July 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GAMALIEL DELGADO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012 -
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court's order, after our remand, denying post-conviction relief (PCR) after an evidentiary hearing. We affirm.
Tried to a jury, defendant was convicted of two counts of third-degree attempting to lure or entice a child, N.J.S.A. 2C:13-6, and was sentenced in May 2002 as a persistent offender on one count to an extended term of eight years, with four years of parole ineligibility, concurrent to four years, with two years of parole ineligibility, on the other count. Megan's Law registration and community supervision was also mandated. Defendant did not testify at trial.
The facts and procedural history are set forth at length in our subsequent opinion affirming defendant's conviction on direct appeal, State v. Delgado, No. A-2467-02 (App. Div. April 5, 2004), and our opinion largely affirming the trial court's decision denying without a hearing defendant's PCR, but remanding for an evidentiary hearing solely on the claim defendant received ineffective assistance of counsel because his attorney failed to accurately advise him that if he testified, his prior convictions in New York for first degree sexual abuse would have been sanitized. State v. Delgado, No. A-5119-06 (App. Div. July 22, 2008).*fn1 Specifically, we decided defendant was entitled to an evidentiary hearing regarding:
1) what advice he was given and whether it was proper; 2) why he did not take the stand; 3) whether he would have testified if given the proper advice (assuming a finding that he was not); and 4) whether defendant's testimony may have made a difference, thereby warranting a new trial.
[Id., slip op. at 10.]
At the PCR hearing, the trial judge - who also presided over the jury trial seven years earlier - heard testimony from defendant's trial counsel, and defendant himself. Defendant testified that had he been aware his prior convictions would have been sanitized under Sands/Brunson,*fn2 he would have testified in his own defense. On direct examination, he testified briefly that he would have admitted meeting the girls on the Atlantic City boardwalk, but would have denied inviting them to go for a ride in his car.
On cross-examination, the State confronted defendant with his statement at sentencing, in which he admitted he met the young girls and spent two hours with them, during which he tied one child's shoelace, walked with the girls to a store several blocks from where he initially met them to buy them snacks and drinks, assisted one child perform flips in the park by placing his hands on her back and stomach, directed a child to "pee" in a bush, and offered to take one of the girls home. In his statement, defendant asserted the children approached him, requesting that he buy them food. He also contradicted one child's trial testimony that defendant put $3 in her waistband, and asserting he had no intention to harm or commit a sexual offense against the children. At the PCR hearing, defendant asserted his pre-sentencing statement was truthful, but then he disavowed his statement that he offered to take a child in his car. He again denied any intention to commit a sexual offense against the victims.
The trial judge found defendant received ineffective assistance of counsel, consisting of counsel's failure to advise defendant that if he chose to testify, his prior New York convictions for first degree sexual abuse would have been sanitized; and had defendant been given accurate advice about the potential use of his prior convictions, he would have testified. However, the court found defendant was not prejudiced.
Defendant argues the trial court erred by requiring a greater showing of prejudice than required by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).*fn3 Although the trial judge did misstate the standard, we conclude his findings set forth in his written opinion make it clear that defendant failed to satisfy the prejudice prong as set forth in Strickland and Fritz.
The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d 696-97). In order to prove prejudice, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, supra, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. See also State v. Lee, 211 N.J. Super. 590, 601 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987).
In defining the test for satisfying the prejudice prong, the United States Supreme Court rejected as too lenient a required showing "that the errors had some conceivable effect on the outcome of the proceeding[s]" because "[v]irtually every act or omission of counsel would meet that test" and not every such error "undermines the reliability of the result." Strickland, supra, 466 U.S. at 693, 104 S. Ct. 2067, 80 L. Ed. 2d at 697.
On the other hand, the Court rejected as too demanding a required showing "that counsel's deficient conduct more likely than not altered the outcome of the case." Id. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697. The "outcome-determinative standard" had the advantage of utilizing a familiar standard that comports with the test for considering motions for new trials based on newly discovered evidence. Id. at 693-94, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697. However, a new-trial- motion standard was inapt because a motion for a new trial presupposed a fair prior proceeding, and it set a high hurdle to promote finality. Ibid.
The Court then explained why it adopted the test requiring the showing of "reasonable probability that, but for counsel's unprofessional errors, the result would have been different."
An ineffective assistance claim asserts the absence of one of the crucial assurances that the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors cannot be shown by a preponderance of the evidence to have determined the outcome.
Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
[Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697-98 (internal citations omitted).]
In his opinion, which we quote a length, the judge set forth his factual findings relevant to the PCR.
The Court reserved decision, however, on the issue of what effect defendant's election not to testify may have had on the trial's outcome pending a complete review of the trial testimony. That review is now complete.
Only 2 witness[es]*fn4 testified for the State: one of the alleged child victims, [J.] and police officer Lee Hendricks.
My impression of [J.'s] testimony can best be described by my comments made at the end of the State's case when the defendant moved for dismissal of the charges:
I think the evidence would clearly allow the trier of fact to infer reasonably that the defendant tried to entice or lure the children named in the indictment into the car. He plied these children with money, candy, ice cream. He, and unquestionably based on their testimony, came right out and asked them if they would take a ride with him for whatever purpose. But no question did he ask them to get into the car with him. So the first two elements, certainly there is an abundance of evidence so that one would allow a reasonable trier of fact to prove beyond a reasonable doubt the defendant committed those two elements. Now as to the third, its purpose, once again the purpose is a state of mind not easily proven by direct evidence but from what reasonable inference might be drawn, in this case, we have the defendant allegedly being in the presence of these girls for a long period of time, likely more than 2 hours, he followed them from place to place, that, and while there appears to have been some disinclination on the girls' part to have him come along he seemed to be firmly resolved to accompany them to wherever they went. There were repeated efforts to have actual physical contact with the placement of his arm around two of them, getting close to one to tie her shoe when it appeared to others that she didn't need help, placement of money inside the waistband of [C.] and of course putting his hands on her waist over her objection explaining that she needed help to try to do the flip when she wanted to do one when they were in the park. The car being, having tinted glass, I agree would be some indication. And the surreptitious manner in which he returned to the car on the second day once it appears that he was aware that he was being scrutinized by the father of [C.]. I think all of those things clearly would allow a reasonable trier of fact to infer that his purpose was to have sexual contact with these children.
At the time of the evidentiary hearing on the defendant's PCR, the defendant himself testified concerning the statements made by Mr. Alcantra regarding his election not to testify. That testimony need not be recounted here, given the Court's finding in favor of the Petitioner on the issue of the ineffectiveness of counsel's advice. However, the Petitioner was questioned about what he would have testified to the jury had he done so. To be sure, this was not a wide-ranging direct examination nor a probing cross-examination such as what would likely have occurred at the time of trial.
However, the defendant was questioned about his interaction with the children. He did not substantially deny the account given by the children as to his activities. Most importantly, however, was his response to the Court's question as to what his purpose was in interacting with the children as he did. His response was evasive and in fact, offered no clear plausible alternative to the purposes alleged by the State. In fact, I found the defendant's testimony wholly unsatisfying as to render any innocuous purpose or intent on his part from the conduct described by [J.].
A finding that this Court is obliged to make, i.e., whether the defendant's testimony could have affected the trial's outcome, is not an easy undertaking given that it requires to a large extent a hypothesis. The Court is also mindful that a defendant's decision to testify can have dramatic results either in his favor or against him.
Experience has shown that a defendant's testimony may have the capacity to strengthen a weak State's case or conversely weaken a strong State's case. In this Court's view, the State's case after the State rested was extremely strong. The account given by [J.] was essentially unimpeached. Her account creates a compelling inference that defendant's uninvited accompaniment of the children over time and distance was designed to cultivate or lure them into leaving with him for illicit purposes. He also illustrated perseverance with his promise to return the next day when, in fact, he did return. Most compelling is the apparent reaction of the children who were able to intuit that the defendant was someone not to be trusted as seen with the older children's efforts to shield [T.] from him when she had to "pee" and the reporting of the curious on-goings to parents. Even the minds of these young children were able to discern the defendant's unseemly conduct.
The standard under Strickland is whether there "exists a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different." "Reasonable Probability" in this Court's mind, requires a finding that it was reasonable that the defendant's testimony would more likely than not have resulted in his acquittal. Given this Court's assessment as to the strength of the State's case and the defendant's rather weak offering of what his testimony would have been had he testified at trial, both as described above, this Court concludes that not only is there no reasonable probability that the outcome would have been different but that it is highly unlikely the outcome would have been different had the defendant testified.
Accordingly, defendant's Petition for Post Conviction Relief is DENIED.
We defer to the trial judge's factual findings, as they were based on sufficient credible evidence. See State v. Feaster, 184 N.J. 235, 277-78 (2005) (in reviewing decision on PCR petition, appellate court must "'give deference to the trial court's factual findings . . . when supported by adequate, substantial and credible evidence'") (quoting State v. Harris, 181 N.J. 391, 415 (2004)). The judge found defendant evasive and concluded that if he had testified at trial, he would have been unpersuasive in attaching an innocent purpose to his interactions over a two-hour period with three young children, which included his buying them food at a store blocks away from where he first encountered them; tying the shoe lace of one child; helping another perform a flip in the park by touching her back and stomach; and offering to give one a ride in his car.
We agree the judge determined defendant failed to meet a standard of prejudice set higher than the one adopted in Strickland. He mistakenly defined "reasonable probability" as used in Strickland to mean "a finding that it was reasonable that the defendant's testimony would more likely than not have resulted in his acquittal," instead of "a probability sufficient to undermine confidence in the outcome."
However, the misstatement was inconsequential, because the judge proceeded to conclude that defendant also failed to overcome a lower hurdle. He concluded, "[I]t is highly unlikely the outcome would have been different had the defendant testified." The finding it was "highly unlikely" the result would have been different would logically preclude a finding that it was "reasonably probable" the result would have been different. Thus, defendant failed to show prejudice as required by Strickland, supra.