On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-02-0129.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 16, 2010 - Decided Before Judges Carchman, Graves and Waugh.
Following a jury trial, defendant Bryan Gilreath was found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (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); two counts of first-degree kidnapping to facilitate those offenses, N.J.S.A. 2C:13-1b(1)/ 2C:14-2a(1)/2C:24-4, N.J.S.A. 2C:13-1c(2)(a)/2C:14-2a(1)/2C:24-4 (counts four and five); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count six). After appropriate mergers, the judge sentenced defendant to an aggregate prison term of fifty-five years with a twenty-seven and one-half year term of parole ineligibility.
Defendant appealed, and we affirmed. State v. Gilreath, No. A-4118-98T2 (App. Div. June 15, 2000). The Supreme Court denied certification. State v. Gilreath, 165 N.J. 606 (2000).
Defendant subsequently filed a timely petition for post-conviction relief (PCR) in the Law Division asserting that he received ineffective assistance of both trial and appellate counsel. He sought a reversal of the conviction and a remand for a new trial. The PCR judge granted a hearing. Following a twenty-four day PCR hearing, Judge Reddin denied defendant relief. Defendant now appeals, and we affirm.
To address the issues presented on appeal, we set forth an expansive recitation of the facts derived from the original trial and those adduced at the PCR hearing. We first reiterate the facts as we described them in our earlier opinion affirming defendant's conviction.
At trial, the State presented the following evidence. L.S., the victim, was eleven years old on September 6, 1996, the date defendant kidnapped and sexually assaulted her. The incident occurred just after 4:00 p.m.[.] It rained throughout the day.
L.S. was walking home from a bakery when a man approached her. The man asked her twice what time it was, and she replied that she did not know, kept walking, and crossed the street. Shortly after that, the same man grabbed her from behind, with one hand around her waist and the other over her mouth, and carried her behind a red house.
The man forced L.S. to touch his penis and then to put it into her mouth. During the assault, the man made sexual remarks to L.S.[.] He also put his hands around her throat and told her that if she did not do as he instructed, he would strangle her. The man apparently ejaculated into her mouth and then told her to spit it into his hand. He then "splashed" the fluid into the bushes.
At that moment, the woman who lived in the red house opened her door, and the man told L.S. to run away, which she did. L.S. ran home and told her sister part of what had happened. L.S. told her sister only that the man had grabbed her and threatened her. She was able, however, to describe the man to her sister. L.S.'s sister was not sure what to do, so she telephoned her friend Shannon, whose father is a police officer. Shannon came over to the house, and the girls called the police.
Officer Kevin Gottheiner arrived at L.S.'s home at approximately 5:25 p.m.[.]
L.S. told Gottheiner the same thing she told her sister and described the man in the same way, as being a thin white male, with short, curly black hair, around five foot nine,*fn1 wearing green shorts and a green, yellow and red jacket or shirt. Gottheiner drove L.S. back to the scene of the assault so that he would know exactly where the event had taken place. When they returned to L.S.'s house, her mother was there, and the officer updated the mother on what had happened. Before he left, Gottheiner asked L.S. if she remembered what the man looked like well enough to describe him to a sketch artist, and L.S. replied "yes." After he left the residence, Gottheiner continued to search the area for the perpetrator. Gottheiner later returned to the scene of the assault, but was unable to retrieve any evidence because the rain had washed it away.
Shortly after Gottheiner left, L.S. revealed the entire episode to her mother. Her mother in turn telephoned Gottheiner to advise him of the full extent of the assault. Gottheiner reported the new information to Detective Cappuccio, who told him that sexual assault cases of juveniles under the age of twelve were handled by the county prosecutor's office. The police then advised the prosecutor's office of the situation.
In accordance with procedure, Gottheiner did not speak with L.S. again about the incident. He did, however, return to the home to pick up the clothing that L.S. was wearing at the time of the assault. Gottheiner told L.S. and her mother that the prosecutor's office would conduct an interview with L.S. on Monday.
On Monday, September 9, 1996, L.S. and her mother went to the Child Advocacy Center, a facility specially designed by the prosecutor's office for interviewing children. The prosecutor's office videotaped L.S.'s interview with Investigator Marotta. Investigator Herten and Detective Cappuccio observed the interview on a television monitor. L.S. did not know that she was being videotaped or monitored. It is the policy of the prosecutor's office to videotape allegations of sexual abuse or assault on children under twelve.
On September 11, 1996, L.S. went to the police station with her mother to help the police compose a sketch of the man who assaulted her. L.S. first gave a general description of her assailant to Lieutenant Trowbridge and then looked through groups of photographs to pick out features that matched those of her assailant. At this time, L.S. was not trying to identify defendant from the photographs. She was merely trying to find features similar to defendant's to facilitate the sketching process.
Lieutenant Trowbridge testified that in developing these sketches, he always tried to ask open-ended questions so as not to influence what the person tells him. Although Trowbridge did not document the exact changes that L.S. instructed that he make to the drawing, he testified that he effectuated whatever changes she requested. Trowbridge also stated that people always make corrections to the initial sketches and that he does not normally document the alterations. The sketch was completed and circulated, and the police began to gather photographs of suspects based on the sketch.
L.S. first viewed a photo array on September 20, 1996. She looked at a total of twelve pictures, but did not find the man who assaulted her. The pictures were presented to her in two groups of six. Defendant's picture was not in either group. Before she viewed the photographs, Detective Cappuccio explained to L.S. that it was important not to pick a photograph unless she was sure, and that this process also helped the police rule out people who are innocent. Detective Cappuccio testified that L.S. looked at the pictures very carefully before telling him that the man was not there.
L.S. returned to the police station on October 23, 1996, to view another set of photographs. Detective Cappuccio gave L.S. the same instruction as he had previously. He presented L.S. with a set of six photographs, in a manner consistent with the September procedure. Defendant's photograph was included in this array as photograph number three. L.S. picked out defendant's picture as that of her assailant. The picture of defendant was taken in front of a jail cell door. Neither the sketch interview, nor either of the photo line-up interviews was videotaped.
Once L.S. identified defendant, the police conducted another videotaped interview with her so that they would have enough information to obtain a search warrant. The second interview took place on November 6, 1996, at the Child Advocacy Center, and was conducted by Investigator Escobar. The second interview took place in the same manner as the first and was monitored by Marotta and Cappuccio. Escobar questioned L.S. specifically about the clothes her attacker wore and asked for any further details that L.S. could recall. Escobar also questioned L.S. about the man's hands, whether she recalled any specific smells, and whether the man had any scars.
L.S. did not recall anything new about his hands, nor did she recall any smells or remember any scars.
On November 12, 1996, pursuant to a search warrant, the police seized several items of clothing from defendant's residence. Although the clothes resembled those described by L.S., she did not identify any of this clothing as that worn by her attacker. Defendant was subsequently arrested.
At trial, defendant presented his case as one of misidentification. Defendant is a house painter by trade. His wife and a neighbor testified that he was painting the neighbor's house on the day of the assault. Defendant also apparently has several scars on his face. [State v. Gilreath, No. A-4118-98 (App. Div. June 15, 2000) (slip op. at 2-7).]
As a critical issue on this appeal is identification, we set forth additional facts derived from the record before us related to that issue. The police identified defendant as a suspect based on a separate incident on October 18, 1996, in Ridgewood, New Jersey, when a man approached two teenage girls and physically assaulted one of them. As a result of that incident, defendant was arrested and charged with various offenses.
Following the Ridgewood incident, a Haledon police officer saw the photograph of defendant taken by Ferrante and noted it was similar to the sketch of L.S.'s attacker. On October 23, 1996, Detective Cappuccio of the Haledon Police Department conducted a photographic lineup identification procedure with L.S. using the photograph of defendant from the Ridgewood incident, along with five other booking photographs of similar-looking white males. Detective Cappuccio told L.S. it was very important that she only identify one of the pictures as the man who attacked her if she was sure, and she was under no obligation to pick out any of the pictures. L.S. scanned the photographs from left to right, and when she viewed the third picture, "she suddenly stopped, her eyes widened and she [stared] at i[t] for a few seconds longer th[a]n the others, and then she quickly looked to the lower left to view the bottom row. She looked from left to right, and then pointed to picture #3 and stated, 'that's him.'" Cappuccio asked L.S. whether that was the man who had sexually assaulted her, or whether it just looked like him. L.S. responded, "that's the man." When Cappuccio asked her how she felt when she saw her attacker's face again, L.S. stated, "I felt scared looking at him." Cappuccio noted L.S.'s comments and her initials on the photo array next to defendant's photograph.
On November 6, 1996, L.S. described the sexual assault in detail to a Special Victims Unit investigator, Luz Escobar, and showed him on a map where she walked that day and where her attacker took her. L.S. explained that her assailant was wearing a green jacket, green shorts, and low-cut white running shoes with green stripes on them. The police obtained a search warrant for defendant's home based on L.S.'s photographic identification and the additional information she provided.
The police executed the search warrant at 5:30 a.m. on November 12, 1996 at defendant's home. The officers seized several pairs of shorts fitting L.S.'s general description and a green jacket-type of shirt. Following the search, the police showed L.S. various articles of clothing recovered, but L.S. could not identify any of them with certainty as being worn by her attacker. On the morning of November 14, 1996, the Haledon Police Department went to defendant's residence, waited for him to leave for work, pulled over his vehicle and arrested him for the kidnapping and sexual assault of L.S. The police advised him of his Miranda rights, once before and once after transporting him the Haledon police headquarters.
On February 26, 1997, James and Linda Cava,*fn2 next door neighbors of defendant's parents, proceeded to the Haledon Police Department to give statements regarding their knowledge of defendant's whereabouts on the day L.S. was attacked.
Initially, Linda told the police she and her husband knew defendant was not the perpetrator because on September 6, 1996, he was at their home working on a house-painting job that defendant's father had started in August 1996. When asked how she knew September 6 was the date that L.S. was sexually assaulted, she stated she was not sure, but she also said "maybe I saw a sketch or a picture of him. My husband keeps up with that, you should speak to my husband."
Additionally, when Detective Cappuccio asked Linda about the events of September 4, 1996, she responded, "I can't remember back four months" and "I knew you were going to do this[,] asking for a lot of details." Linda asked if James could be present during the interview, but when the police declined and said that doing so could influence the statements, she "demanded a break[,] abruptly, got up, walked out of the room and exited the building." The officers followed her and overheard her speaking to James outside. When James asked her to go back in, she responded, "They're asking too many details." The police advised them that arguing was unnecessary because they would not force anyone to give a statement.
At that point, Linda left the police station, and James went back inside, where he participated in an interview. When asked why he wanted to speak to the police, he responded, "We want justice done." Regarding the events of September 6, 1996, James claimed he went running at about 4:30 and returned at about 5:15. Detective Cappuccio's report then states that "[a]t this point James asked Detective Cappuccio 'the girl was assaulted about 4:30 or 5:00, isn't that right?'" James told the officers that defendant came to the Cava home with his wife to discuss the Haledon sexual assault and stated, "I need your help, you might need to give testimony." Finally, James reported that a detective hired by defendant's attorney had visited the Cava home and recorded statements from James and Linda.
Following his indictment and prior to trial, defendant "served a formal Notice of Alibi." Defendant, thereafter, filed a motion seeking a Wade*fn3 hearing to challenge L.S.'s identification and the police procedures used to obtain that identification. The motion was denied, and we denied leave to appeal.
On September 16, 1998, trial commenced in the Law Division. On direct examination, L.S. described the sexual assault, recounting the facts of that event as well as the events that followed in the ensuing months. Defense counsel, Brian Neary, then cross-examining L.S. at length, primarily focused on the processes utilized by the police to obtain an identification of her attacker. Counsel also questioned L.S. about the procedures the prosecutor had used to prepare her for her testimony, including showing her the courtroom and explaining where the judge and the defendant would be sitting.
In addition, Neary asked L.S. about whether she had noticed the scars on defendant's nose and over his eyebrow on his forehead. She responded that she had never noticed a scar and did not report a scar to the police. L.S. said, "I didn't notice that because I wear glasses," which she needed "to see a distance." She also acknowledged that if she were looking at a person's face closely, she wouldn't need her glasses to see if the person had any facial scars.
Immediately after L.S.'s testimony concluded, counsel announced that defendant had chosen not to testify in his own defense. The judge advised defendant of his constitutional rights regarding his decision whether to testify. The trial judge questioned defendant about the voluntariness of the decision as well as discussions with counsel. Defendant confirmed that it was his choice not to testify.
Following that colloquy between defendant and the judge, defendant's wife Blanca Gilreath testified for the defense.
Blanca claimed that she worked on a painting job with defendant on September 6, 1996, the day L.S. was sexually assaulted, from 5:30 to 7:30 p.m., and that they worked late so they would finish ...