September 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MASSEY, A/K/A ANTHONY L. MASSEY, ANTHONY STEWART, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-03-0425.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Alvarez and Waugh.
Defendant Anthony Massey appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Massey's conviction arises out of an incident that took place on July 22, 1998, in the victim's third-floor apartment in North Bergen. J.L., the victim, resided in the apartment with her two-year-old son, B.L. They went to sleep at approximately 11:30 p.m., with B.L. sleeping beside J.L. in her bed. At approximately 2:00 a.m., J.L. was awakened by "a yell." When she opened her eyes, a man, later identified by her as Massey, was next to her holding a metal spatula and telling her not to yell. Massey "started putting his hand under [J.L.'s] pajama, and . . . said he wanted money, $2,000." Massey assaulted her with the spatula. J.L. testified that Massey then "started rubbing [her] all over."
The incident awoke B.L., who started to yell. Massey shouted, "Fuck you, baby." He then slapped B.L., knocking him off the bed. At that point, J.L. told Massey, "Do whatever you want with me, but please don't do anything to my son." J.L. testified that she did not resist.
Massey "started inserting his finger into" her vagina and anus. After finishing his assault of J.L., Massey again demanded money. When J.L. turned on the light to look for money, she saw Massey's face. Massey was known to her because he had performed some work in her apartment when she first moved in.
Massey threw her against the wall, and pulled her back onto the bed. J.L. testified that he penetrated her three times, forced his penis into her mouth during the continued assault, and took thirty or forty dollars. Massey finally left her apartment at approximately 3:40 a.m.
Massey was charged in Hudson County with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); fourth-degree child abuse, N.J.S.A. 9:6-1(e) and 9:6-3 (count nine); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten); third-degree possession of a weapon, a knife with a sharpened edge, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); and first-degree armed robbery, N.J.S.A. 2C:15-1 (count twelve).
Following a pretrial hearing, the trial judge denied Massey's motion to suppress the statements he gave to the investigating police officers, in which he denied having any sexual contact with J.L. The case then went to trial before a jury.
Massey testified at trial. Although he had denied any involvement in the incident when arrested, his trial testimony was that he had consensual sexual relations with J.L., whom he had met when he was working in her apartment. He claimed that J.L. was concerned that her former husband, who sometimes lived with her, would find out about their sexual activity and rushed him out of the apartment. He claimed that he saw a Hispanic male in the area when he left the apartment building.
The trial judge dismissed the child abuse and endangering charges in counts nine and ten at the conclusion of the evidence. The jury found Massey not guilty of the aggravated assault charge contained in count eight, but convicted him on all other counts.
At sentencing, the trial judge merged the sexual assault, aggravated criminal sexual contact, and criminal sexual contact convictions from counts three, four, and five into the first-degree aggravated sexual assault conviction from count one, and sentenced Massey to a twenty-year term of imprisonment, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year period of imprisonment, with a NERA eighty-five percent parole disqualifier, on the second-degree armed burglary conviction from count two, and a concurrent five-year term, with a two and one-half year parole disqualifier, on the third-degree criminal restraint conviction from count seven.
The trial judge merged the terroristic threats and weapon convictions from counts six and eleven into the first-degree armed robbery conviction from count twelve, and sentenced Massey to a fifteen-year term of imprisonment, with a NERA eighty-five percent parole disqualifier, to run consecutive to the other sentences. Consequently, the aggregate term of imprisonment was thirty-five years with an eighty-five percent term of parole ineligibility. Applicable mandatory fines, penalties, and a period of parole supervision were also imposed.
Massey appealed his conviction and we affirmed. State v. Massey, No. A-5709-01 (App. Div. Oct. 15, 2003). The Supreme Court denied Massey's petition for certification. State v. Massey, 179 N.J. 310 (2004).
Massey filed a petition for post-conviction relief in March 2004. The PCR judge, who had presided at the trial, denied Massey's request for an evidentiary hearing and dismissed the petition for post-conviction relief in an oral decision.
Massey appealed, arguing that the PCR judge erred in refusing to hold an evidentiary hearing with respect to his allegations that his trial and appellate counsel had provided constitutionally ineffective assistance of counsel. We affirmed the decisions of the PCR judge on all issues except for Massey's argument that his trial counsel was ineffective in failing to call or interview Martin Laderman, the apartment manager, whom Massey contends would have testified that J.L.'s former husband sometimes lived at the apartment, and in failing to explore other potential witnesses. We remanded for an evidentiary hearing. State v. Massey, No. A-1857-06 (App. Div. Oct. 16, 2008). The Supreme Court denied Massey's petition for certification. State v. Massey, 198 N.J. 313 (2009).
The remand hearing was held on December 10, 2009. Massey's trial counsel testified to his recollection that either he or his paralegal had contacted Laderman before the trial. However, he believed that the contact concerned the issue of whether Massey had a master key for the apartment rather than the presence of the former husband. He also testified that he had been privately retained, but had not been given funds specifically to hire a private investigator. The attorney further testified that he "had copious conversations with [Massey] I suppose about every aspect of this case" and that he would have hired an investigator "had [he] felt that he needed . . . one." In addition, trial counsel did not recall Massey asking that he call Laderman as a witness, but testified that he would have contacted him had Massey made that request.
Laderman also testified at the hearing. According to Laderman, J.L. told him that she was moving to her new apartment to avoid abuse by her husband. He further testified that he received complaints from other tenants that a man was "in and out of the building in her unit" and that there was "arguing during all hours of the night." He spoke to J.L. about it. She told him that her husband was "trying to get back together" and that she had given him a key. On cross-examination, Laderman stated that J.L. told him that the man coming to her apartment was "the father of her child" and that another tenant had described him as "the husband, quote/father of the child." Laderman testified that, on one occasion, he saw a man "running out [of J.L.'s] apartment, slamming the door, stomping down the stairs, [and] out the building."
According to Laderman, he was not contacted by the trial attorney or anyone from the attorney's office. However, he did speak with an investigator, whom he understood was from Massey, but was not sure. He gave the man the same information to which he testified at the hearing.
The PCR judge delivered an oral decision later on the day of the hearing, having heard counsel's arguments following the testimony that morning. Based upon Laderman's testimony, the judge found that the only potential additional witness Laderman could have identified for trial counsel was the tenant living below J.L., whom defense counsel had in any case called as a witness at the trial and whose testimony*fn1 had not been helpful to Massey.
The judge found Laderman's "credibility . . . of serious concern." In that regard, he pointed to the fact that J.L. had a civil suit pending against Laderman at the time of the criminal trial, concluding that Laderman was not a disinterested witness with respect to whether Massey engaged in a sexual assault or a consensual relationship with J.L. In addition, he observed that much of the testimony Laderman gave at the PCR hearing would not have been admissible at trial because it was hearsay. He noted that Laderman had only one direct observation of a man leaving J.L.'s apartment.
The judge stressed that Laderman, like Massey, assumed the father of J.L.'s child and her husband were the same person, whereas J.L. had testified at trial that they were different people. The judge noted that J.L.'s allegations of physical abuse related to her husband, rather than to the child's father.
The judge concluded that, even if Laderman's testimony had been offered at trial, the verdict would not have been different. He explained his reasons in detail. He concluded his discussion with the following:
Finally, on this topic, one must remember that any juror considering this second version of events given by the Defendant would be aware that the Defendant had first lied to the police and denied any intimacy with the victim and only changed to this story after DNA evidence proved him conclusively to be a liar.
Contrasted with the Defendant's incredible, illogical, unreasonable, and inconsistent versions of these events, that juror would hear a single, consistent, corroborated version of events from the victim. There was no doubt who was telling the truth and who was lying at this trial, and the introduction of the limited evidence available from Laderman would not have affected the credibility calculus in the mind of a reasonable juror who paid attention to the Court's instructions on credibility.
The claim of ineffectiveness regarding the failure to investigate Laderman's knowledge must also be considered in context.
First, as indicated earlier, Laderman's own testimony indicated he had spoken with an investigator working for this Defendant prior to trial.
Counsel had a recollection that Laderman was spoken with regarding the existence of a pass key available to the Defendant. Insofar as Counsel is not required to personally speak with every potential witness, the facts produced here by the Defense do not establish by any standard that Counsel failed to explore the potential of Laderman as a witness.
Counsel's recollection in this regard or the lack of recollection is understandable. One cannot forget that Laderman's alleged importance as a witness did not become known to Counsel until shortly before the trial. For the 15 months between arrest and DNA results, the Defendant denied even being present at the scene. If he wasn't at the scene, then he couldn't have seen the mysterious Hispanic male or assumed that man was the victim's husband, rendering Laderman's entire testimony irrelevant.
Consequently, Laderman was not even on Counsel's radar until shortly before trial. He simply had no reason to speak with him, other than to make the inquiry that he did about the availability of a pass key to the Defendant.
Counsel cannot be faulted, even if the facts were interpreted as indicating a failure to investigate Laderman during the time period, his own client lied to him regarding the essential facts upon which he had to base his Defense. During that period, the fault lies entirely with the Defendant, thereby concealing from his attorney the facts necessary to assess Laderman's importance to the Defense.
To summarize, I find the proofs establish Mr. Laderman was interviewed about the matter by an investigator working on the Defendant's behalf pretrial.
I find that the failure to focus more attention on Laderman's potential as a witness was the direct result of the Defendant's deception of his lawyer and not a consequence of Counsel's professional conduct of this Defense.
I further find that in light of the fact that [the downstairs neighbor] was on the State's witness list, Counsel understood he could and, in fact did, introduce evidence respecting the husband's presence at the victim's building through [her] and that therefore Counsel could reasonably have believed Laderman was unnecessary as a witness.
However, even if one were to consider Counsel ineffective for not pursuing Laderman, that error could not have and did not have any effect on the outcome of the trial.
If Laderman had testified to the evidence he revealed on the remand at trial, there is absolutely no doubt in my mind that his testimony would not in any way have altered the result. The entire Defense was based upon the testimony of a lying Defendant and multiple illogical and unreasonable inferences he sought the jury to draw from unreliable evidence.
The State's case, on the other hand, was consistent, cogent, logical, reasonable and corroborated by scientific and medical evidence.
Our standard jury instructions on the State's burden of proof advise the jury that the State must prove the Defendant guilty beyond a reasonable doubt. The law does not require proof beyond a possible doubt.
The evidence presented by the Defense in this matter, even supplemented with Laderman's testimony would raise no more than a possible doubt as to the Defendant's guilt. A reasonable jury hearing this case would, as the jury here did, find this Defendant guilty beyond a reasonable doubt.
The judge entered an order dismissing Massey's PCR petition. This appeal followed.
Massey raises the following issues on appeal through counsel:
POINT I - THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S PETITION WHERE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CALL A KEY WITNESS, MARTIN LADERMAN.
(a) Martin Laderman's Testimony Would Have Been Admissible At Defendant's Trial Because It Was Based Upon Personal Knowledge Of [J.L.]'s Statements, And Qualified For Admissibility Under The Prior Inconsistent Statement Exception To The Hearsay Rule
(b) The PCR Court Erred In Finding That Defense Counsel Or Someone On His Behalf Interviewed Laderman
(c) Trial Counsel's Failure To Interview Laderman Deprived The Defendant Of The Ability To Call Additional Witnesses/Tenants Living In The Apartment Building Who Could Testify To The Disturbances Created By [J.L.] And Her Cohabitant; Whether It Were Her Husband Or Father Of Her Child Was Immaterial
(d) Defendant Satisfied Both Prongs Of The Strickland Test, And Defendant's Petition For Post Conviction Relief Should be Granted In a supplemental letter brief filed by Massey personally, he raises these additional arguments:
POINT I: TRIAL COURT RECOLLECTION OF [THE]
TRIAL FACTS AND DISCOVERY WAS FLAWED HOWEVER CONSISTENT WITH HIS DEFICIENT COUNSEL POINT II: THE PREMISE ON WHICH TRIAL COURT'S DECISION WAS BASED IN DENYING DEFENDANT'S PCR IS A PRIME EXAMPLE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; AND IS THE PREVAILING PROOF OF THE PREJUDICE THAT [THE] DEFENDANT HAS SUFFERED AS A RESULT "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2(a), a criminal defendant is entitled to PCR relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
For the purposes of our opinion, we will assume that Massey has satisfied the first Strickland prong, although we note that the PCR judge found otherwise. We will focus instead on the judge's determination that Laderman's testimony would not have produced a different result.
Massey correctly argues that Laderman would have been permitted to testify that J.L. told him that she had given the key to her apartment to a male and that he sometimes visited her. He would also have been permitted to testify to his single observation of a man leaving the apartment, as well as J.L.'s identification of the man. However, it is clear from Laderman's testimony that he was uncertain whether the person mentioned by J.L. and seen by him was J.L.'s husband or the father of her child, because Laderman assumed they were the same person. Once he was challenged on the issue, Laderman began to use both references. For example, he testified that, when he asked J.L. about the man he saw running out of the apartment, she responded "the father of my child, my husband." Laderman's uncertainty, in light of J.L.'s testimony that they were two different people, would have significantly undercut the value of his testimony.
The judge's careful analysis of Laderman's potential testimony, which he did not find credible,*fn2 in light of the trial evidence, which the judge had experienced firsthand as the trial judge, further demonstrated that a different result was unlikely. For example, the judge pointed to Massey's initial denial of having had any sexual relationship with J.L., followed by his revised version of events, involving a consensual relationship, fear of the husband, and the unknown male, which was put forth by Massey only after the results of the DNA testing were received shortly before trial. While Laderman's testimony, if believed, might have added a bit to the plausibility to Massey's revised version of events, the judge correctly noted that it did not explain the fresh injuries to the child, which were clearly inconsistent with a consensual sexual relationship between Massey and J.L.
Our review of the record satisfies us that Massey failed to satisfy the second prong of the Strickland test because he failed to demonstrate "a reasonable probability that . . . the result of the [trial] would have been different" had Laderman testified at trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our review of the record of the remand hearing does not "undermine" our "confidence in the outcome" of the trial. Ibid.
Consequently, we affirm the dismissal of Massey's PCR petition, substantially for the reasons set forth in the PCR judge's oral decision.