On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-04-0388.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Sabatino and Fasciale.
Following a jury trial in 2004, defendant Tramaine Milledge was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2c(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court merged the endangering offense into the sexual assault conviction, and imposed a ten-year custodial sentence with a five-year parole disqualifier, plus registration obligations and various other conditions under Megan's Law. Defendant's convictions were upheld on direct appeal, although his sentence was remanded for further consideration pursuant to State v. Natale, 184 N.J. 458 (2005). See State v. Milledge, No. A-5674-03 (Dec. 15, 2005), certif. denied, 187 N.J. 492 (2006). On remand, the sentence was reinstated.
Defendant then filed a petition for post-conviction relief ("PCR"), alleging that his trial counsel was ineffective in numerous respects, particularly concerning his handling of "fresh complaint" evidence that the State had adduced through a police officer, and as to his efforts to impeach or counter the testimony of the State's sexual assault expert. Following a two-day evidentiary hearing, which included testimony from a sexual assault expert retained by defendant's PCR counsel, the trial court concluded that the standards for relief under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)*fn1 were not met and consequently denied defendant's petition. We affirm that determination, for the reasons that follow.
Because of the heavily fact-specific and technical aspects of defendant's PCR claims and the associated expert testimony, we summarize the relevant factual and procedural history in some detail. Our description of these matters is graphic only by necessity.
The State's proofs showed that on May 25, 2002, the thirteen-year-old victim, L.W., visited her friend M.H.'s house in the City of Millville. Several of L.W.'s friends were present at the house. At 9:00 p.m. that evening, L.W. and two of her friends left the house and went next door to defendant's house in order for L.W. to use the phone to call her grandmother. L.W. had never met defendant before going to his house, and she had not been inside of it before that night.
Once they arrived at defendant's house, L.W. called her grandmother and told her that she was at her friend's house. After L.W. called her grandmother, she asked defendant to use the bathroom.
L.W. testified that defendant then brought her into a dark bedroom instead of a bathroom. Defendant shut the door, and
L.W. thought that he locked it. Then defendant removed his pants. Defendant did not say anything to L.W. but he began to remove her clothing. L.W. attempted to push defendant away, but he continued to remove her clothing. Eventually, defendant removed L.W.'s jeans and underwear. L.W.'s shoes were already removed, as she had not worn shoes to defendant's house. Then defendant picked her up, carried her approximately six feet to the bed, and according to the State's proofs, repeatedly had vaginal intercourse with L.W. L.W. approximated that the sexual assault lasted for fifteen to twenty minutes.
L.W. testified that she did not remember whether defendant put on a condom. However, a report of the Sexual Assault Response Team ("SART") stated that L.W. informed the examining nurse that defendant wore a condom. L.W. was not certain whether defendant had penetrated her vagina. When defendant stopped, "[h]e opened the door [of the bedroom] and said, 'Get the F out of my house.'" L.W. put on her clothing and left the room.
When L.W. left the room, her two friends were no longer in defendant's house. L.W. fled from defendant's house, and asked several persons who were congregated outside if they knew where her two friends went. L.W. did not cry or inform the people outside about the alleged rape. After the people outside the house responded that they did not know where the other girls went, L.W. returned to M.H.'s house and spoke with another friend and a friend's mother. L.W. did not inform them at that time of the alleged rape.
L.W. changed her clothing into pajama pants, but did not shower. Then L.W. went into M.H.'s bedroom and laid down for twenty minutes until her two friends entered the room. L.W. did not inform the girls what had happened, and they all went to sleep.
The next morning, May 26, L.W.'s father picked her up at M.H.'s house and brought her to the police station. At trial, Officer Steve Jones, a police officer in Millville, testified that L.W. came to his office at the police station with her father and his wife. L.W. informed Officer Jones of the details of the alleged rape, a description of the defendant, and the location of defendant's house. While at the police station, Officer Jones also spoke with L.W.'s father, and her father alleged that his daughter had been raped. Officer Jones did not instruct L.W. to go to a hospital for an examination, because, as he explained in his testimony, he "wasn't too familiar" at that time with the proper procedures.
After L.W. gave a statement to Officer Jones, she went home. The officer went to defendant's house but he was unable to locate him. Eventually, nearly a year after the episode with L.W., defendant was arrested, and charged with various crimes, including sexual assault and the endangerment of a child's welfare.
As part of its trial proofs, the prosecution called Christina Swain, a registered nurse at Newcomb Medical Center ("NMC"), to testify regarding the exam she performed on L.W. The court qualified Swain as an expert witness under N.J.R.E. 702, without objection by defense ...