September 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-00595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012 -
Before Judges Yannotti, Espinosa and Kennedy.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm, substantially for the reasons set forth in the written decision by Judge Scott J. Moynihan.
Defendant was charged in a thirty-four count indictment with three counts of first-degree sexual assault, N.J.S.A. 2C:14-2a(1) (counts one, nine, and seventeen); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) (counts two, ten, eighteen, and twenty-five); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(2)(c) (counts three, eleven, nineteen, and twenty-six); five counts of second-degre sexual assault, N.J.S.A. 2C:14-2b (counts five, thirteen, twenty-one, thirty-one, and thirty-three); four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts six, fourteen, twenty-two, and twenty-eight); four counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (counts seven, fifteen, twenty-three, and twenty-nine); and six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts eight, sixteen, twenty-four, thirty, thirty-two, and thirty-four). The charges arose from allegations that while working as a football coach for the Police Athletic League, defendant molested at least three boys on numerous occasions.
Defendant was tried before a jury over the course of twelve days. Prior to submitting the case to the jury, Judge Moynihan dismissed eight counts of the indictment (counts five, six, seven, twenty-two, twenty-three, twenty-four, thirty-three and thirty-four). Defendant was convicted of five counts of first-degree aggravated sexual assault (counts two, three, seventeen, twenty-five, and twenty-six), three counts of second-degree sexual assault (counts four, twenty-one, and twenty-seven), two counts of third-degree endangering the welfare of a child (the lesser-included offenses of counts eight and thirty), one count of fourth-degree criminal sexual contact (count twenty-nine), and one count of fourth-degree aggravated criminal sexual contact (count twenty-eight). Defendant was acquitted of counts one, nine through sixteen, eighteen through twenty, thirty-one, and thirty-two. On July 14, 2003, the court sentenced defendant to an aggregate term of fifty-nine years and imposed appropriate fines and penalties.
Defendant filed a direct appeal from his conviction in which he presented the following arguments:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON FACTORS RELEVANT TO DETERMINING WHETHER THE DEFENDANT HAD "SUPERVISORY OR DISCIPLINARY" POWER OVER THE VICTIMS AND WHETHER THE DEFENDANT STOOD "IN LOCO PARENTIS" TO THE VICTIMS DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE DEFENDANT FROM PRESENTING EXCULPATORY EVIDENCE PURSUANT TO N.J.R.E. 804(B)(1)(A).
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE [TERMS] VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014 [106 S. Ct. 1193, 89 L. Ed. 2d 308] (1986).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE FIFTY-NINE YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE. Defendant also raised the following arguments pro se:
THE TRIAL COURT [ABUSED] ITS [DISCRETION] IN NOT ORDERING INDIVIDUAL VOIR DIRE, AND BY NOT ORDERING A MISTRIAL AND IN FAILING TO APPLY THE PRESUMPTION OF PREJUDICE BECAUSE THE JURY VOIR DIRE, ALTHOUGH REMEDIAL AND PROPH[Y]LACTIC, WAS UNABLE TO CURE THE INHERENT PREJUDICE ASSOCIATED WITH JUROR SIX AND THE JURY AS A WHOLE READING AND [HAVING] THE NEWSPAPER HEADLINE ENTITLE[D] ["]EX-FOOTBALL COACH" AND [CONTAINED A "FULL BLOWN" PICTURE OF DEFENDANT IN HANDCUFFS DURING TRIAL.
PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL "BY SECURING PERJURED [TESTIMONY]" FROM 404B WITNESS (T.S.).
In an unpublished opinion, we affirmed his convictions and remanded for a new sentencing hearing on counts seventeen and twenty-five. State v. Smith, No. A-0815-03 (App. Div. Jan. 24, 2007) (slip op. at 38). The facts underlying defendant's conviction are set forth in our opinion and need not be repeated here. The Supreme Court denied defendant's petition for certification. State v. Smith, 192 N.J. 296 (2007). On remand, defendant was re-sentenced to an aggregate term of fifty-seven years.
Defendant filed a PCR petition on March 6, 2007 in which he alleged he had been denied the effective assistance of counsel and alleged various trial errors. On March 26, 2007 and April 22, 2007, defendant filed motions for a new trial and for reconsideration.
Judge Moynihan presided over an evidentiary hearing to address the issues raised by defendant's PCR petition. Both defendant and his trial counsel testified. Judge Moynihan authored a comprehensive written opinion that reviewed each of the arguments presented and denied the petition by order dated February 25, 2010.
In this appeal, defendant presents the following arguments for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION AND FAILED TO INTERVIEW WITNESSES
B. TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER
C. TRIAL COUNSEL FAILED TO ELICIT EVIDENCE THAT DEFENDANT HAD A SCAR WHICH THE VICTIMS FAILED TO MENTION
D. TRIAL COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO OBJECT TO THE JURY CHARGE
E. TRIAL COUNSEL FAILED TO FILE PRE-TRIAL MOTIONS REQUESTED BY DEFENDANT
E(1) TRIAL COUNSEL FAILED TO FILE A SEVERANCE MOTION
E(2) TRIAL COUNSEL FAILED TO FILE A MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5
In a pro se supplemental brief, defendant argued that the public defender who represented him in pretrial proceedings was ineffective for various reasons and had a conflict of interest; that appellate counsel was ineffective; and that the State's failure to counter certain factual assertions should be deemed a concession that the assertions are true.
We are not persuaded by any of these arguments and affirm, substantially for the reasons expressed in Judge Moynihan's written opinion.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05 N.J. 42, 52 (l987).
In the course of his written opinion, Judge Moynihan made specific credibility findings, which are entitled to our deference, State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); and applied these standards in analyzing each of the arguments presented to him.
In rejecting defendant's argument that his counsel had been ineffective in failing to interview or present certain witnesses at trial, Judge Moynihan observed that defendant had failed to present any affidavit or certification from any of the witnesses to show what they would have said if called at trial. Pursuant to Rule 3:22-10(c), defendant was required to present a certification by that witness concerning the testimony the witness would have been prepared to give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). In the absence of such evidence, Judge Moynihan correctly concluded that defendant had failed to meet either of the prongs of the Strickland/Fritz test to show that relief was warranted.
As to defendant's claim that his counsel failed to consult with him in a meaningful manner, Judge Moynihan recounted the conflicting testimony of both defendant and counsel. While counsel testified that he had met with defendant ten to twelve times, each visit lasting one to one and one-half hours, defendant alleged that counsel had never met with him prior to trial and only met with him twice during the trial. Judge Moynihan compared defendant's assertions to his testimony at the PCR hearing and the actual trial record, with specific references to defendant's testimony that his counsel had failed to follow up on specific issues he raised with him; that he discussed his decision to testify at trial; that the "extensive direct examination" of defendant at trial was "well-prepared"; that in response to counsel's complaint about problems in meeting with defendant during the trial, the court had remanded defendant to the Union County Jail and allowed time for consultations prior to a pre-trial hearing and prior to trial. Judge Moynihan noted that trial counsel was prepared for all legal arguments and cited specific examples of his preparedness and effectiveness effective at trial, concluding, "From opening to summation he was clearly well-versed and well prepared to handle the case." As Judge Moynihan concluded, defendant has failed to show that his counsel's performance was deficient, let alone that his rights to a fair trial were prejudiced.
Defendant also argued that his counsel was ineffective in failing to produce evidence that he had a scar or boil on his hip or buttocks. He contended that, because this scar or boil would have been visible when he was naked, this evidence could have been used to impeach the credibility of the victim witnesses. However, counsel testified at the evidentiary hearing that when he asked defendant for witnesses who could verify the existence of the scar or boil, defendant was unable to name any and there were no other means to corroborate defendant's statement that it existed. Although defendant contended at the PCR hearing that such corroboration was available through certain witnesses whom he identified to counsel, he produced no certifications, medical records, or other evidence to show that such corroboration existed.
Judge Moynihan described counsel's testimony regarding his weighing of the possible positive and negative consequences of pursuing this issue in the absence of any corroboration and concluded, properly, that counsel made a strategic decision in declining to pursue this issue. "In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Castagna, 376 N.J. Super. 323, 360 (App. Div. 2005), rev'd, 187 N.J. 293 (2006) (citing Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)).
In addressing defendant's contention that his counsel was ineffective in failing to object to the jury charge, Judge Moynihan noted that this issue was raised and decided in defendant's direct appeal. We concluded that the instruction sufficiently instructed the jury on the elements of aggravated sexual assault and contact. As a result, this issue was procedurally barred. R. 3:22-5.
Defendant also argued that his counsel was ineffective in failing to file pretrial motions that he had requested. It was not until the evidentiary hearing that defendant identified what motions he had requested, i.e., a severance motion to require separate trials for the allegations of each of the five victims and a motion to dismiss the indictment on speedy trial grounds. Judge Moynihan reviewed the legal principles applicable to the severance motion and concluded there were numerous grounds to justify joinder. Defendant was tried within nine months of his indictment and cited no prejudice he suffered because he had not been tried within one hundred and eighty days of indictment. Judge Moynihan observed that defendant failed to produce any evidence of the four factors applicable to the determination whether an indictment should be dismissed on speedy trial grounds. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972) (identifying the four factors as the "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant"); State v. Long, 119 N.J. 439, 470 (1990). We concur with Judge Moynihan's conclusion that, even if these motions had been filed, the record fails to show that they enjoyed any likelihood of success and therefore, the second prong of the Strickland-Fritz test was not satisfied.
We are satisfied that the remaining arguments made by defendant pro se and his counsel lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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