January 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL COLBERT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1746.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Reisner and Alvarez.
Defendant Michael Colbert appeals the August 29, 2008, denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.
Tried by a jury, defendant was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He was sentenced on March 27, 2003, to concurrent nine-year terms of imprisonment subject to a five-year period of mandatory parole ineligibility as he had a prior sexual assault conviction. See N.J.S.A. 2C:14-6. His conviction was affirmed in an unpublished opinion. State v. Colbert, No. A-5638-02 (App. Div. Dec. 21, 2004). Defendant's petition for certification was granted on July 7, 2005, and the Supreme Court remanded the matter for our consideration in light of State v. W.A., 184 N.J. 45 (2005). State v. Colbert, 185 N.J. 27 (2005). In a second unpublished opinion, we reversed. State v. Colbert, No. A-5638-02 (App. Div. Dec. 22, 2005). The Supreme Court in turn reversed and reinstated defendant's conviction and sentence, determining that State v. W.A. was prospective only and that therefore defendant's jury selection process satisfied constitutional requirements. State v. Colbert, 190 N.J. 14, 22-24 (2007).
Defendant next filed a pro se petition for PCR. Counsel was assigned, and filed a brief on defendant's behalf. The PCR judge issued a twenty-seven-page opinion denying the petition and the request for evidentiary hearing after oral argument, finding that defendant had not established the requisite prima facie case.
To briefly reiterate the facts developed at trial, defendant was convicted based on incidents occurring in December 1997, March 1998, and April 1998. In each instance, defendant rubbed the breast of the then ten-year-old daughter of a woman he was dating. The child testified that after each occasion defendant went into the bathroom, returning after some minutes. The child did not report these events until 2000.
On this appeal, defendant raises the following issues:
POINT I - THE ORDER DENYING
POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MISAPPLIED R. 3:22-4 AND R. 3:22-5 IN FINDING THAT THE DEFENDANT'S ARGUMENTS CONCERNING TRIAL COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGES, AND TRIAL COUNSEL'S FAILURE TO RECORD HIS PRETRIAL INTERVIEW WITH MS. [H.] AND M.H. TO SUPPORT A THIRD-PARTY GUILT ARGUMENT, WERE PROCEDURALLY BARRED
POINT II - THE ORDER
DENYING POST CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGES TO EXCUSE JURORS, AND TRIAL COUNSEL'S FAILURE TO RECORD HIS PRETRIAL INTERVIEW WITH MS. [H.] AND M.H. TO SUPPORT A THIRD-PARTY GUILT ARGUMENT, WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ[*fn1 ] TEST AND THE RESULTING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG OF THE TEST
POINT III - THE COURT'S RULING DENYING
POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION POINT IV - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF
APPELLANT WAS DENIED ACCESS TO THE COURTS BY A COURT ORDER DENYING ACCESS TO ALL PUBLIC LIBRARIES FACILITIES WHILE OUT OF JAIL ON APPEAL
NOT AWARE OF THE CONTENT OF JURY STATEMENT AND TRIAL JUDGE SUSTAINED THE OBJECTION BY THE PROSECUTOR UNTIL AFTER CONVICTION
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING, REINSTATEMENT OF SENTENCE AND DURING THE JURY TRIAL SELECTION AND TRIAL
PROSECUTORIAL MISCONDUCT, OPENING AND CLOSING ARGUMENTS, PROSECUTOR MADE IMPROPER REMARKS DURING SUMMATION WHICH PREJUDICED THE APPELLANT
UNRECORDED SIDEBAR AT END OF SUMMATION
APPELLANT HAS A DUE PROCESS RIGHT AS WELL AS A LIBERTY INTEREST IN THE CONSTITUTIONALITY OF THE DEPARTMENT OF CORRECTION INTERNET WEBSITE AND ALL SEX OFFENDERS INTERNET REGISTRY AS BEING UNCONSTITUTIONAL DURING THE TRIAL STAGE AND THE APPEAL PROCESS
PETITIONER CLEARLY CLAIMS IN HIS AFFIDAVIT THAT ONE JUROR SLEPT FOR A HALF-HOUR DURING HIS COUNSEL'S SUMMATION, A CRUCIAL PHASE OF THE TRIAL, THIS DEPRIVING HIM OF A FAIR TRIAL
A SUFFICIENT NEXUS - ACCESS BY AN ADULT MALE WITH "BEHAVIORAL PROBLEMS" TO THE YOUNG VICTIM DURING A TIME CONTIGUOUS TO THE ALLEGED ABUSE - HAD BEEN PRESENTED TO THE JURY TO ALLOW DEFENSE COUNSEL TO ARGUE THIRD-PARTY GUILT IN SUMMATION BASED ON THE CHILD VICTIM'S ALLEGED CONFUSION OR DISPLACEMENT
To demonstrate a deprivation of the right to the effective assistance of counsel, a defendant must satisfy the two-part test enunciated in Strickland. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test requires that a defendant establish that trial counsel's performance was deficient and that the deficient performance prejudiced his defense. Ibid.; see also Fritz, supra, 105 N.J. at 58 (adopting the Strickland test in New Jersey). Reviewing courts presume that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Defendant must prove he is entitled to post-conviction relief by a preponderance of the evidence - this includes claims of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). An evidentiary hearing is not required unless a defendant establishes a prima facie case in support of PCR. R. 3:22-10. Having reviewed the record in light of those legal standards, we conclude that except for Points I and II, all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We are satisfied that the PCR court's application of Rule 3:22-4(a) and Rule 3:22-5 on the issue of peremptory challenges was correct. At defendant's trial, during jury selection, the court denied defense counsel's request to allow defendant to directly participate in the voir dire process at side bar. The court did, however, allow defendant to participate through the use of an attorney shuttle system. Twenty-eight potential jurors were examined at sidebar, of which twenty-five were excused for cause. After the sidebars involving the twenty-eight jurors, the court recessed briefly, and counsel met with defendant. Colbert, supra, 190 N.J. at 17-22. The Supreme Court noted that while the process was ongoing, defendant had "an unobstructed view of the prospective jurors; consulted with his lawyer after each sidebar; admitted that he was "'very actively involved in jury selection,' that 'not a single juror was selected here without [his] input,' and that 'he himself chose certain jurors to be selected off the panel or requested other jurors to stay' . . . ." Id. at 24. Because of his participation in the sidebars, the Court concluded that "defendant was as fully present during voir dire as the Constitution requires and no error occurred." Ibid. In fact, defendant never claimed he was unfamiliar with the contents of the sidebars until this PCR application.
Defendant contends, for the first time, that had he been present at the sidebars, he would have peremptorily excused a juror who stated that his wife had been sexually molested as a child. Clearly, the question of that juror's service could have been raised on direct appeal, and is therefore precluded from consideration pursuant to Rule 3:22-4(a). Additionally, the entire subject of defendant's participation in the jury selection process was fully explored on direct appeal. It was reviewed by the Court when assessing the constitutionality of defendant's jury selection process, and therefore he is also barred from pursuing this issue under Rule 3:22-5.
Defendant has never previously questioned the efficacy of his involvement in the selection of jurors. He never disputed the fact that he spoke with his attorney after each sidebar, and spoke with his attorney before the exercise of peremptory challenges. Indeed Justice Rivera-Soto's concurring opinion states that the Court actually viewed the videotape of jury selection. Id. at 31-32. The Court witnessed defense counsel conferring with defendant after each juror's sidebar. Ibid. Certainly, as noted in the concurring opinion, the tape reflects only the "fact of the consultations" and not the "substance." Ibid. But defendant's silence up to this stage, plus the discussions he had with his attorney as depicted on video, undercut the legitimacy of this assertion. Furthermore, defendant's trial counsel stated during the motion for a new trial that he was guided by defendant's input during voir dire as far as which jurors to retain and which to excuse.
Defendant's claim is simply not substantiated by the record, in addition to being made in the wrong proceeding. Hence the PCR court's application of the bars contained in Rule 3:22-4(a) and Rule 3:22-5 was appropriate. Given that defendant's contentions were barred by rule and were not borne out by the record, the conclusion is inescapable that no prima facie case of ineffective assistance of counsel as required by Preciose has been established. No evidentiary hearing was therefore necessary.
Defendant also contends that his attorney failed to record his interview with the victim and her mother, thereby depriving him of an opportunity to raise a third-party guilt defense. Preliminarily, there is no record support for the assertion that defendant's attorney personally interviewed the victim and her mother. Although the PCR court assumed this fact was true in reaching its decision, we see nothing that substantiates the claim. From our review of the record, the issue of third-party guilt arose when trial counsel questioned the victim's mother about an individual, Roger Williams, who lived with her for an unspecified period of time prior to defendant moving in with her. She asked Williams to leave because of what she described only as "behavioral problems," a fact defendant probably knew pretrial. Defense counsel developed this issue as best he could during cross-examination.
When defense counsel attempted in summation to suggest that the "behavioral problems" leading to Williams's departure from the victim's home related to sexual misconduct, the State rightly objected that the claim lacked any foundation. The court agreed and the jury was instructed to disregard defense counsel's statement that of the two men who lived with the victim and her mother, Williams was "the more likely person to have touched her." The judge sustained the State's objection because the testimony did not support defense counsel's speculation as to third-party culpability.
Not only is there no record support that we can discern for the allegation that trial counsel interviewed the victim and her mother directly, from the record it appears that the only support for any defense of third-party guilt is counsel's aborted attempt to shift blame for the sexual assaults to Williams after soliciting vague information from the victim's mother. That thinnest of reeds cannot support the weight of a claim of third-party guilt. State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("bald assertions" are insufficient to support a PCR petition). We therefore affirm the court's decision to deny PCR relief on this basis, albeit for different reasons as we do not assume defense counsel interviewed the victim's mother. See Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968).
Accordingly, since the assertion that counsel's ineffective assistance prevented him from raising the defense of third-party guilt has no support in the record, defendant has not demonstrated that his attorney's performance was deficient. In the absence of a prima facie showing, no evidentiary hearing was therefore necessary.
Some of the issues reiterated in the appellate brief which were originally asserted by defendant pro se are unintelligible, lack any record support, and/or lack any basis in law. We consider the remaining points to be so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(2).