December 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-04-0722.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010
Before Judges Parrillo and Espinosa.
Defendant R.B. appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Following a mistrial, defendant was retried and convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and the disorderly persons offense of child abuse, N.J.S.A. 2C:9-1 and 9:6-3 (count four). The facts, as stated in our unpublished opinion affirming defendant's conviction, are reiterated here:
In 1998, the victim, six-year-old C.R., went to live with his mother K.B. and defendant, K.B.'s husband, in Jersey City.
While living with his mother and defendant, C.R. displayed violent and erratic behavior. Examples of such behavior included harming, or attempting to harm, the family cat, and attempting to set a rug on fire in the family's home. K.B. asked C.R. on several occasions why he was behaving in such ways, and C.R. merely told his mother that he acted the way he did because "he wanted to do it."
K.B. and defendant separated in August 1999, however they continued to speak and often discussed reconciling. During that time, C.R. maintained his erratic and defiant behavior. Eventually, K.B.'s mother suggested that K.B. ask C.R. if anyone had touched him in an inappropriate manner when he was living with his natural father. C.R. initially denied that anyone had sexually abused him, but then implied that his father, C.R., Sr., had touched him inappropriately once. When K.B. asked C.R. again, he retracted his statement, saying that his father did not touch him, but that defendant did.
K.B.'s mother then contacted the police and C.R. was taken to the Jersey City Police Department's Sexual Assault Victims Advocacy (SAVA) Center. There, C.R. gave a statement explaining that defendant would force him to put defendant's penis in his mouth and that defendant would perform fellatio on C.R.
C.R. stated that these incidents took place in the car when defendant would take C.R. to school or at the laundromat, and once in the hallway of the family's apartment building.
Later that night, defendant was arrested and taken to the SAVA office for questioning. Defendant was advised of, and waived, his Miranda rights and agreed to speak to the police. Although initially denying the allegations, defendant eventually told police that he may have touched C.R.'s genitalia, but that he suffered from blackouts and could not recall whether he did or not.
At trial, C.R. testified that R.B. "stuck his private in my mouth," "a few times," and that once he "peed in my mouth." He was, however, unable to state with any specificity the number of times these assaults took place or exactly where, except that once it was "in the car."
Dr. Lynn Taska, a clinical psychologist, testified for the State as an expert witness on Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Taska testified that CSAAS identified typical behaviors in children who have been sexually abused. Dr. Taska further stated that it was not unusual for sexually abused children to not immediately report an incident of sexual abuse because they "get that there's something bad about this and that they're supposed to keep it a secret." Dr. Taska also testified that child victims of sexual abuse often exhibit destructive behavior such as acting out, hurting animals, and setting fires.
[State v. R.B., No. A-1267-02 (App. Div. Oct. 14, 2003) (slip op. at 2-4).]
At sentencing, the judge merged count two into count one and imposed an eighteen-year prison term with a nine-year period of parole ineligibility. The judge also merged count four into count three and sentenced defendant to a seven-year term of incarceration with a three-year period of parole ineligibility to run consecutively to the sentence on count one. Appropriate fines and penalties were also imposed.
Defendant appealed and we affirmed the judgment of conviction, but remanded for elimination of the consecutive term on count three. State v. R.B., supra, slip op. at 37. The Supreme Court granted defendant's petition for certification and affirmed defendant's conviction. State v. R.B., 183 N.J. 308 (2005).
Thereafter, defendant filed a timely PCR petition, arguing, among other things, that he was entitled to a new trial based on newly discovered evidence and that his trial counsel was ineffective. Following argument, the Law Division judge denied the PCR petition, finding:
Petitioner's request for [a] new trial is based upon what he asserts is "newly discovered evidence." The "evidence" referred to in Defendant's papers consists of copies of two letters written by the Defendant's wife. Each letter was sent to the Defendant after his sentence on September 3rd, 2002. The "evidence" provided in each letter is the same.
In each letter, the Defendant's wife advises him that she has learned that her mother "set up" the Defendant. The first of these letters was received by the Defendant within 14 days of the sentence, some five years ago. Providing the same information in the same format some four years later, does not make it "newly" discovered. The information has been in the Defendant's hands for over four years and he has heretofore failed to act upon it. It is not newly discovered.
Second, the information provided is merely cumulative of his wife's testimony at trial.
Consequently, the mother's disbelief of the victim, the grandmother's alleged precipitous involvement of the police, and the child's recantation were before the jury. The jury obviously rejected [Mrs. B.'s] testimony as incredible. [H]aving observed her testimony firsthand, that was a judgment with which I wholeheartedly concur.
Consequently, I here find first, that the information provided in support of the motion is not newly discovered.
Second, in its present form, [the information provided is] unsupported by any fact which would render it admissible at trial, and it not evidence which would likely change a jury's verdict. The motion is denied.
The remaining claim alleges ineffectiveness of Counsel.
Having reviewed the Petition, I find an evidentiary hearing is unnecessary insofar as the Petitioner's claims are vague, purely speculative and conclusory.
The first argument advanced in support of the ineffectiveness claim is that Counsel failed to properly investigate and call certain witnesses.
The Petitioner does not even suggest in his papers how Counsel's investigation was flawed, nor is there any indication what a proper investigation would have revealed, or how it could have [a]ffected the outcome of the trial. It is therefore, fairly classified as a bald assertion.
Petitioner next argues that Counsel failed to retain and call an expert regarding the suggestibility and/or taint of the interview procedures utilized in the case, and that that amounts to ineffectiveness of Counsel.
Petitioner's argument here is fatally flawed factually.
Petitioner has not provided this Court with an expert report or an affidavit from an expert indicating what evidence could have been provided that would in any way have [a]ffected either the Court's 104 ruling or the verdict. That is not surprising given the evidence.
Petitioner next fault[s] his Counsel for not objecting to the Court's Child Sexual Abuse Accommodation Syndrome jury instruction. That matter was argued on direct appeal and rejected. Consequently, Counsel cannot be considered to have been ineffective for failing to reject a proper instruction.
Petitioner's final specific assertion is that Counsel failed him by not calling the victim's aunt, [M.D.] as a witness.
Glaringly absent from the Petition, is an affidavit from [M.D.] as to the specifics of her proffered testimony.
None of [M.D.'s] speculation, beliefs or opinions constitute admissible evidence and could not have [a]ffected the outcome of the trial. She had no material relevant evidence to offer.
On appeal, defendant reiterates these same arguments:
I. THE PCR COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.
II. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
III. IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
IV. DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF OR AN EVIDENTIARY HEARING BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
We have considered each of these issues in light of the record, the applicable law, and the arguments advanced, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
To qualify as newly discovered evidence entitling a defendant to a new trial under Rule 3:20-2, the evidence must be:
(1) material to the issue and not merely cumulative or impeaching or contradictory;
(2) discovered since the trial and not discoverable by reasonable diligence beforehand; and
(3) of the sort that would probably change the jury's verdict if a new trial was granted.
State v. Carter, 85 N.J. 300, 314 (1981); see also State v. Johnson, 34 N.J. 212, 222 (1961). Although all three tests must be met before granting defendant a new trial, Johnson, supra, 34 N.J. at 223, defendant has established none of them.
The first of two letters from defendant's wife was dated September 15, 2002, twelve days after defendant was sentenced.
Given the proximity in time, defendant has not demonstrated that the contents of the letter could not have been discovered by reasonable diligence during his trial, shortly before. Indeed, defendant was previously aware of the substance of the letters as it was merely cumulative of his wife's testimony at trial to the effect that she discredited her own child's accusation and blamed her mother for instigating the police investigation.
Because it was evident from her trial testimony that the victim's mother did not believe her son's account, her two letters to defendant subsequent to his sentencing that confirm her disbelief are not "the sort [of evidence] that would probably change the jury's verdict if a new trial was granted." Carter, supra, 85 N.J. at 314.
Defendant's claim of ineffective assistance of counsel fares no better. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., 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). We are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.
The alleged deficiency was trial counsel's failure to retain the services of an expert witness on suggestive interview techniques and to fully investigate all potential witnesses. As to the former, defendant makes no more than bald assertions and fails to identify the expert witness or the substance of the expert's putative testimony. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Preciose, 129 N.J. 451, 459 (1992).
Absent sufficient facts to demonstrate counsel's alleged substandard performance, an evidentiary hearing in this case was not warranted. Preciose, supra, 129 N.J. at 462; Cummings, supra, 321 N.J. Super. at 170.
This same reasoning applies to defendant's claim that counsel failed to interview certain witnesses. Here again, other than the victim's aunt, defendant fails to identify witnesses with relevant information that counsel should have interviewed and, in the case of the aunt, fails to detail the relevant information she supposedly possesses -- much less demonstrate that its omission prejudiced his right to a fair trial.
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