March 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 14, 2010
Before Judges Axelrad and R. B. Coleman.
Defendant R.L., who was convicted of sexual assault and endangering the welfare of his step-daughter H.S. when she was between the ages of ten and fourteen, appeals from a September 23, 2008 order denying his application for post-conviction relief (PCR). We affirm.
In 2002, defendant lived with his wife, I.L., their daughter J.L., and I.L.'s son and daughter from another marriage, J.S. and H.S., respectively. On July 4, 2002, a bag in which defendant kept his laptop and other work papers was left on the kitchen table. Out of curiosity, I.L. went into the bag because defendant was so "secretive." Inside, she discovered four photographs. These photographs showed H.S. in different locations and outfits. One of the photographs showed H.S. in a bikini. Another was of H.S. wearing a short-skirt and holding a stuffed animal, and another depicted defendant and H.S. posing with J.L.; none of the photographs included I.L. When I.L. confronted defendant about the photographs, he denied they were his and he could not explain how they ended up in his bag. Later, I.L. asked H.S. about the photographs, but H.S. did not want to speak to her about them. Eventually, I.L. spoke to H.S. and was told by H.S. that defendant had tried to kiss her. H.S. also told I.L. that defendant had touched her and tried to sexually violate her. I.L. took H.S. to the police station and then the prosecutor's office.
H.S. was then fourteen years old. She reported that when she was ten years old she and defendant had been play-wrestling and on two occasions, he touched her breasts and vagina. Defendant denied these allegations, but H.S. was steadfast in her claim that defendant placed his hand over her clothes and vagina. She said at first she thought it was an accident, but after they were finished play-wrestling, defendant tried to sit H.S. on his lap and he put his hand over her vagina and touched her breast underneath her shirt. H.S. testified that, while play-wrestling with defendant on a second occasion, he again put his hand over her vagina.
H.S. explained she delayed in reporting these incidents because she did not want her family to fall apart. She was worried about her brother having a difficult relationship with her mother similar to what she experienced during her mother's divorce from H.S.'s biological father.
H.S. also testified that defendant directed inappropriate comments toward her over several years. Once, while driving with defendant, defendant asked H.S. if she masturbated. She did not want to talk about that subject, but defendant insisted and continued to talk about it. Defendant denied the conversation ever occurred. H.S. also testified that on another occasion, she was playfully trying to keep the door to defendant's bedroom door closed while defendant tried to open it. After defendant stopped trying to open the door, she waited a short time and opened the door herself. When she did, she saw defendant naked, with an erection.
On April 16, 2004, a jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:24-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On July 16, 2004, defendant was sentenced to two concurrent seven-year custodial terms, community supervision for life and required to register as a sex offender in accordance with Megan's Law. Defendant appealed, and on August 21, 2006, we affirmed defendant's conviction and sentence. State v. R.L., No. A-7133-03 (App. Div. Aug. 21, 2006). On September 25, 2007, defendant filed his petition for PCR, and on September 23, 2008, oral arguments were heard and defendant's petition was denied. In her oral opinion denying the requested relief, the PCR judge noted that "[t]he defendant concedes that the issues in this petition are procedurally barred because they were previously raised and adjudicated on direct appeal. However, defendant contends that the bar should be relaxed because its enforcement would result in a fundamental injustice." Finding no fundamental injustice had been shown, the court denied the petition. This appeal followed.
In his brief on this appeal, defendant makes the following assertions of error:
POINT I: CONTRARY TO FACTS USED TO SUPPORT DEFENDANT'S AFFIRMED CONVICTION ON DIRECT APPEAL, THE CHALLENGED PHOTOGRAPHS WERE EXAMINED BY THE JURY AND INTRODUCED INTO EVIDENCE: THE TESTIMONIAL AND PHYSICAL EVIDENCE WERE NOT HARMLESS AND LIMITING JURY INSTRUCTIONS ON ERRONEOUS EVIDENCE WERE NEVER GIVEN.
POINT II: IT WAS PLAIN ERROR FOR THE COURT TO FAIL TO INSTRUCT THE JURY TO DISREGARD EVIDENCE IN THE CASE REGARDING PORNOGRAPHY;
AS A WHOLE THE JURY CHARGES WERE ERRONEOUS AND CREATED A SUBSTANTIAL LIKELIHOOD OF A NON-UNANIMOUS VERDICT.
POINT III: THE TRIAL JUDGE'S JURY INSTRUCTIONS REGARDING THE PROPER EVALUATION OF THE CREDIBILITY OF H.S. WERE ERRONEOUS.
POINT IV: IT WAS PLAIN ERROR FOR THE COURT TO FAIL TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF LEWDNESS.
POINT V: PCR COURT'S DECISION MUST BE VACATED AND DEFENDANT'S CONVICTIONS REVERSED; THE PCR COURT'S CONCLUSIONS WERE BASED ON MISREPRESENTATIONS OF THE RECORD.
POINT VI: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
"Post-conviction relief is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits[.]" State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). "Because post-conviction relief is not a substitute for direct appeal and because of the public policy to promote finality in judicial proceedings, our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (citation and internal quotation marks omitted). As examples, the Court has noted that "a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12." Ibid. The Court has further observed that "[a]lthough our rules provide for certain exceptions to these general rules, . . . it is important to adhere to our procedural bars." Ibid.
Here, defendant's claims asserted in Point I were previously adjudicated on direct appeal, as will be discussed more fully below. Points II, III and IV concern alleged errors by the trial court in failing to give certain instructions or limiting instructions to the jury. Plainly, defendant's assertions of failure to provide adequate instructions to the jurors could have been raised on direct appeal. We are convinced these claims are properly barred and do not warrant further elaboration in a written opinion. R. 2:11-3(e)(2).
On his direct appeal, defendant challenged, among other things, references to I.L.'s testimony about photographs of H.S. In that appeal, defendant's appellate counsel mistakenly stated the photographs were never admitted into evidence and never shown to the jury. These same mistakes were repeated in our opinion deciding defendant's direct appeal and are the primary focus of the remaining points, Points I, V and VI, of defendant's brief on this appeal.
In Point I, defendant contends, as he did in his direct appeal, that neither I.L.'s testimony nor the photographs themselves should have been permitted at trial because the copies of the photographs had not been authenticated and because the photographs were inflammatory. He also argues the admission of the photographs was cumulative and redundant to testimony given by I.L. In addition, defendant contends, as he did on direct appeal, that the photographs tended to evidence bad character on his part and a propensity to view inappropriate and prurient materials.
In Point V, defendant contends that the PCR court's decision must be vacated because the PCR judge relied upon conclusions of our opinion in defendant's direct appeal, which were based on erroneous facts. In other words, defendant maintains that PCR counsel repeated the error that the photographs were not seen by the jury or introduced into evidence, and that consequently the conviction should be reversed or the matter remanded to the PCR court for an evidentiary hearing.
Similarly, in Point VI, defendant asserts he received ineffective assistance of counsel from PCR, appellate and trial counsel. More specifically, defendant argues (1) PCR counsel did not examine the record to discover, among other things, that the jury examined the photographs during I.L.'s testimony and in the jury room; (2) appellate counsel failed to make appropriate recitations of facts and to raise relevant issues of error; and (3) trial counsel should have objected to the prosecutor's opening and closing statements, because they portrayed defendant as more likely to have committed the offense based on the photographs his wife found in his briefcase and other materials improperly in his possession.
The State responds that defendant's claim that the photographs of H.S. should have been excluded as inadmissible character evidence was raised and decided on defendant's direct appeal. Acknowledging that defendant is correct that the photographs were, in fact, admitted into evidence and that we mistakenly indicated they were not, the State nevertheless argues defendant's claims are procedurally barred and substantively meritless.
Significantly, Rule 3:22-4*fn1 provides that:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Rule 3:22-5 provides:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
Defendant could have but failed to raise on direct appeal the issues of error it raises in this appeal. Nevertheless, defendant contends enforcement of a procedural bar would be unjust because our prior decision was based on a misstatement of fact. We reject this contention and are satisfied the PCR court properly denied defendant's application.
"Cloaking the claim in constitutional language will not guarantee relief." State v. Mitchell, 126 N.J. 565, 586 (1992). And while we acknowledge a procedural bar may be relaxed to avoid a fundamental injustice, there is no bright-line rule to determine fundamental injustice. Id. at 587. As the Court has stated:
In defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise "wrought a miscarriage of justice for the individual defendant." The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, "to establish injustice there should at least be some showing that . . . [the alleged violation] played a role in the determination of guilt. . . . To conclude otherwise would exalt form over substance." [Ibid. (citations omitted).]
It is well settled that to establish a prima facie claim of ineffective assistance of counsel a defendant must demonstrate the following two prongs: (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).
We accept defendant's assertion that PCR counsel may have failed to properly investigate the facts of defendant's case, and as a result, counsel echoed misstated facts at the PCR hearing about evidence admitted at trial. However, the record reveals, virtually beyond cavil, that the misstated facts concerning the admission of the photographic evidence were not expressed at trial and did not influence the verdict. Moreover, the jury's access to the photographs was not a critical basis for our decision on the direct appeal. Even defendant argued the photographic evidence was cumulative and redundant. Therefore, defendant cannot establish that counsel's failure to discover that the mistake about which he now complains affected the disposition on the direct appeal or the outcome of the PCR proceeding. State v. Worlock, 117 N.J. 596, 625 (1990) (observing that "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel").
The thrust of nearly all of defendant's arguments is that a misapprehension of the evidentiary status of the photographs recovered from his laptop bag was determinative in his direct appeal and in the subsequent PCR proceeding. A fair reading of our earlier opinion shows that is not so. In our decision on the direct appeal, we stated:
To the extent defendant's argument may be understood to contend that the photographs were improper character evidence, we reject that contention. The State was not offering them to prove that defendant had sexually assaulted H.S. and it advanced no such argument. Indeed, as the court reasoned, the jury could have inferred that defendant carried the photos out of paternal love for H.S.
The photographs and defendant's secretive nature were relevant to demonstrate how the case came into existence, particularly since the allegations were not reported until two years after they occurred. I.L.'s description of why she looked in the bag, its contents and subsequent questioning of H.S. about the bag's contents provided a logical connection of why H.S. came forward at this time.
Prejudice did not substantially outweigh the probative value. Indeed, though I.L. expressed shock, her description of the photographs did not appear to have been unduly suggestive or provocative. N.J.R.E. 403. The discovery of the photographs was the catalyst for the communication between I.L. and H.S. that led H.S. to reveal defendant's actions. Assuming these photos are, in some way, prejudicial to defendant, we do not perceive any undue prejudice nor such substantial prejudice that all evidence of them should have been barred. Moreover, the photographs were not shown to the jury and they were not available to the jurors during their deliberations.
[State v. R.L., supra, slip op. at 10.]
The record confirms defendant's assertion that photocopies of the pictures were, indeed, admitted into evidence, as S-9 through S-12, and that they were shown to the jury and were available to the jury during deliberations. However, the misstatement of those facts in our prior opinion is inconsequential. A review of the opinion confirms our assessment that there were legitimate reasons, other than to impugn defendant's character, for those photographs to be used and admitted at trial. Moreover and in spite of defendant's hyperbolic characterization of the asserted error, the conviction was affirmed based on properly admitted evidence. The evidence was relevant to the explanation of why the victim chose to come forward when she did.
In the end, it is obvious that we did not -- and do not -- consider the photographs to have been unduly or substantially prejudicial. Under such circumstances, we agree with the PCR court's finding that there is "no fundamental injustice and no reason to relax the bar on these already adjudicated issues."