. and sixteen-year old N.G.
At all times pertinent to the charges defendant was married to C.J. In June 1996, defendant and C.J. along with her daughters Y.A. and N.G. as well as her six year-old son, M.J., moved to a one-family house in Plainfield. C.J. worked full time during the day and occasionally on weekends as a court reporter in New York. Defendant was unemployed and was at home with the children. According to Y.A., defendant began treating her better than the other children, giving her money to buy things. At the same time[,] defendant began sexually abusing Y.A. including sexual penetration and having her perform fellatio on him.
N.G. testified that she and . . . defendant did not get along well. She said that defendant favored Y.A., often giving her money and wanting to "keep her around him." N.G. said that defendant would often send her to the store or keep her away or at other times would stay upstairs in the bedroom with Y.A. when their mother was not home.
On one occasion . . . defendant asked N.G. to have sex with him . . . . N.G. declined. She further testified that when her mother was not at home, defendant would walk in the house naked or wearing only a towel. On other occasions, . . . defendant would enter the bathroom when N.G. was taking a shower and offer to dry her off. At times, she would permit him, and he would rub lotion all over her body.
Y.A. . . . told her sister . . . of the history of . . . defendant sexually abusing her. Y.A. then went to New York City to tell her grandmother what had happened. She telephoned her mother at work to say that . . . defendant had "molested her" and her mother took her to the police station and a doctor's office for examination . . . .
Dr. Linda Shaw, an expert witness in pediatrics and child sexual abuse, . . . testified that she conducted a physical examination of Y.A. which revealed a lack of hymenal tissue across the bottom of the vaginal wall, a finding that would not be consistent with a child of the same age and no sexual penetration. Based on the fact that the hymenal tissue was missing in that area, Dr. Shaw opined that some sort of penetrating trauma caused the tissue to be injured.
Testifying for the defense, Dr. Jocelyn Brown, an expert in pediatrics and child abuse, testified that most experts use a colposcope to document child abuse. Dr. Shaw had indicated that she had used a magnification lamp rather than a colposcope. Dr. Brown testified that even assuming that Y.A. lacked hymenal tissue, this finding which normally raised a suspicion of sexual abuse would not be determinative because of the absence of prior medical records or baseline for a present evaluation. She further opined that assuming thirty incidents of vaginal penetration by an adult penis, there would have been more definitive findings such as a cleft or notches as contrasted with the mere lack of hymenal tissue.
Defendant testified on his own behalf and denied any sexual contact with either Y.A. or N.G. He said that he had been a strict disciplinarian with both girls and made sure that their social lives were secondary to their school work. [A.J., supra, slip op. at 2-5.]
After summations and charge, the jury commenced deliberations for approximately one hour on the first day. The jurors deliberated a second day before sending out a note near five p.m., indicating that they were deadlocked and could not reach a verdict. The judge provided the appropriate supplemental charge and dismissed the jury for the day. Deliberations commenced the next morning at nine a.m., and the jury returned its verdict shortly after twelve noon.
In his petition for PCR filed on March 4, 2005, defendant alleged ineffective assistance of his trial counsel.*fn1 He claimed this was demonstrated, in particular, through the ineffective cross-examination of Y.A. and N.G., and the trial testimony of several defense witnesses. We turn now to that trial testimony because defendant reiterates before us his claim that this testimony, in conjunction with the evidence adduced at the PCR hearing, established his claim and entitled him to a new trial.
Despite having documented information in her possession that Y.A. and N.G. had told their mother that they had fabricated the charges against defendant, trial counsel never questioned the two girls, or their mother, about it. We detail below the information that counsel possessed, and her reasons for not posing any questions about this alleged recantation.
Trial counsel called E.J., defendant's mother, as a character witness. She opined that defendant was "truthful" and "honest," however, counsel's attempts to elicit E.J.'s opinions regarding the "truthfulness and honesty" of N.G. met with vigorous objections from the prosecutor who claimed that she had no notice of the proffered testimony. A lengthy legal argument ensued, E.J. was excused from the witness stand, and the judge decided to consider the issue more fully the next day. For reasons that were unexplained, E.J. was never called back to complete her testimony.*fn2
Defendant called L.S. as the next character witness. She testified that defendant was honest and truthful. She also testified that she had been defendant's fiancée for the last four years. Her testimony placed the start of the relationship at a time when defendant was married to C.J. and living with her and her children. In her limited cross-examination of L.S., the prosecutor asked:
Q: So, the man that you called very honest became your fiancée at about the same time that he was living with his wife and his children in another home in North Plainfield, correct?
Defense counsel did not object.
Two subsequent character witness called by defendant, both of whom opined that he was truthful and honest, were asked by the prosecutor whether they knew that defendant had both a wife and fiancée at the same time. Both confessed that they did not. When defendant testified later in the trial, he was extensively cross-examined about his relationship with L.S., and whether she was his fiancée.
Counsel called defendant's wife, C.J., as a witness. Near the end of her testimony, the following exchange took place with defense counsel:
Q: Do you have an opinion as to [defendant's] truthfulness and honesty?
Q: And what is that opinion?
A: Well, my opinion is he, he did cheat on me, you know, with another woman, and I don't think that's honest.
Q: And what about your daughters; do you have an opinion as to their truthfulness?
A: As to my daughters? Well, with them having boys in the house, kids will lie about that, but that's it.
The prosecutor did not ask C.J. a single question.
In her summation, without objection, the prosecutor stated:
Now, let's talk a little bit about the defendant's witnesses. First one of the first people he puts on is [L.S.]. Putting her on the stand and having her vouch for his honesty speaks volumes. When you think it's okay to have a wife and a fiancée at the very same time, that's a pretty [skewed] value system, and a pretty [skewed] sense of morality. What does that tell you? That the limits are very unclear to this man. There is no line in the sand. That line is pretty cloudy. You are going to be hard pressed to find it.
She went on to comment on the testimony of the other character witnesses who did not know defendant had both a fiancée and a wife. Referring to C.J.'s testimony, the prosecutor noted: "What did she say about his truthfulness? He cheated on me, so how honest can he be?"
Two witnesses testified at the PCR hearing. Kathleen Lynch, a retired, twenty-one year veteran of the New York City police department, testified that in February 1998, she was assigned to the Special Victims Squad. When New Jersey law enforcement authorities contacted Lynch and indicated their investigation had revealed "[defendant] had also committed [rape and sexual abuse] on [Y.A. and N.G.] while they were residing in Brooklyn[,]" Lynch commenced an investigation.
Lynch interviewed defendant, Y.A., N.G., C.J., and E.J. C.J. told her "that both [N.G.] and [Y.A.] denied that [defendant] had ever done anything of a sexual nature to them." In a subsequent conversation, C.J. told Lynch that "she believe[d] her daughters . . . had made up the charges against [defendant] and they were lying to her[.]" Lynch further testified that "[C.J.] was going to contact the prosecutor in New Jersey and have the charges dropped there also."
Lynch documented these conversations and ultimately "closed out the case" because N.G. and Y.A. "were uncooperative." Lynch believed "[t]he girls . . . were [not] being completely honest with [her]" because their "stories were changing a little bit from one girl to the other[.]" Lynch forwarded the case file to defendant's trial counsel in response to a subpoena, and had "conversations with [counsel] . . . about [her] investigation."
Trial counsel also testified at the PCR evidentiary hearing. Counsel believed that during a pre-trial evidentiary hearing in which she successfully challenged the State's proffer of "fresh complaint" evidence, she had asked C.J. about the girls' veracity. She was surprised, therefore, by C.J.'s answer at trial regarding the girls' credibility because she "expected [C.J.] to answer consistent with the fresh complaint testimony which was that she didn't believe her kids." However, during cross-examination at the PCR hearing, counsel acknowledged that no such question was ever answered by C.J. at the pre-trial hearing.*fn3
Based upon the single answer C.J. gave at trial regarding the girls' veracity, counsel believed C.J. had "backtracked so much that [she] was afraid to cross (sic) her about the things . . . in the New York reports because . . . [she] was not sure what she would say." Counsel further explained why she did not question any witness regarding the "New York reports":
I also didn't want to get into the New York reports for a couple of other reasons . . . . [I]t turned out . . . Lynch dropped [the charges] . . . because these girls didn't cooperate which could go either way.
You don't know if they weren't cooperating because they made it up and they didn't want to get in trouble, or they weren't cooperating because mother didn't want them to come in [because] maybe she . . . had some other motive in making these statements to . . . Lynch like getting [defendant] back . . . [.] [T]here were just too many questions . . . in these New York reports.
Counsel testified that she had limited time to prepare C.J. for her testimony because "she came late, she never met with me ahead of time." She did, however, "talk  to [C.J.] before she went on the stand" for approximately thirty to forty-five minutes.
Counsel acknowledged receipt of a September 28, 1998 notarized letter authored by C.J. and directed to the assistant prosecutor who tried the case. In that letter, C.J. indicated "that the girls ha[d] been lying about things that happened." C.J. claimed that her landlord told her that Y.A. "had three boys in [her] bedroom," and when she confronted her daughter, "she denied it and . . . later told [C.J.] she did." C.J. also wrote that she "d[id] not want [defendant] to go to jail for something he didn't do." Counsel could not recall whether she had the letter in her file at the time of the trial, though she acknowledged it was there when subpoenaed by PCR counsel.
Counsel also acknowledged that she never asked Y.A. and N.G. about purported statements to their mother in which they denied any abuse by defendant. She explained that using the New York reports "would open a can of worms[.]" She again stated that she "had the mother already in prior testimony having said that." As noted above, there was no such testimony.
Counsel produced L.S. to testify to defendant's "[g]ood character." She did not believe the fact that L.S. claimed to be defendant's fiancée at the same time he was married to C.J. was "something negative." She expounded:
Fifty percent of all marriages end in divorce. [Defendant] had moved on from that relationship . . . .
I think people . . . given the high rate of divorce, people take up with other people.
I never saw that C.J. would come out with she thought that [defendant] was deceptive because he cheated on her. She had never said that anywhere.
Counsel admitted, however, that her own investigator had written a report indicating that C.J. had repeatedly called L.S., and, on one occasion, left a message essentially telling her to stay away from defendant. Counsel further acknowledged that producing L.S. permitted the prosecutor to cross-examine defendant and other character witnesses that followed about the extramarital affair, and comment extensively on the subject in her summation.
Lastly, as to E.J.'s aborted testimony, counsel believed the trial judge was going to permit the proffered opinion, i.e., that N.G. was "sneaky." She could not recall exactly why E.J. was not produced again during the remainder of the trial, though she believed defendant's mother was available.
Some eight months after the PCR hearing, the judge, who was not the trial judge, issued his opinion and entered the order under review. He first considered defendant's claim regarding the decision not to cross-examine Y.A. and N.G. about an alleged recantation, noting the State's characterization of this choice as "trial strategy." He further noted that because Lynch's report contained only C.J.'s statement about what the girls said to her, "the police report was insufficient to cross-examine both Y.A. and N.G." As to trial counsel's decision not to question C.J. about her daughters' recantation, the judge concluded "the record does not include any evidence of the complainants admitting to their mother that sexual abuse never occurred[.]" He further found: "The record is devoid of any indication that [C.J.] thought that her daughters lied about the sexual abuse." He concluded "[t]he decision not to elicit prior inconsistent statements was reasonably due to trial strategy as well as an articulated concern over the inconsistent nature of [C.J.'s] own testimony."
Turning to L.S., the judge found that "[she] appeared to be a good witness for . . . [d]efendant in pretrial preparation, according to [trial counsel.]" Referencing our opinion on direct appeal, the judge noted "that [L.S.'s] testimony did not substantially affect [d]efendant's rights." He further took note of counsel's "inability to predict that [L.S.] would have been any less of a witness than she was in the office[.]" The decision to call L.S., he concluded, "falls under the purview of trial strategy."
Regarding E.J., the judge noted "there was . . . no explanation provided in the record" for her not being recalled as a witness, and no conclusive evidence as to "who failed to reproduce [her]," defendant or trial counsel. Noting E.J.'s absence coincided with defendant's unexplained absence from trial for a day, the judge concluded "there is no reason to hold [trial counsel] accountable for . . . [d]efendant's conduct and actions." Further concluding that all defendant's claims "c[ould] be attributed to trial strategy, unforeseeable, inconsistent witness testimony, and unpredictable behavior on the part of . . . [d]efendant[,]" the judge denied the PCR petition.
We set forth the well-known standard that guides our review. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58.
In considering the first prong, particularly when the claim relates to trial counsel's strategic decisions, we recognize 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." Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Thus, there exists "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. "That presumption may be rebutted if defendant demonstrates that counsel's actions did not equate to 'sound trial strategy.'" State v. Echols, 199 N.J. 344, 358 (2009) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d. at 695) (quotation omitted). And, "strategy decisions made after less than complete investigation are subject to closer scrutiny." State v. Savage, 120 N.J. 594, 617-18 (1990). Applying these principles to the facts at hand, we conclude that trial counsel's performance was deficient under the Strickland/Fritz standard.
Obviously, the case centered upon the credibility of Y.A., N.G., and defendant, particularly since each side produced an expert whose opinion supported their proofs. C.J. could offer three potentially helpful areas of testimony on defendant's case. First, she could testify as to the alleged recantations by Y.A. and N.G. Second, she could testify about their lack of veracity. In both instances, their credibility would be impeached. Third, C.J. could testify as to defendant's truthful character, thus bolstering his credibility.
We assume, arguendo, that if cross-examined on the subject, Y.A. and N.G. would have denied telling their mother that defendant had not molested them. At that point, counsel would have necessarily had to elicit the testimony extrinsically, through C.J. Thus, we do not find the decision not to cross-examine the two girls, standing alone, to be proof of deficient performance. We cannot say the same regarding C.J.'s testimony.
In this regard, we first note that counsel spoke to C.J., someone she characterized as a "critical" defense witness, for only a short time, perhaps thirty to forty-five minutes on the day she testified. There is no indication that she spoke to her at all about the girls' alleged recantation as reported to Lynch, nor about the letter C.J. wrote to the prosecutor requesting that all charges be dropped against defendant because "the girls have been lying about things that happened." In short, it would appear that the limited preparation centered only upon the character evidence that counsel hoped to elicit at trial.
At the PCR hearing, counsel reiterated several times that she believed C.J. "backtracked" regarding her opinion of the girls' veracity and that made her reluctant to question her further about the truthfulness of her daughters. As we see it, counsel reached this conclusion based upon 1) a single, allegedly unexpected answer, i.e., that Y.A. and N.G. had only lied about having boys in the house; and 2) the subsequently-shown mistaken belief that counsel had elicited this testimony from C.J. at a pre-trial hearing. Assuming no pre-trial preparation occurred regarding the recantation evidence, we are hard-pressed to conclude that the decision counsel made, i.e., not to ask any questions of C.J. as to the alleged recantation, was a well-reasoned, strategic decision made after adequate investigation and preparation.
Counsel was concerned that any question to C.J. about the girls' recantation "would open a can of worms" regarding the New York investigation. We note, however, that counsel herself began cross-examining Y.A. by asking when defendant had first abused her sexually. The child answered that it happened in New York when she was nine years old, four years before the events charged in the indictment. In any event, we conclude that evidence of the New York investigation could have been reasonably limited so as not to divert the jury's attention from the crimes for which defendant was actually being tried. The benefit to defendant's case by introducing evidence that Y.A. and N.G. had recanted their claims of sexual abuse to their mother clearly outweighed any prejudice that might come about by evidence of a non-conclusive New York investigation that itself was based solely upon complaints made by Y.A. at the time she reported the abuse in New Jersey.
The lack of preparation subverted the third area of information C.J. could offer, i.e., evidence of defendant's good character. Although she claimed not to know that C.J. would be hostile to defendant because of his adulterous relationship with L.S., that conclusion was unreasonable given her investigator's written report that demonstrates some animosity between the women. Since L.S. had already testified when C.J. was called as a witness, it is obvious that counsel should have made full inquiry of C.J. regarding her feelings before blindly calling her as a character witness. Had she done so, she would not have been surprised by C.J.'s answer.
Turning to L.S., we also conclude that counsel's decision to call her as a character witness was not a strategic decision entitled to our deference. Counsel may not have viewed defendant's adulterous conduct as particularly troublesome from a moral standpoint. Her conclusion, however, that defendant's status of being simultaneously married to one woman and engaged to another as not an "attack [upon] his truthfulness and veracity" is simply incredible. Whatever moral judgment one might make of defendant's actions, it was obvious that defendant had "cheat[ed]" on his wife.
Moreover, it would appear that counsel never anticipated the consequences of her decision to call L.S. as a witness. First, defendant was called upon to try and explain the inexplicable during his testimony. In this regard, he essentially claimed that L.S. did not become his fiancée until much later, after he had separated from C.J., but while he was still married to her. Indeed, he was forced to acknowledge before the jury that he was still married to C.J. when he testified. Second, other character witnesses were questioned about the situation. Since two of them knew nothing about it, defendant was implicated in further dishonest behavior, and the witnesses' opinions regarding defendant's good character were undermined. Lastly, the prosecutor was able to make substantial fodder of the testimony in summation. These consequential results would not have occurred had counsel simply considered the problems caused by L.S.'s testimony, not through the prism of a moral judgment, but rather with clear-headed consideration of the fact that L.S.'s relationship with defendant was a lie brought to life before the jurors' eyes.
As to E.J.'s testimony, the record is clear that counsel could have recalled her to the stand. Although defendant failed to appear for trial on the very next day after E.J.'s aborted testimony, the trial continued into another day during which defendant and other witnesses testified. There was no explanation offered-other than defendant was supposed to transport the witnesses-as to why E.J. was not recalled. Moreover, it is not apparent that counsel ever again requested defendant to bring his mother to court, if indeed he was supposed to do so.
To successfully demonstrate the ineffective assistance of trial counsel, defendant must also show prejudice. "[I]f 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 [to counsel] will have been violated." Fritz, supra, 105 N.J. at 58. For a variety of reasons, we conclude defendant has demonstrated prejudice.
The State's proofs were by no means overwhelming. After more than a full day of deliberations, the jury believed it was deadlocked.
Y.A. and N.G. testified as to defendant's alleged conduct, but there was little cross-corroboration. Neither one witnessed the alleged behavior of defendant toward the other, except to describe, in general terms, the favorable treatment Y.A. received from defendant. Although Dr. Shaw testified regarding penetration, thus corroborating Y.A.'s testimony, Dr. Smith provided contrary scientific proof that Y.A.'s version of events could not be true. Once defendant testified in his own defense, however, the jury had two sets of allegations, each directly opposite from the other, to consider. The jury's decision turned upon credibility.
Although counsel cross-examined both girls about their motives in making the accusations against defendant, there was no evidence adduced of any prior inconsistencies in their stories. However, counsel knew that the two had allegedly recanted their accusations to their mother. Absent evidence to the contrary, we must assume C.J. would have testified that indeed Y.A. and N.G. had told her that defendant had not molested them. Such potent evidence, if believed, would have seriously undermined the credibility of the alleged victims.
Counsel's deficient performance undermined the other reasons for calling C.J. as a witness and damaged defendant's credibility. When asked about her daughters' truthfulness, C.J. limited her answer to the fact that the girls only lied about bringing boys around the house, implying they were not lying about defendant's conduct. Counsel left this answer hanging for the jury's consideration, not asking another question on the subject. Yet, counsel knew that C.J. had told Lynch that the girls had confessed to fabricating the charges against defendant. When counsel asked C.J. about defendant's character, her answer simply stated the obvious: That defendant had "cheat[ed]" on her by having an affair with L.S.
We have no doubt that L.S.'s testimony, which preceded C.J.'s by a day, was harmful, both in itself and because of the consequences that followed.*fn4 After L.S. testified, the prosecutor was able to cross-examine two other character witnesses about their knowledge of defendant's marital status. The favorable opinions of those two witnesses regarding defendant's character were diminished when both were forced to acknowledge that they did not know defendant was both married and engaged at the same time. In summation, and without objection, the prosecutor was able to morph defendant's adultery into an even more devastating suggestion, i.e., that "the limits [we]re very unclear to" defendant. In light of Y.A.'s testimony that defendant claimed to "be teaching [her] how to . . . have sex[,]" the implication of the prosecutor's comment was obvious.
In sum, we conclude defendant demonstrated that trial counsel performed deficiently, and that her inadequate performance, with reasonable probability, materially contributed to defendant's conviction. We must, therefore, reluctantly reverse the denial of defendant's PCR petition and remand the matter to the trial court for a new trial.
Reversed and remanded. We do not retain jurisdiction.