On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant, Davon Nichols, appeals the denial of his motion for post-conviction relief (PCR) arising out of his conviction, along with his co-defendants, of the brutal rape, kidnapping, and robbery of K.M., and the brutal attack, kidnapping, and robbery of C.P. Defendant was also convicted of less serious offenses related to the two victims. The PCR judge rejected defendant's ineffective of assistance of counsel claims, which were based upon trial counsel's failure to move for a change of venue and counsel's failure to seek a Wade*fn1 hearing. We affirm substantially for the reasons expressed by Judge Richard J. Geiger in his comprehensive oral opinions of January 8 and February 1, 2010.
The State's proofs before the jury revealed that defendant and his co-defendants approached the victims while they were parked in a vehicle. They claimed they were police officers and pulled the female victim out of the car. Defendant, along with two other co-defendants, took turns raping her. Meanwhile, the male victim was forced out of the vehicle, assaulted, and forced to watch the rape of the female victim. He was struck with a baseball bat and stomped upon. The attack upon the female lasted approximately twenty-five minutes, after which she was taken to a secluded spot by a co-defendant and forced to perform oral sex. She pretended to be unconscious and her attackers eventually left. She returned to the area where she was first attacked and found the male victim hysterical and bleeding from the face. In addition to the rape and attacks, the perpetrators also took $31 from the male victim's wallet, $180 from the female victim's wallet, two compact disc players, and a cell phone.
The jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree robbery, N.J.S.A. 2C:15-1a; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and simple assault of both victims, N.J.S.A. 2C:12-1a. At sentencing, the court imposed an aggregate twenty-nine-year sentence with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we affirmed. State v. Nichols, No. A-6700-03 (App. Div. December 6, 2005).
On August 6, 2007, defendant filed his PCR petition. After counsel was assigned and a brief filed on defendant's behalf, the PCR judge conducted oral argument. Defendant urged that he was denied effective assistance of counsel because his trial counsel failed to move for a change of venue and also failed to move for a Wade hearing.
First, addressing the failure to move for a change of venue, Judge Geiger discussed the need to distinguish between cases "in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel." The judge found that the publicity in connection with defendant's prosecution fell in the latter category. In that regard, the court found defendant failed to establish a prima facie case of ineffective assistance of counsel because had such a motion been filed, it would have been denied. The court also found defendant failed to show any prejudice, and prejudice could not be presumed because
[f]oremost, there is no evidence of extreme community hostility against this [d]efendant. In fact, during voir dire, only a handful of potential jurors had previously read about the crime, and those that had, only seemed to have a vague recollection of the underlying facts.
Furthermore, neither [d]efendant nor the victims were prominent members of the community. And at the time of the attack, both the [d]efendant and the victims were teenagers.
Contrary to [d]efendant's assertions, there was no extensive media coverage of [d]efendant's trial. Defendant had presented only a handful of articles published over an extended period of time.
In fact, of the [twenty-seven] articles presented by [d]efendant, [fourteen] were published either during or after [d]efendant's trial. And the jury was instructed not to read the media coverage of the case throughout the trial.
The vast majority of the potential jurors on the panels were previously unaware of this case. Only one juror was seated who had previously read about the ...